Legal Ethics in Authoritarian Legality: A Response to David Luban

14 Pages Posted: 15 Feb 2021

See all articles by Leora Bilsky

Leora Bilsky

Tel Aviv University Buchmann Faculty of Law

Natalie R. Davidson

Tel Aviv University - Buchmann Faculty of Law

Date Written: February 3, 2021

Abstract

In “Complicity and Lesser Evils: A Tale of Two Lawyers” David Luban considers the dilemma of a decent person employed by the government or offered a government position in an evil regime. Through an analysis of two legal advisors in the Third Reich, Bernhard Lösener and Helmuth James von Moltke, who remained on the job and arguably saved lives, Luban challenges Hannah Arendt’s contention that remaining in office in these conditions is necessarily to support the regime. In this response, we remain within Luban’s primarily consequentialist perspective, and ask, like him, whether any good can be done by lawyers staying on the job. However, we challenge his analytical framework for being overly individualist and agentist. We argue that, if we expand our perspective to the structure of evil regimes and the ways they inflict harm, we will notice important consequences of remaining and leaving that Luban fails to take into account. In particular, we argue that understanding the complex part played by legal institutions and legal discourse in authoritarian and semi-authoritarian regimes would lead to the realization that lawyers face a particularly sharp dilemma in such regimes, as both their possibilities of doing good and of strengthening the regime are strong. We proceed in three steps. First, we show that Luban’s analysis is narrowly focused on individual agency. We then draw on scholarship on the Third Reich, bureaucratic crimes, and authoritarian uses of law to outline the structural characteristics and legal foundations of authoritarian wrongs. Finally, equipped with this theoretical background, we analyze anew the lawyer’s dilemma. Applying a structural perspective cognizant of the role of law in repression to the stories of Lösener and Moltke as well as of two other lawyers in the Third Reich, Ernst Fraenkel and Georg Konrad Morgen, we argue that the lawyer’s dilemma is more difficult to resolve than Luban suggests.

Keywords: Legal Ethics, Legal History, Law and Authoritarianism

JEL Classification: K10

Suggested Citation

Bilsky, Leora and Davidson, Natalie R., Legal Ethics in Authoritarian Legality: A Response to David Luban (February 3, 2021). Forthcoming inGeorgetown Journal of Legal Ethics, Vol. 34, 2021, Available at SSRN: https://ssrn.com/abstract=3778546 or http://dx.doi.org/10.2139/ssrn.3778546

Leora Bilsky

Tel Aviv University Buchmann Faculty of Law ( email )

Ramat Aviv
Tel-Aviv, 6997801
Israel

HOME PAGE: http://www.tau.ac.il/law/bilsky/

Natalie R. Davidson (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel

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