Complicity and Lesser Evils: A Tale of Two Lawyers

54 Pages Posted: 6 Apr 2021

See all articles by David Luban

David Luban

Georgetown University Law Center

Date Written: April 1, 2021

Abstract

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed.

This article will appear in a symposium with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince.

Keywords: Legal Ethics, Legal Philosophy, Legal Theory, Legal History, Legal Biography, Law and Literature

Suggested Citation

Luban, David, Complicity and Lesser Evils: A Tale of Two Lawyers (April 1, 2021). Georgetown Journal of Legal Ethics, Forthcoming. 2021. Georgetown Law Faculty Publications and Other Works. 2368., Available at SSRN: https://ssrn.com/abstract=3817495 or http://dx.doi.org/10.2139/ssrn.3817495

David Luban (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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