In September 1935, the Nazi Party asked Bernhard Lösener to draft a large portion of the infamous Nuremberg Laws, which deprived Jews of citizenship rights and eventually led to the Holocaust. Lösener was clever enough to convince party officials that a person should be considered Jewish only if he/she had at least three, rather than two, Jewish grandparents. Lösener later argued that by collaborating with the Nazi regime, he was able to save thousands from the Holocaust by reclassifying them as non-Jews. Indeed, by one estimate, he saved as many as 100,000 lives.* If Lösener had not collaborated, someone else would have written the Nuremberg Laws, and they would have been even worse. Does this justify his actions?
*Robert Nelson, Revolution and Genocide, University of Chicago Press (1992) p 324.
Thanks to David Goldman, founder of FASPE, for suggesting this dilemma.
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The dilemma of whether one should collaborate with evil to avoid greater evil confronts nearly everyone at some point, and some people every day. Should we work “inside the system” to make things a little better, or refuse complicity? There is no one answer. The question must be considered case by case, and I will analyze Lösener’s case. I won’t try to guess whether Lösener’s defense was sincere or merely an excuse manufactured after the fact. The issue I want to examine is whether it is ethical to collaborate for the reason he states.
Lösener relies on what ethicists call a futility argument: if I don’t do it, someone else will. In fact, things will be even worse if someone else does it. The argument is easier to assess in another (all-too-realistic) dilemma. Suppose a commanding officer orders a guard at a military prison to torture inmates. The guard tells himself that if he refuses, he will be court-marshalled for insubordination, and the commander will order someone else to do it. If he complies, the prisoners will be no worse off, and he won’t have to suffer unjust punishment. So he may as well follow orders. The futility argument seems to make a certain amount of sense, but it also seems to condone horrible behavior.
This paradox is not hard to resolve. There are two relevant ethical principles: the utilitarian principle, and the autonomy principle. The utilitarian principle says that we should act in a way we can rationally believe will maximize total welfare without violating other ethical principles. The autonomy principle says that we should not adopt an action plan that we are rationally constrained to believe is inconsistent with someone else’s ethical action plan, unless that person gives informed and/or implied consent. Both principles must be observed!
The guard’s futility argument shows that his complicity satisfies the utilitarian principle. Total utility is greater if he goes along. Yet applying torture is a grievous violation of autonomy. It essentially deprives the prisoner of his humanity during the torture and therefore interferes with any ethical action plan he might have. On the other hand, refusing to apply torture satisfies both principles. It satisfies the autonomy principle even though it interferes with the commander’s action plan, because the commander’s plan is unethical. It satisfies the utilitarian principle because the principle does not require him to engage in otherwise unethical conduct.
Let’s apply this lesson to Lösener’s case. His complicity with the Nazis may well have maximized utility, for the reason he states. If we grant that it did, the issue turns on whether he was rationally constrained to believe that drafting part of the Nuremberg Laws would interfere with ethical action plans. As a matter of historical fact, it did exactly that. It led to oppression of the Jewish population and eventually to mass murder. Lösener might have had no good reason to believe that the Laws would lead to concentration camps and genocide (it is debated whether he knew about Nazi death camps at the time). But he was certainly constrained to believe that wholesale deprivation of civil rights would lead to oppression of the Jewish population, thus preventing them from carrying out countless ethical action plans. The same would have resulted if someone else wrote the Laws, but that is irrelevant. The fact remains that his action plan (writing the Laws) was inconsistent with the ethical action plans of millions of Jews. Lösener therefore violated the autonomy principle, and his complicity with the Nazis was immoral.