Today you hear allot of people talking about loophole abuse and ways to meet the letter of a law without the spirit of it.
In truth as I understand it that isn't always the case, and common law already has a good degree of concepts that are designed to avoid blatant exploiting of loophole or adherence to letter of the law beyond reason or fairness. For instance a contract that was patently unfair to one side,which is signed under duress, or is designed to prevent someone from understanding what they were agreeing to will often be nullified by the courts as clearly not keeping with the spirit of a fair agreement (through various different common law concepts).
However, I'm wondering about a world that took this a step further, where their culture and society puts a heavy emphasis on spirit of agreement and does not approve of loophole abuse in any format; and the legal system is built around this cultural belief. I want to create a legal system that prioritizes the spirit of the law in addition to the explicit letter of the law wherever possible, while still being a viable and fair system.
To give an example, and I'm not necessarily committed to this example...
Imagine a situation where laws had two parts, a spelling out of the actual law and rules as exist now, and a second step describing spirit and intent of the rule, why it was written and what it is desired to do and not do. At a later date in addition to traditional legal augments and appeal process there is a separate way to argue that someone is in violation of the letter of the law, but not the spirit. An appeal may propagate up through the court in much the same way we have now to argue rather the laws spirit is violated by finding someone guilty.
Similarly, someone may have some way to draw the courts attention to loophole abuse where someone is not in violation of the technical law, but in violation of the spirit of the law. This can lead to a court case and prosecution as well. Presumably punishments for violating the spirit of a law would be less severe then the letter of the law, and be based partially off of the severity of the violation of the spirit.
In cases where an entity is not certain rather a decision is violation of spirit of the law will have a way to petition the court for a decision prior to acting in given manner. Those that petition the court and don't get a ruling are generally treated very favorably if their later seen as violating spirit on the presumption that they were acting in good faith.
Any ruling on spirit of a law will become a precedent that affect future laws as with current rulings.
In effect this is not too far away from common law now, particularly common law as it applies to personal individuals interaction (contracts between individuals and the like). However, I'm looking at simply expanding the idea by including more detail on spirit and intent of the law when a law is written. I also want to expand it further into areas where statutory law is more common in modern legal systems.
To give an example, say you have a law that says that sex with a minor is punishable by some penalty; I think we all mostly agree with this. In my system part of the law would explain the intent, the emotional harm of adults forcing children, how children feel the need to listen to adults make them easily susceptible, and how children may not understand sex and sexuality enough to make an informed decision etc etc.
Later two individuals, both minors of approximately the same age, choose to have sex without being compelled and are caught. Both minors have had sex with a minor, which means both have violated the letter of the law. However, the spirit of the law was written in such a way to make it clear that the intent was to protect minors from being compelled by adults, which did not happen. A ruling may find them technically in violation of the law, but not in violation of the spirit since the harm the law was trying to avoid does not apply here. This becomes a precedent which applies to other minors of similar age in the future. Later you may have situations such as a 17 year 11 month old man having sex with a 18 year 0 month old women and find it technically violating the law, since one is under 18, but argue the spirit does not apply. Further ruling on more complex situations will help to cover any similar ambiguities over time.
My question is how could a system like this be developed such that it works. Which is to say that the spirit of law is considered, but we don't bog down society with a million people all claiming their case fits the spirit of the law. Or, the harder to imagine, how to reliable handle situations where someone abides by the letter of the law and later is found guilty of the spirit without creating a situation that is unfair or leaves people afraid of always being found guilty of a spirit violation while acting in good faith.
Can society move much further towards a legal system with spirit of the law as a key tenant that is still consistent and fair, or is the concept of 'spirit' too ambiguous and thus too prone to someone finding out they violated a law without knowing it? Are there legal rules we could set to help address situations where one is found guilty of spirit of a law that will still be fair to them?
In addition if a society very culture was built along spirit of a law how will it handle appeals. Finding someone guilty of a law and later setting them free on appeal due to finding that finding them guilty is not within the spirit of the law seems viable, but that would imply the person being in jail until the appeal goes through; and a culture that had spirit of a law ingrained into it may be offended that someone would have to spend time in jail while we 'proved' they were acting in keeping with the spirit of a law. Can a more responsive system be developed, that considers spirit of the law from the begging, exist without leading to an overwhelmed court where everyone argues they are in keeping with spirit?
While I welcome arguments that this simply can't be done I am looking for ways to make it happen. I'm open to a system that still is close to ours with strict rules, and with only certain avenues for handling spirit of a law ruling, if that is the only approach that seems viable; but I appreciate a best attempt at suggesting how legal system could be developed to consider spirit in any manner while still being viable for large first world country governance.
Edit: to clarify I do not need an all or nothing approach. I'm okay with objective laws without 'spirit' clauses existing in some cases, and suspect they must. My question is how can a realistic society focus more on spirit of the law then current systems; that does not require throwing out all objective rulings or making everything based purely off of legal intent. It may be the only viable system is only a minor tweak from our current system, and that is a sufficient answer.