Organizational evil
It seems entirely possible that the torture lawyers, sealed up in the echo chambers of the Justice Department and the Pentagon, never visualized the Abu Ghraib photos. For that matter, junior lawyers in the Office of Legal Counsel, told to research particular points of law or draft small bits of the argument in the torture memos, may not have grasped the significance of the entire enterprise.
Or they may simply have shut their eyes to it. These possibilities raise the next major theme treated in this book - a theme that has preoccupied me for many years. This is the subject of organizational evil: the ways in which organizations - be they law firms, corporations, bureaucracies, or armies - can subdivide moral responsibility out of existence by parceling out tasks and knowledge so that no individual employee owns the action. Organizational evil does not require crooks and thugs. It can be done, as C. S. Lewis says, by “quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voice.”9 Hannah Arendt once wrote that where ancient political thought distinguished rule by the one, the few, and the many, modern bureaucracies are “rule by nobody.” She added that in rule by nobody, responsibility vanishes, and the outcome can be tyranny without an identifiable tyrant.10 Obviously, Arendt had in mind the “writing-desk perpetrators” of totalitarian regimes, but the moral problem posed by divided responsibility and fragmented knowledge doesn’t require lurid or atrocious examples.11As I now conceptualize it, the problem of divided responsibility actually encompasses at least three distinct moral issues: the responsibility of supervisors who contrive to maintain their own ignorance of what their subordinates are doing; the responsibility of subordinates ordered to do wrong; and the more general problem of complicity, the subtle ways in which
dignity.
David Luban, Liberalism, Torture, and the Ticking Bomb, in The Torture Debate in America 35 (Karen J. Greenberg ed., 2005) - an expanded version of an essay published first in91 Virginia L. Rev. 1425 (2005), and excerpted in Harper’s Magazine, March 2006, at 11-16.9 C. S. Lewis, The Screwtape Letters and Screwtape Proposes a Toast, at x (Collier, 1962).
10 Hannah Arendt, On Violence 81 (1970).
11 See Luban, Making Sense of Moral Meltdowns, which appears in slightly different versions in Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader 355 (Susan D. Carle ed., 2005), and Moral Leadership: The Theory and Practice of Power, Judgment, and Policy 57 (Deborah L. Rhode ed., Stanford University Press 2006). The latter version focuses on business executives, the former on lawyers. I first addressed the problem of divided responsibility in an essay written at the fortieth anniversary of the Nuremberg trials, and then at greater length in a paper co-authored with Alan Strudler and David Wasserman. Luban, The Legacies of Nuremberg, 54 Soc. Res. 779 (1987), reprinted in my book Legal Modernism (1994); Luban, Strudler, and Wasserman, Moral Responsibility in the Age of Bureaucracy, 90 Mich. L. Rev. 2348 (1992).
organizational members aid and abet each other in wrongdoing, sometimes simply by providing mutual moral support or encouraging group-think. Chapters 6 and 7 (“Contrived Ignorance” and “The Ethics of Wrongful Obedience”) examine the first two of these problems, while chapter 8 considers one aspect of the problem of complicity: the way in which we unconsciously align our own moral compass with the prevailing direction of the people around us, who are watching us and doing exactly the same thing.12 All three chapters address problems that range far wider than legal ethics, but the examples I use to focus discussion are drawn from law-firm practice, and chapter 8 was originally written for a post-Enron conference on integrity in corporate law and business.
A bit perversely, I argue that the quest for integrity might be the problem, not the solution, because - as numerous social psychology experiments suggest - we often harmonize our practices and principles by gerrymandering the principles to rationalize the practices.At this point, of course, the topic has strayed very far from the modest, constructive contributions to the rule of law of the Cyril Grosses of the world. Significantly, Gross was a solo practitioner, not a stressed-out senior associate in a thousand-lawyer law firm or the general counsel of an aggressive Enron-like corporation whose officers think that laws are just red tape and deadweight. Demographers of the legal profession note that the trend over time has been for firms to get larger, for a higher proportion of lawyers to work in large firms, and for young lawyers to work in large organizations in even higher proportions.[9] [10] While sole practitioners like Gross still compose a third of the profession, their number is diminishing and so is their proportion of total lawyer income. I don’t mean to romanticize solo practitioners, who are not all the salt of the earth; and Fuller’s praise of lawyers as architects of social structure obviously applies to lawyers in large organizations, perhaps far more than to solo practitioners. Nevertheless, the movement of the legal profession to large and increasingly bureaucratized organizations means that the pathologies of organizational morality become increasingly important. The dark themes of chapters 5 through 8 must counterbalance the rosier picture of the legal profession I paint in chapters 2 through 4.