A couple days ago I read a post at Volokh on the meaning of “common law” in the seventh amendment, and how at the time it would have been intended to distinguish from “largely long-defunct” courts of equity. I was reminded of that when I read Roger F. Devlin saying that family courts are not subject to judicial review because they are courts of equity rather than law. I thought most of that was just civil rather than criminal law and treated the same, but I guess not. If it’s not based on law, that throws a wrench in my argument that simply scrapping marital/family law would solve most paleo/manosphere complaints. I’m dubious about the whole notion of equity or fairness, law is at least something written down and promulgated by government so its actions are predictable. I suppose if private parties trusted a third party to give mutually beneficial outcomes it could make some sense, but a government monopoly is another thing. I suppose I should read up on what the hell courts of equity are anyway to have an informed opinion. Wikipedia has little to offer, and seems to contradict Devlin.
June 28, 2011
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June 28, 2011 at 7:20 am
Family courts are perfectly subject to judicial review and one can appeal settlements and other orders to higher courts – especially should a particular issue run afoul of certain Constitutional considerations (eg: arbitrary judicial direction concerning a dispute as to religious upbringing is quite common in the few appeals that occur).
The catch is that these are almost never successful for the precise reason that the written family law in nearly every state specifically allocates as much discretion as is constitutionally permissible to the family court judge with instructions to
do whatever the hell they wantapply the principles of justice and equity when they may (or may not, if they don’t feel like it) consider a multitude of particular circumstances.The only way to get an ordinary decision overturned on appeal, therefore, is to demonstrate an obvious abuse of discretion – which in practice is effectively impossible. You don’t really have any kind of ammunition with regard to “this is inconsistent with long-established precedent” because the response will always be “Every case is unique and therefore distinguishable”. The truth is that family cases, like tort cases, are actually very similar and follow the same patterns of human interaction.
So, if you can see how such a system would work in practice – you have a “written law”, but it’s not real law, it’s more like “administrative law” – it’s just an open-ended delegation of power and authority, the application of which is theoretically unpredictable, but, again, in practice, tends to favor the woman the overwhelming majority of the time in a way you can almost never successfully appeal. Many states do, in fact, have specific “guidelines” but all of these contain opt-out clauses and can be trumped by the judge if he claims his result is more equitable.
Men would be much better off in general if there were actual law, something highly specific, predictable, and restraining of the discretion (and biases and prejudices) of the judges and their tendency to be highly selective and speciously interpretive of facts as a cover to justify the reasonableness of their gut desire. At least with specific written law, any men’s group could argue their case by actually referencing the real consequences of dissolution instead of constantly being told “that doesn’t always happen” or “it only happens to bad fathers” or being asked to produce infeasible statistics. They could say “This is the law as it is written, it is unjust, and ought to be changed to our proposed alternative”.
I submit that we can’t scrap family law, but what we have is actually “broad delegated power to dictate the outcome of family affairs” and not real law. No law may be better than fake law, but real law is better than either.
June 29, 2011 at 2:51 pm
The distinction between equity and common law has very little to do with the meaning of “equity” in moral philosophy. The only connection is that originally equity represented the exercise of the “king’s conscience,” whereby justice might be rendered when common law was powerless to do so. Equity courts were thus courts of royal prerogative, and became widely unpopular in the period leading up to the English Civil War because they often served as instruments for the arbitrary exercise of royal power.
Courts of equity (chancery) simply deal with a different part of civil law than do the courts of common law. The American founding fathers inherited from the time of the English Civil War a Whiggish suspicion of equity courts. In the early nineteenth century, there was a tendency in the U.S. to merge the two kinds of jurisdiction. They remain separate, however, in some states. Delaware, in which many large companies are incorporated, has a highly important court of chancery, because corporate law falls under the head of equity rather than under that of common law. Trusts also are within the jurisdiction of chancery rather than common-law courts. Injunctive relief is equitable; common law provides only remedial (after-the-fact) relief.
“Family law” is a concern of equitable jurisdiction only because, in English law, it had been the province of ecclesiastical courts, the chief of which was the Court of Arches at Canterbury. Their procedure was strongly influenced by Roman civil law, and thus closer procedurally to that of equitable rather than common-law courts. There being no established church in the United States, matters related to the law of marriage were attached to the jurisdiction of equity courts. In England, divorce was the province of ecclesiastical courts until 1857, when it was transferred to civil jurisdiction.
Szabo’s criticisms of the procedural aspects of Roman law apply also to the Roman-derived character of equitable procedure, and reflect the same concerns articulated about the latter in the seventeenth through nineteenth centuries. A useful essay on this subject is “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” by Stanley N. Katz, in “Law in American History,” eds. Donald Fleming and Bernard Bailyn (Boston, 1971: Little, Brown & Co.), 257-86.
June 29, 2011 at 9:19 pm
It’s highly unlikely that I’ll ever read that collection, but I appreciate being given pointers nevertheless.