The “Law and Order” above refers not just to the generic phrase, but also to the long-running, popular television show by that name – the original format, called simply Law and Order, not the spinoffs called Law and Order: Criminal Intent or Law and Order: Special Victims Unit.  The original format series typically had a philosophically interesting plot mechanism regarding the relationship between morality and the law, in that in many of the episodes the prosecution uses contrived or esoteric legal loopholes or technicalities to achieve a moral outcome.  Legal loopholes are used to serve justice rather than to thwart it. 

Normally in the American criminal justice system it is the defense that uses legalisms to avoid morally deserved convictions and penalties -- to avoid moral justice -- and that also frequently happens on the show – pretty much every episode where the perpetrator is caught immediately with convincing and totally incriminating, foolproof evidence, that evidence (and all the ensuing evidence garnered after it) gets tossed out of court on a technicality, such as the police not giving the Miranda warning in Spanish to a man of Hispanic origin even though he speaks English fluently.  While, of course, we do not want for America to be a police state, where innocent people’s legitimate rights are trampled and where false confessions are coerced and beaten out of people, we also do not want to have those who we know committed violent acts against innocent people unable to be prosecuted and convicted because of some minor mistake in collecting or presenting evidence.

What makes Law and Order interesting and perhaps unique, is that in almost every episode the prosecution uses legalisms and legal technicalities to try to bring about moral justice – to try to make the legal outcome actually be what is morally right.  The first half hour of the show each week pretty much shows the heinousness of the crime and the callousness of the criminal who committed it, so there is a predisposition, absent future evidence to the contrary (which sometimes happens on the show), for the viewer to want the perpetrator brought to justice.  If a technicality then throws out the most compelling evidence, some of the rest of the show is devoted to the moral argument that the defendant should be tried and convicted of something else related to his actions (even if that relationship is itself something of a technicality), if a conviction cannot be obtained for the most straightforward offense.  So if the straightforward prosecution of the crime is doomed to fail because of some defense technicality or formal evidentiary problem, another law is found with a suitable penalty for infringement, and the argument is given that the perpetrator broke that law, even though that is something of a stretch.

Moreover, on many of the episodes of the program, the prosecutor's summation to the jury is shown, and it is typically a moral argument trying to show that the defendant deserves punishment and therefore deserves to be convicted (even if, as in some cases, the defense is perhaps correct that from a strictly cold logical point of view, the legal case may be somewhat shaky).

Another way the show tries to make the law conform with morality is that in a number of the episodes, while investigating a crime, it is discovered that someone else, often a large company, contributed significantly to the crime’s being able to be committed by some action of theirs which is perfectly legal, under the most straightforward view of the act.  It will be obviously a morally negligent or morally reprehensible act under the circumstances, but the law will not reflect that because the company’s use of the law for the particular purpose was not anticipated when the law was devised.  The company will have essentially found a legal loophole to allow them to do what is clearly morally wrong or to act in a way which is at best morally negligent.  In these cases the prosecutor then will typically find an interpretation of the company's action that allows him to bring a case under the violation of another law.  Typically he will claim the company management acted with depraved indifference to human life by their action.  On the show this is prosecutable and has serious consequences for conviction, or even for public exposure in some cases.

The show each week is an attempt, as I see it, to make the criminal justice system conform to moral justice or to try to show that it does, or that it can, conform to our sense of moral justice. (And by moral justice, I do not mean compliance with religious rules – religion and morality are different things, though sometimes they coincide with having the same principles. For a fuller treatment of this contention, go to  www.garlikov.com/philosophy/Simplistic.html.) However, one of the twists on this, employed in perhaps 15-25% of the episodes, is that there will be legitimate, interesting, and equally persuasive disagreements among the prosecutors about what is morally right.  Sometimes the other prosecutors, not just the defense attorneys, believe the main prosecuting attorney (Ben Stone or Jack McCoy) is overzealous or self-righteous in a particular case, and is taking undue advantage of the power of his office or abusing his position of trust.   The argument against pursuing prosecution takes two forms generally: either (1) that the suspect did not do anything morally wrong in the first place (as in some sort of mercy killing by a grieving, compassionate, loving family member of someone who wanted to avoid any further suffering from an agonizing illness, etc.) or (2) that the exercise of prosecutorial power is a worse moral injustice than allowing the suspect to go free, either because it sets a dangerous precedent that will be used in misguided cases or because it seems somehow unfair and heavy handed even in this case.

