No
statutory change or act transformed into a law, whether by a legislative body
or a referendum, could repeal or reform it because the essence of common law
resides in the collective thought and inclinations of judges, who are empowered
to effectively make the law quite unlike magistrates in civil law societies
and, in some areas, can operate effectively unconstrained by popular will or
democratic wishes.
So where does the intellectual basis of judge-created common law come from? The
answer, of course, is largely in law schools and the elite thought of the US
and wider Anglo academia. Future judges in US and other Anglo family courts are
schooled and molded by the elite doctrines of what is taught in law schools,
including the seminars and proliferating academic publications dedicated to
conflict theory, and cultural marxist and 3rd wave feminist theory in
particular, part of their broader takeover of academia in the Anglo world. Thus
these doctrines, regarded as extreme minority opinions and fringe ideologies to
the American and wider Anglo general public are, horrifically, the intellectual
core of the thinking that molds Anglo judges that have all but complete power
over you and your financial survival in a divorce court. Unless you change this
elite academic culture, which is now virtually impossible, you cannot change
the dark heart of American family law and common law in general.
The US Constitution, along with its state and provincial counterparts in the US
and wider Anglo world, is silent or flexibly interpretable enough in key areas
that the common law system has great latitude, and family law is regrettably
one of them. There is thus no popular brake on the common law-based family
court excesses—the change can only occur at the level of elite culture and the
elite training of attorneys and future judges at law schools. Thus the grim
conclusion: since common law-based family law in practice is made by judges,
and also in practice often supersedes statutory law, the victimized broader
Anglo populace is all but powerless to correct the excesses or protect
themselves. This in fact is a valuable lesson for law students and legal
scholars, because it gets at the historical heart of how and why civil law
diverged so sharply from common law: even before democratic government became
the norm,
The forefathers of civil law in the Roman Republic recognized it was dangerous
to empower a permanent and aloof elite, such as judges in courts shaped by
abstract legal and societal theories, with crafting laws beyond popular
scrutiny. Even though the Roman Senate was itself elitist and not much guided
by the broader plebeian population, nevertheless the earliest civil law jurists
understood that judges’ opinions in themselves should not have legal force.
Instead the deliberative bodies of a republic (or a democracy in the Greek
model), which at least had the ear to the ground of popular concerns, should be
the places where law was very carefully crafted. This is why civil law
moderates judges’ effective lawmaking power, and a natural, obvious ethical
proposition of the populace—divorce is bad, it should be discouraged and not
made profitable—translates so easily into family law and real legal decisions
in the civil law world. And this is also why the worsening nightmare of family
courts, and the predatory “business of divorce” in the US and wider Anglo
world, are resistant to popular reform, and have no effective remedy. It would
essentially take a complete collapse and restructuring of societal
institutions, or even a Syria-like civil war that struck universities and higher
educational institutions themselves, to bring about a chance in the elite
bubbles that, in practice, forge Anglo common law and thus family law.
On
this point, I also wanted to make a clarification regarding some confusion my
students have brought up on this topic. Any L1 student starting up at a law
school learns early about the principle of stare decisis, Latin for "let
the decision stand", and thus some of my students have been confused by
the very accurate points you and your contributors have been making even before
my elaboration above. How can judges in the United States, Canada, Britain and
other nations classed as "Anglo" have so much power to make arbitrary
decisions, or incorporate radical Anglo-American feminist theories (which are
indeed thoroughly misandrist by contrast to the rest of the West), when stare
decisis supposedly requires them to follow precedent? Doesn't stare decisis
mean they should follow older and long-established customs, including prior
judges’ rulings, that are less misandrist?
The answer is no, and Mr. Kshatriya and his contributors are indeed right that
judges in divorce courts have rather excessive powers particularly in the
realms of monetary imputation and purview of a spouse's finances, and that
alimony and child support payments can and regularly are harshly assessed. The
answer to this confusion is that the common law since the 20th century has been
quite different to what it was before. Most of you (referring to my law school
students) have, or soon will encounter the treatises of critical 20th-c jurists
such as Frankfurter, Holmes, Brandeis, Dworkin, Fuller, Wechsler and Bickel. In
a gradual process of great significance, these legal scholars (several of them
Supreme Court justices) re-interpreted the very concept of common law, to make
it more flexible and responsive to modern scholarship. Since then, stare
decisis and precedent don't mean what they did in the 18th or 19th centuries.
Although prior case law remains greatly important in guiding future decisions,
the evolution of these scholars' ideas in practice has meant that judges today
have a lot of latitude in setting precedent based on prevailing social
theories. Their ideas became so influential that they've now come to dominate
the concept of common law across the English-speaking world, not just in the
United States.
