Wednesday, November 02, 2011

Rule of law

I mentioned yesterday that a legal blog was debating how the so-called legal standard of BIOTCh could apply to fast food for kids. This discussion inevitably draws questions like this:
But what if the parents can’t reach an agreement, and equal physical custody isn’t feasible? What happens to the child?
If the guy were from some Third World country, I might patiently explain to him how we have Rule Of Law in the USA. That is defined:
The rule of law, sometimes called supremacy of law, is a legal maxim that says (at least) that governmental decisions should be made by applying known principles or laws with minimal discretion in their application. [Black's Law Dictionary]
This is, of course, a great pillar of civilized societies all over the world. It was clearly explained by Aristotle in ancient Greece. But it is routinely violated by the American family court. It does not decide child custody or visitation based on known principles or laws. It is entirely in the discretion of the judge.

I expect people to disagree with me about child-rearing, but it is especially distressing to find lawyers who do not even seem to understand the desirability of rule-of-law being applicable to the family court.

Is it so much to ask that rule of law apply to family court?

BTW, there seems to be some disagreement among lawyers today about the meaning of rule-of-law. The same blog collected these definitions:
“Everyone must follow the law”; “Leaders must obey the law”; “Government must obey the law”; “No one is above the law.”“The rule of law means that judges decide cases ‘without respect of persons,’ that is, without considering the social status, attractiveness, etc. of the parties or their lawyers.”
This is just weird. The term has been understood for 2300 years since Aristotle, so it should not be so confusing.

My biggest complaint about the family court is that it does not follow rule-of-law. My kids have been taken away for reasons that are not written down anywhere. No court should ever be doing such things in a civilized society. That was obvious to Aristotle.

As an example, consider fast food. Some people like it, some don't. Some say it is healthy, some don't. If our society were to collective decide that it is bad, then maybe laws could be passed to ban McDonalds or to require adult ID, like bars. I would not agree with that, but I could learn to live with whatever laws get passed. But our lawmakers have not done that. Therefore, fast food is not the concern of the family court. For a family court judge to consider fast food would be contrary to rule-of-law as that has been understood since Aristotle.

How can anyone not understand that rule-of-law is desirable? If anyone can explain it, please tell me in the comments.


Anonymous said...


Family law court is not a court of law. It's actually forced arbitration. The decisions and orders are not based on the rule of law, they are arbitrary.

What is in the best interest of the child is subjective.

If say, judge Morse decided that it was in the best interest of her own children to force them to take piano lessons, do chores arounfd the house, and be fed a kosher diet, than any parent appearing before her who wasn't doing the same would not be acting in the best interest of the child, right ?

Anonymous said...

See this video of a Texas family law judge beating his own child and demonstrating what is in the best interest of a child.

George said...

Here is the YouTube video and story.