Here is the second part of the Disillusioned Law Professor's searing critique of Anglo-Saxon Common Law, the true fountainhead of institutionalized misandry in the Anglosphere:
1: Now for the point by point, starting with a clarification on just why the Anglo common law in its post-20th century form, wreaks such havoc on families and ruins so many in crippling divorces, with far more than half of Anglo marriages falling apart.
The essence of what Mr. Kshatriya and the Blog contributors have discovered here is correct: that is that the Anglo common law system confers enormous power to the judiciary in notable contrast to civil law systems, which are governed more by statutes and broader democratic and popular will. This is what the common law, in both its pre and post-20th century forms, means at its heart: the judges’ cumulative decisions and opinions create concrete, enforceable mandates of law in conjunction with, and often beyond anything contained in statutes and written constitutions. There was a time early in my career when I would have touted the advantages of the common law, at least for certain areas such as property negotiations and riparian rights (water management). But after learning and comparing the common and civil law systems, and in particular seeing how the divorce process has otherwise devastated the finances and emotional state of my once prosperous and happy son, I have come to conclude that there are certain areas where the modern form of the common law has become dangerous, family law being the most prominent.
And unfortunately as I will explain below, the dysfunction and corruption of Anglo-American common law in the divorce court context has reached dangerous proportions with no effective remedy to correct it. This, in practice, is at the foundation of why expatriation from the Anglo world has become unavoidable for marriage and family formation. As I indicated at the start, more broadly there is no realistic prospect in the short or long term of reforming the structures, cultural influences and legal decision-making patterns that have forged modern Anglo-Saxon family law. Not even a Constitutional Amendment, or any other sort of reform driven by popular impulses or collective action. Here is why.
The essence and power of the common law foundation of Anglo family law, in key regards, transcend even the U.S. Constitution itself (and its counterparts across the traditionally English-speaking nation states). You’d have to reform the basic substance and modern interpretations of the common law to achieve substantive change in the dreadful career, finance and family-wrecking dark heart of Anglo family law.
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.
The final part of this brilliant exposition will be posted soon.One thought occurs to me, however - if teaching or practicing law has become a dishonourable profession in the Anglosphere, why continue to do it?