FASPE: Pockets of Freedom, and Sadness Underground

Here in Berlin I continue to find myself paying special attention in our tours and discussions to questions about how much freedom remains within systems and relationships of obedience and constraint.  As I write that I realize how abstract it sounds, but it's really just another way of saying what I said the other day about the Milgram experiments.  What interested me then was not really the fact that Milgram's subjects were obedient; it was the small ways in which they resisted authority while ultimately complying.  It's that space -- the little pocket of freedom in a larger setting of constraint -- that's fascinating me.

The popular narrative about Nazi Germany was that there really were no such pockets; people who resisted or subverted the Nazi machine of oppression were ground up in that machine.

As is true for most such narratives, the real story is much richer and more complicated.  On a walking tour yesterday, we passed the gorgeous Neue Synagoge on Oranierenburgerstrasse.  Here's a photo I shot of its dome.

If you know anything about Kristallnacht, you'll be asking yourself an obvious question:  how could such a structure have survived the wave of synagogue destruction that swept across Germany on November 9/10, 1938?  

That's the question I asked our guide.  He explained that while the synagogue did suffer some minor damage in the Kristallnacht pogrom, it was mostly spared because of the intervention of one Wilhelm Krützfeld, the local police chief, who got wind of the fact that SA thugs were in the structure preparing to ransack it and light it afire and rushed to the site brandishing a document proving that it was a protected historical structure and a gun to back up the document.  The Sturmabteilung troops grudgingly went on their way, and the synagogue was spared.  He was verbally reprimanded.  That was it.  No sacking, no time in Dachau.

Does this prove that resisting Nazi authority carried no risk?  Certainly not.  But it does undermine the master narrative that resistance to Nazi authority was tantamount to a death sentence.  And it illustrates the thing I started with in this post:  a small pocket of relative freedom in a regime of obedience.

As you can probably imagine, seeing such a sight with our own eyes gives us FASPE participants a remarkable context in which to consider the extent to which lawyers do (or ought to) retain freedom to introduce their own moral voice into their relationships with, and service to, their clients.  It's not really that the Nazi history functions as anything like an analogy to the lawyer-client relationship; we are not lining up clients with Hitler and ourselves with Eichmann.  Rather, we are using Nazi oppression as a backdrop against which certain issues in the lawyer-client relationship can emerge more clearly (and in which the stakes of a lawyer-as-client's-unquestioning-goal-seeker model can become more apparent) .

In one of today's sessions, I led a discussion of the roles that some government lawyers played in defending the removal and incarceration of Japanese Americans.  This was our first opportunity to consider the ethical obligations of government, rather than private, lawyers.  I felt like I got things off to a bit of a slow start and didn't focus the discussion particularly well, but the students are just great, and they picked a couple of great threads out of what I presented and developed an interesting discussion.  I did feel quite pleased by the latter portion of our discussion, in which I shifted attention away from its usual venue in these discussions (the roles of the top-ranking Justice and War Department lawyers) and asked the students to consider the deeply ambiguous roles played by the War Relocation Authority's Project Attorneys -- the lawyers at each camp who simultaneously advised the camp's administrators on how to run the camps (read: maintain social control) and provided legal services to the internees themselves.  One one view, these lawyers were nothing but collaborators and facilitators of a mass civil liberties disaster; on another view, they were lawyers operating in (and even sometimes creating) pockets of freedom in a system of obedience, tempering the harshness of the program.  In my own mind, I bounce back and forth between these two characterizations of this group of government lawyers; I suppose the FASPE students did too, but they offered some articulations of the two visions that struck me as fresh and useful.

Late this afternoon the group spent time at the relatively new Memorial to the Murdered Jews of Europe and Information Centre just around the corner from the Brandenburg Gate.

I found the above-ground memorial -- what you see in the above picture (though it's a lot bigger than what you see there) -- to be intellectually appealing but emotionally quite empty.  Something close to the reverse was true of the (intentionally) small below-ground museum.  It might be the most powerful museum I've ever visited.  Its approach is decidedly personal:  it offers a factual timeline of key developments in Nazi oppression of the Jews, but after you pass the timeline the exhibit's central labor is to make the human suffering of individuals and familes as near to real as it can.  I found it nearly overwhelming; in fact, I did grow so overwhelmed in a darkened room with illuminated floor tiles presenting the texts of final postcards and letters of Holocaust victims that I had to move away from the material to collect myself.

31 July 1942

Dear Father! I am saying goodbye to you before I die.  We would so love to live, but they won't let us and we will die.  I am so scared of this death, because the small children are thrown alive into the pit.  Goodbye forever.  I kiss you tenderly.

Your J.

(Postscript by twelve-year-old Judith Wischnjatksaja to a letter written by her mother, Slata, to the father.  It was found by a Soviet soldier in Byten, near Baranowicze, in eastern Poland (today Belarus).  In Byten, German units shot over 1,900 Jews.)

Comments

[Patrick S. O'Donnell]

I recommend David Luban’s excellent discussion of Milgram’s experiments in chapter 7, “The ethics of wrongful obedience,” in his Legal Ethics and Human Dignity (2007): 237-266. Among the points made by Luban:

“The Milgram experiments demonstrate not only that in the right circumstances we are quite prone to destructive obedience, but also that we don’t believe this about ourselves, or about our neighbors—nor do we condone it.”

“...[T]he odds are almost two to one that we are fooling ourselves to think we would never engage in [destructive obedience].”

In the abstract, most of us think the “no-harm” principle should trump the “performance principle” when the two come in conflict. “But the Milgram experiments seem to show that what we think in the abstract is dead wrong. Two out of three people you pass in the street would electrocute you if a laboratory technician ordered them to.” (Recall that a third of the subjects did not comply.)

Luban invokes, persuasively I think, cognitive dissonance theory (motivated in part by the subjects’ ‘susceptibility to the urge to excessive self-regard’) to explain the “slippery slope”-like process of “corruption of judgment” that took place in the Milgram experiments. He draws a parallel here to Hannah Arendt’s Eichmann in Jerusalem (1963 ed.), calling it the “most famous philosophical study of wrongful obedience in our time,” as it explores the “idea that obedience to evil may result from corrupted judgment rather than evil values or sadism,” for Eichmann, “on Arendt’s account, was neither a monster nor an ideologue, neither an antisemite nor a sadist. He was a careerist—an organization man through and through, who could never understand why doing a responsible job well might be regarded as a crime against humanity.”

In short, “the point for both Arendt and Milgram is that if an ordinary person’s moral judgment can be corrupted to the point of failure even about something as momentous as mass murder—or shocking an innocent experimental volunteer to death!—it is entirely plausible to think that the same organizational and psychological forces can corrupt our judgments in lesser situations. The extreme situations illuminate their ordinary counterparts even if , in the most obvious ways, they are utterly unlike them.”

Luban’s conclusion is both sober and hopeful:

“Our moral compass seems tremendously susceptible to the responses of the people around us. That fact creates the problem of wrongful obedience, but it also implies that noncompliers can influence their compliant fellows. The social psychologist Serge Moscovici has argued for many years that even a small number of virtuous noncompliers can sometimes exert enough influence to break the corrupting spell of situations. Human nature seems malleable more than overtly wicked—and that means susceptibility can be toward the good as well as the bad. The thought that a small number of righteous dissenters can sometimes sway the judgment of a larger majority is a profoundly hopeful one.” [Perhaps needless to say, this has been demonstrated again and again in the 20th and 21st centuries in campaigns of nonviolent—civil—resistance.]

[Cheap Supra Shoes]

Let‘s cross the bridge when we come to it.