Complicity and Lesser Evils: A Tale of Two Lawyers

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