Ethics

 In Monday?s NYT, Stanley Fish had a column on the moral universe of Law and Order (here) .  He argues that Law and Order presents a deep aversion to exceptionalism, to people or categories of people who believe they are above the law, can manipulate the law or otherwise obtain advantages that they do not deserve within the social order represented by legality.  He suggests that the moral tension of the series arises in part from the extent to which Assistant DA Jack McCoy counters the forces of exceptionalism with his own willingness to bend or break the rules:

It might appear, then, that ?Law & Order? doesn?t even like its own main character, but the show is not ?The Sopranos? or ?Mad Men? or ?Damages.? It is quite clear that in his own mind McCoy?s bending of the rules is forced on him by the ever rising tide of corruption and influence; the legal system is always in danger of being overwhelmed; and in order to save it, he reasons, one must violate its principles of fairness, impartiality, and transparency. Often in office exchanges someone ? at times McCoy ? will say in response to a suggested strategy, ?but that will make us no different from them.?

In fact they are in the end no different from them except in a determination to play their roles in a government of laws, not of men. Men (and women) however are always trying to capture the government?s procedures and bend them to their will. That is the bottom line message of the series: the liberal state is committed to a regime of justice that is not a respecter of persons, but persons ? especially persons who have managed to distinguish themselves in some way ? are forever working to undermine it. From episode to episode ?Law & Order? is engaged in a staying action against the forces that threaten its ideals, forces that live and have their being in the walks of life that afford the time and the resources to pursue nefarious, self-serving, agendas.

First, I want to suggest that theories of legal ethics that retain a strong commitment to the authority of law (like Brad?s) are to some extent reflecting the same aversion to exceptionalism that Fish identifies in Law and Order.   The idea of law as worthy of respect because it reflects our social compromises, assumes that social compromises are necessary and worthy of respect.  There is no problem with exceptionalism unless the social compromise warrants precluding exceptions to it. 

 Second, though, the problem of McCoy is the one that I think runs through legal ethics, which is that in a world where there is exceptionalism, and the mechanisms of law risk being overrun by the forces of power, the only effective counter ? the way of retaining what, morally, the law is intended to do - is by avoiding a rigid approach to what the law permits or requires.  McCoy is the hero of the series, not the anti-hero, and what he does is not seen as a fundamental disrespect for legality, even if it involves bending what the law permits.

The question I have, is are these points actually reconcilable?  Can one posit an ethical stance for lawyers which involves anti-exceptionalism, and commitment to the authority of law, with a willingness to bend the law when it seems worth it to maintain the fundamental values of the legal system?  I tend to think that what works for dramatic television, does not work for a theory of ethics, that an ethical theory has to either embrace a weak commitment to the authority of law (e.g., David Luban), which thereby permits some willingness to avoid or evade the law to achieve deeper moral purposes or values, or a strong commitment to the authority of law, which prohibits any avoidance or evasion of the law (Brad, leaving, for the moment, the question of what an avoidance or evasion actually looks like).

Ultimately, I think these points are also interesting because I think tthat one's perspective on how people in the world approach the law - respectfully, exceptionally, or otherwise - will affect how one perceives what lawyers should do.  Law and Order, as analyzed by Fish, is seeing the world in a particular way, but also seeking to duck the consequences of its moral insight: the answer to exceptionalism is legality, not legality except when wielded by the good guys.