Panel Discussion: Complicity and Lesser Evils

April 12, 2021

Event Details and Abstracts from Our Speakers

Lesser Evils Poster

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Abstracts from Our Speakers

The Primary Piece

Professor David Luban

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.

Response Pieces

Professors Leora Bilsky & Natalie R. Davidson

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.

Professor Kathleen Clark

After the 2016 election, commentators published a flurry of essays with advice on whether lawyers and federal officials should remain in government during the Trump administration. In this article, I review those essays, including Professor David Luban’s stern advice about the risk of remaining. I also discuss three key concepts from Professor Luban’s article for this symposium: desk perpetrators, desk mitigators, and operational maneuvering room, and explore how they apply to Trump administration officials who engaged in internal resistance or resigned in protest. More than one hundred federal officials in the administration resigned in protest, many of whom acted in concert with each other. The power of concerted action is most evident when a group of powerful officials together threaten to resign as a way of deterring abusive conduct. Many of these officials wrote letters or op-eds explaining their decision to resign, often sounding in the language of morality, emphasizing their disagreement with Trump policies and rhetoric they found repugnant.

Ms. Erica Newland

I come to Professor David Luban’s incisive Complicity and Lesser Evils not as a historian, philosopher, legal scholar, or professional ethicist, but rather as a practitioner.

As someone whose tenure as a career attorney at the U.S. Department of Justice (DOJ) covered the first two years of the Trump administration, I read Professor Luban’s article with unsettling, if not surprising, recognition. Building on Hannah Arendt’s work, Professor Luban perceptively captures the challenges my colleagues and I faced when deciding whether to stay and work within a terrible regime or to “just go home.”

In the reflections that follow, I evaluate Professor Luban’s framework against the case study of my own experiences and suggest an additional set of questions to build out his work. Specifically, I suggest supplementing Professor Luban’s framework with two questions: did the government official who chose to stay leave much personal spielraum[1] unused? And did the government official’s decision to stay “make” spielraum for the regime? I argue that by adding these two questions, the Luban framework can offer a better guide for government officials who are trying to walk a moral path. Finally, I address the reality that federal workers have all types of good reasons for holding tight to their jobs, and I identify a set of counterincentives, generated on the outside, which can help empower civil servants to engage in a more honest and unburdened decision-making process about whether to leave or how to stay. I argue that just as moral and patriotic judgment must be actively voiced on the inside, it must be actively welcomed by the outside.

Doctor Shannon Prince

David Luban asks how ethical people in government should respond when an unethical regime comes to power, noting that Hannah Arendt argued that to stay in such a regime supports it. I take the position that attempting to distinguish between ethical and unethical regimes can be problematic because even regimes deemed moral commonly commit evil. Thus, I argue that it is ethically permissible to serve in a regime that commits evil if certain conditions are met—if the good that one seeks to do is urgent enough, if one will not lose one’s moral clarity so as to confuse mitigating evil with affirmatively committing a moderate amount of it, and if one does not engage in both the bad and good acts of the regime under the belief that the latter can cancel out the former.