Complicity and Lesser Evils: a Tale of Two Lawyers

Complicity and Lesser Evils: A Tale of Two

Lawyers

DAVID LUBAN*

ABSTRACT

Government lawyers and other public off‌icials sometimes face an excruciat-

ing 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 opportu-

nity 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 re-

sistance; the other, Bernhard Lo

¨sener, was a Nazi by conviction who neverthe-

less claimed to have secretly fought against the persecution of Jews from the

improbable post of legal adviser on Jewish matters. The Article critically exam-

ines their careers and self-justif‌ications. It frames its analysis through two phil-

osophical 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.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615

* University Professor in Law and Philosophy, Georgetown University Law Center; Distinguished Chair in

Ethics, Stockdale Center for Ethical Leadership, United States Naval Academy. This paper would have been

impossible without the help of my research assistants, Alistair Somerville and Gabrielle Metzger. Johannes

Hegemann and Meredith Manuel-Ruley gave valuable editorial help, including with German-language sources.

Thanks as well to Pierce Randall and Mitt Regan for comments on an early draft, and to Bob Goodin, Erica

Newland, and Jim Whitman for their careful reading of a later draft and excellent suggestions. Finally, I am

grateful to the Fellowships at Auschwitz for the Study of Professional Ethics, and especially to David

Goldman, Eric Muller, and Thorsten Wagner. It was at FASPE’s 2016 program that I f‌irst learned about the ca-

reer of Bernhard Lo

¨sener. © 2021, David Luban.

613

I. A FABLE ABOUT YESTERDAY AND TODAY . . . . . . . . . . . . . 616

II. HANNAH ARENDT’S MORAL ARGUMENT . . . . . . . . . . . . . . . 619

III. LO

¨SENER AND MOLTKE: A DOUBLE MORAL BIOGRAPHY . . 623

IV. A NOTE ON SOURCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 625

V. LO

¨SENER AT THE JEWISH DESK. . . . . . . . . . . . . . . . . . . . . . 627

VI. HOW LO

¨SENER GOT THERE . . . . . . . . . . . . . . . . . . . . . . . . . 629

VII. LO

¨SENER’S BATTLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636

VIII. STAYING OR QUITTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637

IX. SPIELRAUM IN THE INTERIOR MINISTRY. . . . . . . . . . . . . . . . 639

X. VON MOLTKE AND THE ABWEHR. . . . . . . . . . . . . . . . . . . . . 640

XI. MOLTKE’S LEGAL WORK. . . . . . . . . . . . . . . . . . . . . . . . . . . 648

XII. MOLTKE’S SPIELRAUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 650

XIII. MOLTKE’S CONSCIENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 652

XIV. TAKING STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654

XV. BADNESS, RESPONSIBILITY, CONTRIBUTION, SHARED

PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657

XVI. CONDITIONS FOR LESSER-EVILISM TO SUCCEED . . . . . . . . . 660

XVII. AN EPILOGUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662

614 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:613

INTRODUCTION

When a regime comes to power that does awful things, or tries to, or threatens

to, how should decent people in the government respond? Staying in their jobs

may turn them into “desk perpetrators”—a German label for off‌icials who set

wrongdoing in motion by drafting documents and signing papers in the quiet of

an off‌ice.

1

But quitting the job may take away their only chance to temper awful

policies—to become “desk mitigators.” Yet mitigation is often the f‌lip side of

perpetration: to implement an evil policy, but try to make it less bad, is still imple-

menting an evil policy. Furthermore, to stay in the job runs two moral risks. First,

I may become inured to evil, with my own judgment eroded by those around me,

so that the abnormal becomes normalized and I lose the capacity to tell right from

wrong. Second, I may be normalizing evil in the eyes of others and perhaps cor-

rupting their judgment. Seeing me at my desk day after day, going about business

as usual, contributes to smudging the line between the routine and the pathologi-

cal in their minds. The two risks mirror each other: together, we move the moral

baseline and warp each other’s judgment.

What is a conscientious off‌icial to do? Stay or quit? A parallel dilemma faces

the conscientious person who is not yet in government but gets a job offer that

may entangle her. Should she take the job hoping to do good, or is she fooling

herself?

Hannah Arendt, ref‌lecting on the swift collapse of public morality in the early

days of the Third Reich, offered a stern answer: in politics, obedience is support—

meaning that whether you like it or not, staying in the regime supports it.

2

And,

she warns, “those who choose the lesser evil forget very quickly that they chose

evil.”

3

Get out and go home.

Is she right, or is her stance “germ-proof moralism,” as Arendt puts the objec-

tion against herself?

4

This is an impossible question to answer in the abstract. In

this Article, I approach it through two case studies of lawyers who held important

posts in the Third Reich, acted as desk mitigators, and saved lives. One of them,

Count Helmuth James von Moltke, is a famous martyr of the anti-Hitler resistance,

the Widerstand. The other, Bernhard Lo

¨sener, is a more problematic f‌igure—an

1. “Desk perpetrator” is not a common term in the United States, although we have no trouble understanding

the concept. It has become a commonplace term in Germany (the German word is Schreibtischta¨ter), a byprod-

uct of that country’s efforts to come to terms with bureaucratic murder during the Nazi regime. On the history

of the term and its spillover into popular usage, see Dirk van Laak, The Trope of the Schreibtischta¨ter in

Postwar German Discourse (manuscript).

2. See Hannah Arendt, Personal Responsibility Under Dictatorship, in RESPONSIBILITY AND JUDGMENT 17,

46–47 (Jerome Kohn ed., 2003) [hereinafter ARENDT, Personal Responsibility]; HANNAH ARENDT, EICHMANN

IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL 279 (rev. ed. 1963) [hereinafter ARENDT, EICHMANN IN

JERUSALEM]; Hannah Arendt, Thinking and Moral Considerations: A Lecture, in RESPONSIBILITY AND

JUDGMENT 17, 46–47 (Jerome Kohn ed., 2003) [hereinafter ARENDT, Thinking and Moral Consideration].

3. ARENDT, Personal Responsibility, supra note 2, at 36.

4. Id.

2021] COMPLICITY AND LESSER EVILS 615