What I find interesting about all this, which is, of course, my own interpretation or analysis of a frequently occurring pattern in the series whether the writers or producers of the series intend to do this or not, is that this show tries to diminish or erase the moral and rational limitations of a formal system.  Formal systems are those which have outcomes according to strict rules and rule-governed procedures.  It is the proper adherance to the procedure and the integrity of the process, rather than the reasonableness of the particular outcome, that supposedly gives merit to that outcome. If the rules require some particular outcome, no matter how egregious that outcome might seem outside of those rules, then the outcome is the "correct" one.  The problem with formal systems is that they sometimes give results that are obviously irrational and wrong, but without a way to remedy the problem.  Sports, for example, is a formal system, and prior to instant replay (and often even with instant replay) there was no way to override flagrant and egregious officiating errors even when they clearly adversely affected the outcome of the game.  (Even when instant replay is allowed, it often has to follow rules that do not allow the correct outcome – the coach has to challenge a play, for example, and if he does not, a bad call can stand; or a team may only get two challenges during a half time, so egregious calls after that cannot be corrected.)

So in a formal justice system, obvious and egregious miscarriages of moral justice can and do occur.  On Law and Order, the prosecutor (Stone or McCoy) tries to work around the occurrence of that either by finding other offenses with suitable punishments with which to charge the perpetrator or defendant, or by saying that evidence is being gathered for a different purpose under a different view of the crime, so that it can be included in a way that its more straightforward purpose is not.  For example, if a wife’s testimony cannot be used against her husband, it will be sought as leverage to be used against the husband’s suspected partner to make him testify against the husband.  The evidence may be too weak to convict the partner, but may be strong enough to coerce him to provide evidence in order to avoid prosecution.

What I find interesting about this is that it is a convoluted way to achieve a moral justice system, rather than letting our justice system be merely a formal legal one.  Most people perhaps believe that the law generally provides moral justice, or that it should.  But that does not always happen.  Obvious criminals’ being acquitted on technicalities are some of the most blatant examples of the failure of a formal system, but there are many cases where wrong acts are not illegal (sometimes because technology has permitted a possible activity no one ever thought to outlaw because no one ever thought it might occur – as in a bombardment of automated telemarketing calls that disturb the sanctity of your home or business), or where perfectly innocent and reasonable acts are illegal.  As I write this, last night on the news, for example, it was reported that an A/B honors student from a local high school was suspended for two or three weeks for having Ibuprofen at school.  She and her mother did not know that was an offense treated in the same way as hiding illegal drugs or a knife on your person at school.  According to policy, the “drug” was supposed to have been given to the school nurse, or some such, for distribution as needed or prescribed.  And with a “zero tolerance” policy in effect, the child was suspended.  That hardly squares with moral justice, even though it conforms to law.  Similarly, there are numerous petty traffic offenses that have serious consequences for being cited, even though they do not present any kind of driving hazard or anti-social behavior, as in driving over white stripes left in a busy and useful right turn lane after a parking lot entrance has been sealed for which the stripes were supposedly originally needed.  There are even some cases where obeying traffic laws puts people at serious risk -- such as where speed limits are set too low for driving conditions and the safe, prevailing speed is so much higher that drivers who drive the speed limit then can serve as a hazard.  Or consider NCAA sanctions whereby current athletes and attending students are punished for the transgressions of a former coach or past players, while those who committed the infractions are not punished at all if they are no longer at the school where the infraction occurred.  Moreover legislatures are fairly frequently suspected (often with good reason) of passing bad laws in order to secure political or funding advantages for their members.
 

 There are numerous instances of the law’s not necessarily conforming to what seems to be morally right.  And although the conventional claim is that laws ought to be obeyed until they are changed, there are many instances where it is arguably morally preferable to break a bad law than to obey it till it is changed.  Cases of civil disobedience tend to highlight many of the worst of such laws, when they affect large numbers of people.  When penalties are mild or few people affected by bad laws, they can remain on the books for decades.