I don't in any form want to blame these scholars for the latter day corruption
of common law, as they did not have the modern madness of American family
courts in mind, and at least in the medium-term, their thoughts on the common
law did help to make it more responsive to the fluid challenges of contract law
and technological advance.
Unfortunately, once the common law's previous restraints had been cut--
restraints which predate the US Constitution itself, and based on custom
instead of statute-- the dangerous perversions of the Frankfurt-School
(cultural marxism and ideas of "political correctness" on university
campuses) and in particular, the harshly adversarial ideas of 3rd wave feminism
were able to exert themselves through this "new form of common law".
And it has become a horribly destructive force in the family courts of the
English-speaking world. In effect, "precedent" can be almost
arbitrarily set by family court judges on the basis of what are considered to
be "commonly agreed upon principles" in legal elite professional
circles but which, in reality, are often little more than radical feminist
theories (the Anglo-Saxon versions of them) that have been arbitrarily lent
prestige by their appearance in academic journals. Moreover, since so much of
academia in the USA, Canada and Britain (mainland Europe and Latin America have
a different university structure) has indeed been taken over by such 3rd wave
feminist and cultural marxist radicals who are on the payroll as serious
"scholars", result is that common law precedent in Anglo-American
courts, which affects all of us, is in effect being "set by
precedents" derived from the most radical, misandrist theories of these
sorts of feminist academic journals.
This
includes law schools, where "feminist legal interpretations" and
others based in the conflict-theory approaches of the cultural marxists (not to
be confused with traditional economic marxists, who often disagree quite
bitterly with the "cultural" form) powerfully and concretely
influence the pool of "acceptable" legal thought from which judges in
actual courts draw their citations and make their decisions. It is an extremely
undemocratic process that defies popular will and common sense, but this is the
inherent danger with modern common law-- it allows, in effect, law and policy
(which by definition in common law, are set to a large degree by judicial
decisions and opinions) to be set by tiny legal elites with, often, extreme ideological
biases shaped by radical-leaning Anglo feminist journals in universities and
law schools. And in fact, the readers and supporters of such journals are also
the ones most likely to be drawn to family law.
So in practice, US and broadly Anglo-American family courts get the worst of
both of these worlds. The "flexible precedent" approach means that
Anglo family court judges are able to reject traditional standards of fairness
or impartiality in favor of openly misandrist and conflict theory driven lines
of thought as are advanced in legal feminist journals and cultural marxist
literature in general. And yet, the stare decisis tradition of common law, at
least in areas that don't have a vocal ideological elite base pushing a new
series of precedents (such as 3rd wave feminism), means that the worst of the
old precedents do stay in place and don't adapt to the modern world. This
explains the bizarre contradiction of American divorce courts, where women are
considered powerful and independent and men are often presumed in advance to be
deadbeats, yet at same time, women are "helpless and innocent" enough
to be awarded lifetime alimony, outsize levels of child support (that all too
often just support a lavish lifestyle) and where the bizarre standard of "maintaining
the quality of life before divorce" is still followed.
This latter standard is an outrage for a modern country, as it encourages
what's popularly known as "gold digging"-- a husband who is well-off
and responsible is perversely hit much harder in divorce than a true deadbeat,
since his higher earnings and potential earnings, from skill and education,
make him liable to be drained of millions of dollars, yet if his earnings or
business success falter in a given year, the imputation is not adjusted, and he
can be sent to prison. This is an old and dangerous relic of the Anglo-Saxon
legal tradition, which the rest of the world has jettisoned or never had in the
first place—profiteering of any sort from divorce is strictly taboo elsewhere,
and child support and alimony (if it even exists, which it largely does not
elsewhere) are deliberately set very low to discourage divorce filings, to
encourage d divorcing spouse to find productive work and to encourage
successful and skilled spouses to marry without fear of financial calamity.
Yet the modern form of Anglo common law has installed this perverse, obsolete,
contradictory practice into standard family court decision-making at the same
time that Anglo-American 3rd wave feminist theories assert that those same
high-earning men are reviled as deadbeats and worthless members of society,
incapable of custody of kids and unworthy of respect from society or the
courts. This is also why US family courts too often, in practice, are quite
hostile to the well-being of actual families and regard family-oriented women
with such contempt. They are merely reflecting the doctrines of 3rd wave
feminist academic theories that dominate the legal journals, seminars and
lectures where Anglo and especially American law students learn what are
“acceptable grounds” in crafting decisions.
