Here is one definition:
The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. ...The current USA citizenship exam asks What is the "rule of law"? Our elected officials have to take an oath of office promising to obey the rule of law.
Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal. This principle is reflected by the prohibition against Ex Post Facto Laws in the U.S. Constitution.
For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law.
The rule of law requires that citizens can only be punished for offenses that are codified in writing somewhere. The family court is a modern exception.
I have been punished by having my kids taken away from me, and ordered to pay non-guideline child support. No one even claims that I have violated any written rule, or that I am an unfit parent, or anything like that. The core problem is that the family court does not respect the rule of law.
I should not have to explain why rule of law is superior to the rule of Muammar Gaddafi or King George III. It has been obvious for thousands of years. Someday everyone will agree that the family court is barbaric.
11 comments:
actually, rule of law has always been pretty flimsy in this country. Go back to your history books. Or just read the newspapers/news sites on the web.
The "rule of law" applies to criminal law in the US. All criminal laws must be documented, communicated, and the punishment must be written as well. Other areas of law, like family law, still follow common law rules. The reason is that family law is not as cut-and-dry as criminal law, or others that are governed by statutes.
how convenient.
Rule of law was always meant to include civil law as well as criminal law. For example, we just have to pay taxes according to the schedules that are published and apply to everyone, and not at the whim of a king.
Common law is not an exception to rule of law. Common law means that things like contracts are interpreted according to published precedents that go back centuries. It does not give judges the power to arbitrarily deny the rights of citizens.
I think the common law principle in question is called "parens patriae". After taking a look at that in Wikipedia it seems to me you could drive a truck through the leeway given, or at least as interpreted and enacted, by the family law system. Is BIOTCh an actual legal construct/common law or is it just some so-called guiding principle coined by lawyers, politicians, shrinks and "advocates". The other dangerous concept, or movement, I've seen is the "Child's Rights Movement". Take a look at some of what they're preaching. While I'm definitely against child slavery, labor (unless they're cleaning their room ;-). etc, theres some scary stuff advocated in there.
I am just making the simple argument that govt action should be based on written rules. Having a written policy that the king can do whatever he pleases is not rule of law. Neither is a statute or common law principle that says that a judge can do whatever she thinks is in the BIOTCh. That's all I am saying.
If, for example, our society wants matters like spanking, homework, vegetables, yelling, etc, to be actionable in the family court, then there should be written rules that say so. There are some standards for juvenile dependency court. They are pathetic, but family court is much worse.
George, I'm in agreement with you, I'm just trying to both understand as well as highlight what I think the so-called guiding principles are for these fools to make their judgments. Or should I say excuses for coming to their conclusions? It is indeed the Wild West in family law and too much leeway is given to the arbiters of these awful situations. It is human nature to seize as much power as possible with as few controls as possible. Again, history supports that hypothesis more than amply, including this country. At the end of the day, lawyers will not relinquish power as they get to write the rules. And interpret them. There is no real recourse using "The System" that I can see. And it is beyond naive to think otherwise. IMHO, of course....
We lecture countries like Libya for not having Rule of Law. And Muammar Gaddafi does not want to relinquish power voluntarily. We need a public consensus that the family court incompatible with a civilized society.
For the government to make laws telling us how to parent would be worse. It would be a nightmare, and it would differ between families anyhow.
I don't want laws telling us how to parent. I just want laws defining what is actionable in family court.
A California legislator tried to ban spanking a couple of years ago. The ban did not pass. I do not agree with a spanking ban, but at least it would be rule of law. It is contrary to rule of law when some family court judge applies her own opinion of spanking to a case.
well, we have government workers, ie judges, court appt'd counselors, social workers, etc already doing that de facto. I'm not saying that should be the case, it shouldn't, but there has to be a better way to arbitrate the dissenting parties issues surrounding parenting, I think we all agree on that. Somehow a simple: when kids at parent A's house, follow those rules; parent B's, those rules. End of story. And 50/50 custody as default. It's tough for the kid, but I see the parents' judgement by and large better than anything I've seen out of the child psych and social work lit. Then you have to restrain over-reaching judges/lawyers..... Big problem, and we all have to try to come up w/some sort of way to agree on some basics and take the process away from The System.
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