It is my view that courts and the law would be more interesting and useful and society better protected if the criminal justice system were not a formal system.  And the argument that would be the main one against my view is, I think, shown to be a moot argument by the kinds of prosecutorial conduct on Law and Order, as well as by police and prosecutorial conduct in real life.  What I mean by not having the criminal justice system be a formal system is that any act which can be reasonably demonstrated to be both wrong and committed by someone who should have known better, should be able to be sued or prosecuted, the safeguards being that an indictment must be secured in a reasonable way from reasonable and disinterested people and then the case tried before a judge and/or jury.  Any reasonable evidence obtained and introduced in any reasonable way should be permitted.  A pre-trial hearing of some sort either with a judge or a jury panel should be able to decide which evidence is reasonably obtained and could reasonably be introduced.

Before describing this idea further and arguing for it, let me give a slightly different example of it. In many high schools across the country, there are student handbooks that have rules for students.  Students invariably seek loopholes in the rules in order to do something they know will anger the school officials but which will not be punishable because it is not expressly forbidden.  Typically that act is then added by school officials to the ensuing year’s handbook, so that each year the list of forbidden acts grows substantially larger, often becoming unwieldy.  However, students are typically creative enough that they can figure out behaviors no administrator would have thought to specifically forbid.  My remedy for this is to have but one rule: if a student intentionally does something wrong that s/he ought to know is wrong, s/he will be punished in proportion to the behavior unless there is a truthful, plausible, and legitimate excuse or mitigating circumstances.  That takes away the incentive to find loopholes in formal rules because there are no formal rules, no formal system, and therefore no loopholes.  Loopholes are products of legalism or the “letter of the law”, not the spirit of laws.  By having a law that is only about the spirit of doing right instead of wrong, the loophole problem is avoided.  On the opposite side, such a policy will also prevent mistakes like the suspension of the girl with the Ibuprofen, since she will not have broken a rule that should not have existed in the first place in the form it had.  In other words, people will not be prosecuted for acts which are illegal but yet moral; and they will not avoid prosecution or punishment by committing wrong acts which are legal.  There would be no distinction or difference between what is legal and what is right or moral.  And there would be no difference between what is wrong and what is illegal.

The immediate apparent problems with my suggested approach are three-fold:  (1) one could be charged with anything at any time without having any way of knowing what prosecutors or police consider wrong, or without knowing what is wrong (2) some moral wrongs might not be something a person would have thought about, so even if s/he should have known better in some sense, the fact s/he didn’t seems to mitigate against his/her culpability, though under the system I propose, it would not, and (3) self-righteous or (religiously) zealous prosecutors or police might have a whole raft of behaviors they consider wrong that a portion of the population holds to be perfectly acceptable, making them essentially legislators as well as law enforcement officers.

There are answers to each of these issues.  The law itself is complex. Knowledge of what is legal or illegal is at least as difficult, if not far more difficult than knowledge of what is morally right and wrong.  Tax law in particular is often very complex. Yet we are all expected to comply with the law.  Legal experts are hired.  Sometimes they disagree.  Sometimes government disagrees and prosecutes people for behavior legal experts have said was not illegal.  Most people are in the unfortunate position with regard to attorneys and accountants that satirist Dave Barry pointed out when he said he had to hope that whenever his accountant prepared his income tax return, that the accountant would not be in a prankish mood.  Dave is responsible for the results on his tax forms but, like most of us, has no understanding of what he is signing.  Many of us are in the same boat with regard to legal advice from lawyers; we cannot distinguish what is sound from what is unsound.  Often we cannot even understand the legal terms used in a legal document; we only know what the document is supposed to mean or what our attorneys tell us it means.