Adding
insult to injury, in the minority of Anglo jurisdictions where family judges
are bound by expressly written statutes in deciding asset division and
maintenance payments (Britain in particular is notorious for this), these
statutes almost without any exceptions presume fault and financial
responsibility on the man’s shoulders, whatever the actual circumstances. In
fact I should stress here, I do not have a problem with judges using their
reflection and sense of individual judgment to consider individual
circumstances and special cases. I do not agree with statutory “3 strikes” laws
that make punitive demands devoid of considering circumstances. But such
fairness and rationality are not what modern Anglo common law instills in
family court judges. The power of conflict theory and cultural marxism in Anglo
legal scholarship means the weight of precedent creates an anti-family,
anti-male and anti- “good man and woman” standard de facto for both statutes
and case law. It is thus that the decision process for divorce cases in any
Anglo country will almost always follow the perverse demands of the cultural
marxist orthodoxy.
Result? The latitude of judges in common law systems, together with the
conflict-theory basis of their doctrines, makes their power to impute financial
obligations on financially successful spouses, particularly ex-husbands and
fathers, dangerous in any real world context. Yet, as if the irony couldn’t get
any more bitter, even the minority of statute-driven family courts in the Anglo
world are still stacked against you. In such cases, even the small potential
relief of having a more reasonable family court judge, not steeped in the
family-wrecking doctrines of concept theory, is almost always nullified by the
statutory demands of custody assignment, child support and spousal maintenance.
To contrast, judges in the civil law world do retain power to apply rationality
and humane judgment on a case by case basis. Civil law does not mean judges
have their hands tied, it simply means that they cannot, and thus have no
incentive, to legislate from the bench. Court decisions do not become citable
precedents in case law. Thus it is that legal decision-making is based on the
more democratic and rational foundation of carefully considered statutory law
with input from the people, as opposed to judicial elites in the Anglo world
who have their legal thought shaped by the radical, irrational, misandrist and
anti-Western conflict ideologies that mold them in law school.
The very fact that judges’ decisions in civil law countries do not figure into
the weight of precedent—with judges having no power to “make law” through case
law—thus means that judges in Europe, South America, most of Asia and the rest
of the civil law world are freed up to be more humane and more reasonably
consider realities as they are on the ground in family law cases. By way of
hard contrast, and as you have correctly realized Mr. Kshatriya, the very power
that divorce court and general family court judges in the United States and
Anglo common law world possess, in fact makes divorce law and family law judges
a kind of priestly, undemocratic elite in the Anglo world. They need not be
rational or respond to realities as they are on the ground, and their power to
make law means they can indulge the radical ideologies and orthodoxies of
“right thought” and political correctness in law school to create heavily
misandrist and anti-family law through their written opinions. This is why the
takeover of academia by the Frankfurt-School and its anti-Western, anti-family
ideologies of conflict theory and cultural marxism are so dangerous. Again as
you have observed, the common law of the Anglo world gives them the power to
translate their radical ideologies into concrete law-making and case precedents
that are doing more damage to family formation in the Anglo world than any
other factor. To see why, I need to explain a bit more what conflict theory,
the heart of cultural marxism, is within the family law context.
2:
The cultural marxists and critical and conflict theorists know how the judicial
law-making power of Anglo common law suits their purposes in the world of
family law. As their goal is the weakening of the West and its institutions and
families, mainly those for white American and Asian-American communities with
more stable family structures that help maintain a functioning society, the
Anglo common law system gives the Frankfurt-School cultural marxists a weapon
to convert their radical, dangerous anti-Western ideologies into concrete
practice that has terrible real world consequences. So it is little surprise
that the Frankfurt-School ideologues have made such a co-ordinated effort since
the 1960’s to take control of law schools and the faculties and institutions of
US and Anglo academia in general. By shaping what becomes “right thought” in
academia and law schools, they have gained the power to decide the thinking of
the “elites” in legal scholarship, just as their general hold on academia has
helped to shape a mass media culture that stigmatizes white and Asian-Americans
and their counterparts across and about the Anglo world. Demanding the
decision-makers of these societies swamp themselves into cultural collapse with
mass immigration from the 3rd world or suffer the career ruin of being tagged
“racist”.
