Legal Ethics in Authoritarian Legality: A Response to David Luban

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 Losener 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 Losener 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.