There is no reason we couldn't have moral experts and advisers.  If we had to replace legal experts with moral experts, at least much of the advice ought to make sense.  There ought to be a better chance of the average person’s understanding and being able to rationally agree or disagree with the contentions and advice of  moral experts than there is of his/her doing that with a legal expert.  Since laws, and particularly tax laws, do not necessarily make any sense, there is no good way for a client to be able to disagree with an attorney simply because some law or behavior does not sound right or kosher.  In the moral theater, however, advice has to make sense.  People have a better chance of doing what is right or at least excusable if they have good reasons they themselves understand for what they are doing.  Any case brought to court would have to turn on a suitable argument for whether the defendant should have known or should not have known his behavior was wrong.  As it stands in our current system, one is always required to know the law, even if that requirement is unreasonable.  I think it is better to punish people only for behaviors for which a reasonable case can be made that they should have known better -- should have known not to do a wrong act or to neglect doing a right or obligatory act.

In regard to the fear that one could be charged out of the blue with violating a moral law peculiar to some individual or small group, the actions of the prosecuting attorney on Law and Order show that to be a possibility already under our current formal system of justice.  Insofar as a conscientious or zealous prosecutor can interpret or manipulate the law to suit his personal moral sensibilities, having laws is not a safeguard.  We may as well dispense with the legal part and just find ways to deal directly with differing moral beliefs.  At least then we could claim a prosecutor is not being fair or reasonable rather than having to contend he is not following the letter of a constitutional law, which itself may be unfair even if constitutional.  Insofar as Law and Order demonstrates that police and prosecutors can make law conform to moral justice through creative contrivances, there is no difference between having the current legal system and having a system of moral justice based on principle and reason rather than law and formal rules of evidence.  And insofar as the formal, legal criminal justice system fails to conform to moral justice, it is a damning indictment of the legal system.  So either the legal system is burdensomely and cumbersomely superfluous or it makes moral errors, sometimes unconscionable ones.

Also, under my system, police and prosecutors would not essentially be legislators because the "legislation" would be what morality and reason dictate, not what law enforcement necessarily prosecutes.  Since only what is wrong is prosecutable and punishable, not just what someone thinks is wrong, irrational prosecutions would not be tolerable.  And the fact they might be tolerated in some jurisdictions is the same problem we have now anyway with regard to officials who abuse their powers in office and are allowed by their jurisdictions to get away with that.

One way to prevent malicious prosecutions and frivolous suits is simply to include them as wrongs which can themselves be prosecuted.  They are indeed such wrongs, I believe, and should be subject to justice in the same manner as any other wrongful act.  That is not to say, of course, every trial decided in favor of the defendant is a malicious prosecution or a frivolous suit.  The standard for maliciousness and frivolity would be higher than simply losing a case, just as it is now.  The only difference is that it would be a rational standard rather than a formal one.

There is much subjectivity and discretion now involved in issuing citations, indictments, arrest warrants anyway.  That subjectivity and discretion are merely camouflaged, not prevented or eliminated, by surrounding them with formal procedures and policies.

The popularity of the program Law and Order is, I think, in large measure because it tries to make the investigation of crimes, the arrest of suspects, and their ensuing prosecution, conviction, and punishment conform to our moral sense of right and wrong.  It seems to me that the whole legal procedure would be easier and more conforming to moral justice if cases were argued on the moral issues and evidence in the first place, rather than having a set of laws and rules that one tries to make give the morally correct result.  Law only works insofar as it is perceived to be fair and reasonable in the first place.  We should not let bad laws, bad rules, and bad results be justified because the good laws and rules often yield good results and thus lend an undeserved respect to the system as a whole.  It would, I argue, be much better for opposing attorneys or advocates to be able to give whatever rational moral arguments they wish for any case or issue, rather than their having to argue on the basis of formal laws and rules that may or may not conform to our sense of moral justice in particular instances in the first place.

Safeguards, of course, would need to be in place to prevent “Turkish prisons” and overzealous or abusive police and prosecutors, but I believe that can be done, and, as with any other crime or wrong, I believe it can be done better and more easily in a moral justice system based on principle and reason than in a formal legal one based on rules and laws passed by majorities who may not be sensitive to the needs of some or who might  have conditions in mind possibly quite different from what might occur in particular cases.  Many laws are too wide or too narrow, or just simply misguided.  A system based on reason and principle would help to prevent miscarriages of justice based on legalism in a formal system.