Lawyers Face Stark Choices in Unsavory Regimes
Public officials, particularly lawyers within governmental structures, confront profound ethical quandaries when serving under administrations they deem morally repugnant. The decision to remain in a position or to resign becomes a critical juncture, fraught with implications for personal integrity and the potential to shape outcomes. This predicament, explored in David Luban's "Complicity and Lesser Evils: A Tale of Two Lawyers," highlights the agonizing balance between complicity in harmful policies and the possibility of mitigating those harms from within.
The central tension lies in the dual role these lawyers can play. Staying in their posts may offer the sole avenue to steer detrimental policies toward less damaging outcomes, or "lesser evils." Furthermore, their continued presence can serve to bolster the rule of law when it is under direct assault. Yet, this continued service risks making them participants, however indirectly, in objectionable actions. There's also the danger that prolonged exposure to such environments could desensitize them to wrongdoing, much like their continued employment may normalize such actions for others.
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The Weight of Association
Luban's examination, referencing a historical context involving lawyers in the Third Reich, probes the very nature of association with an "evil regime." The article grapples with whether mere professional engagement constitutes implicit endorsement or support. It underscores that a lawyer's internal struggle—whether to emigrate or to remain and attempt to influence policy from within—is not a trivial one. The act of remaining, even when driven by a desire to effect positive change or uphold legal principles, carries a significant ethical burden.
Acknowledging Nuance and Limits
While the article draws illuminating parallels, it is crucial to note that it does not equate disparate historical or political figures. Luban acknowledges the limitations of such comparisons, emphasizing that standing firm against authority and advocating for what one perceives as lawful and right are central to the ethical considerations. The discourse around these issues also touches upon related concepts such as 'institutional evils,' 'culpable complicity,' and 'duties to engage in moral repair,' suggesting a broader academic conversation about responsibility within flawed systems.
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Publication Details
The work, titled "Complicity and Lesser Evils: A Tale of Two Lawyers," by David Luban, was published in the Georgetown Journal of Legal Ethics. Initial reports place its publication around 2021, with further mentions indicating it was forthcoming during that period. More recent discussion surrounding the article appeared in April 2025.
