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Hogarth judge

December 2016

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Hogarth judge

The "law" of domestic relations

This is a great sham and a scam. You have elaborate statutory codes and apparent rules to follow, but following that, there's an exception that invites you to ignore all of that carefully indented and constructed text.

Inviting judges to make a decision on what "the best interest of the child" requires is the exact opposite of the rule of law. You tell me how to argue that standard. Tell me what evidence it makes irrelevant, and how you order your facts and construct your train of logic. It just doesn't work that way.

You could approach it instead from Oliver Wendell Holmes, Jr.'s view: law is an educated guess as to what courts will do. This is even less flattering. Here, it is possible to make predictions of how the courts will rule. Those predictions would be loathsome tyranny, obvious sexism, and baldly unconstitutional if anyone were to dare to set them down in plain English. Women get the children and decide where they live; to wrest this privilege from her requires proof of flagrant unfitness. Her demands for money from the poor sod unlucky enough to be the actual biological father are so important they justify medieval debt collection practices; his wish for time with his child is far less consequential, and a waste of time serving mostly to flatter his vanity.

The elaborate neutrality of the statute book is simply for show. The actual rules can't be stated openly, though they are applied relatively consistenly by general consensus. To set them down into English would be to expose the entire structure as a façade. No matter how elaborate the rules are, they end in an exception that renders the previous text so much waste paper.

Comments

I couldn't agree more. It's a great racket for lawyers.

And yet, we hear of stories where the law demanded what seemed an obviously bad choice and tragedy ensued. Often judgment is superior to rule of law, and this is why we must be careful when choosing judges (or Presidents) for we entrust them with grave power.