The ugly twin to this effect in law schools is the cultural marxists’ takeover
of legal institutions and journals that have “normalized” misandry as well as
hatred of families, responsible and good-earning fathers and mothers, and in
general spouses who make actual good mothers and fathers, They are the ones who
suffer the most in the perverse world of American and Anglo family courts, and
that’s no accident—our law schools, under cultural marxist influence and
empowered by the judicial precedent-making of Anglo common law, have
deliberately shaped elite legal thinking to reflect the anti-Western,
anti-family orientation of the Frankfurt-School and the disgusting alliance of
the anti-Western left with the neoliberal, family-hating, open borders and
“business globalist” right (as opposed to segments on both left and right that
value families, communities and tradition). Thus the agony that good parents
and spouses, especially good husbands and fathers of white and Asian-American
stock, routinely suffer in divorce court. They are the “enemies” in the
conflict theory model of the world as put forth by the Frankfurt-School, since
their family formation is the very bedrock of the US, Canada and other Anglo
countries as Western societies. That is why they must be broken.
It is no exaggeration to take note that Anglo common law in the realm of family
law and divorce, is the most powerful gift that cultural marxists have been handed
in their drive to bring down Western societies, as it allows them to directly
translate their conflict theory ideologies into actual case precedent that has
the force of law across the Anglo world. Citizens of Anglo societies,
especially productive family-oriented white and Asian citizens targeted as “the
enemy”, are punished harshly in Anglo family courts with unreasonable and
financially wrecking child and spousal support imputations that in reality, are
also massive wealth transfers to the predatory and disgusting family court
monster itself (both the lawyers and the court and state, as I’ll get into).
Thus
is it that good families and men in particular in the Anglo world, are
perversely forced to pay for the very state instruments and predatory financial
interests as I’ll get to below, that are engaged in a subtle but full scale war
to make family formation too dangerous to consider in the Anglo world. A ripple
effect and intentional one at that, is that good, intelligent, educated and
high earning men, especially, are discouraged from starting families and drift
into MGTOW. Which is understandable, except that of course it leads to a
collapse in the birthrate and overall fertility of the educated, and
particularly white and Asian segments of society. It also weakens the fabric of
society in classic “idiocracy” fashion by discouraging the most responsible
segments of society from procreating, and giving a perverse advantage to the
irresponsible, to those with nothing to lose and especially, those from foreign
3rd world cultures imported to the Anglo world to displace the (mainly)
educated and skilled white and Asian-American segments that are forced to
subsidize their own demise.
To better understand this, pick up a biography book at some point and read
about the great inventors, scientists, composers, thinkers, leaders and poets
from 3 centuries ago, in the West and other parts of the world. What you will
find unsurprisingly, is that they were disproportionately the products of
strong families with educated and intellectually driven parents. This does not
mean that such families were perfect of course, there was plenty of infidelity
and even polygamy and polyandry in many of these families, parents and spouses
messed up then just like today. But the combination of community and society
incentives meant that people had their eye on the bigger picture, they would
get past such stumbles and incentives, financial and community, were made to
ensure that educated and skilled people would be encouraged to start families
and raise many children.
The Frankfurt-School founders were well aware of this fact and they set out,
with deliberate plan in mind, to create institutions in the West to remove
incentives for educated and skilled people to start families, and to penalize
them financially and in other ways, if they did. Not only does the fertility
rate of the targeted communities drop as a result, but the quality of the
Western societies targeted is also relentlessly worn down in a vicious cycle.
The motivated, high-achieving people that do great things and help a society
take pride in itself, in effect are prevented from being born. Thus making the
targeted society more vulnerable to the manipulations and insidious undermining
of the Frankfurt-School ideologues and less able to see the big picture of the
ideologies that are damaging them.
The main ideological product of the Frankfurt-School founders’ anti-Western
program is what has become called conflict theory, that overlaps closely with
what is popularly known as cultural marxism, political correctness, critical
theory, white privilege theory, multiculturalism and the “diversity” obsession
of Anglo academia and media. Including diversity officers and administrators
who are paid quite handsomely for their work in shaming and weakening the
fabric of their host societies while our students are buried deeper in debt
from their tuition.
This is one of the advantages of becoming a
professor, something I did not realize while working privately before that. To
a reasonable, fair minded person, the extreme cultural marxism that results
from conflict theory would appear to be simple madness, but I’ve been to enough
campus events and lectures, and read enough journals both legal and outside the
law field, to see how the theorists of the Frankfurt-School in its modern form
operate. They’ll try to deny there’s a common ideological link to their
constant rants about white guilt, white privilege and the war against the
oppression of the West—such irony as the cultural marxists are the privileged
elite of academia living high on their indebted students’ forced
“contributions”. But regardless, what truly makes the Anglo world so uniquely
vulnerable to the doctrines of conflict theory, is the practical law-making
power through Anglo common law that’s given to judges molded by the “right
thought” doctrines of conflict theory in the law schools. The shame factor of
the puritanic strain in Anglo society makes their job easier, as I’ll get to.