Response: Legal Ethics in Authoritarian Legality

Response: Legal Ethics in Authoritarian Legality

LEORA BILSKY* AND NATALIE R. DAVIDSON**

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 govern-

ment position in an evil regime. Through an analysis of two legal advisors in the

Third Reich, Bernhard Lo

¨sener 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 leav-

ing 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 par-

ticularly 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 Lo

¨sener and Moltke as well as of two other lawyers in

the Third Reich, Ernst Fraenkel and Georg Konrad Morgen, we argue that the law-

yer’s dilemma is more diff‌icult to resolve than Luban suggests.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666

* Full Professor, Benno Gitter Chair in Human Rights and Holocaust Research, and Director of the Minerva

Center for Human Rights, Tel Aviv University Buchmann Faculty of Law. The authors thank Nir Gonen for

research assistance. Research for this article was supported by the Israel Science Foundation, Grant no. 1163/

19. © 2021, Leora Bilsky & Natalie R. Davidson.

** Lecturer (Assistant Professor), Tel Aviv University Buchmann Faculty of Law.

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