‘Maxims of Common Law’ Are Ignored In
by Shane Flait (2010)
Courts make determinations in law and in equity. By ‘in law’ is
meant following a specific law –
constitutional law, state law, etc. By
‘in equity’ is meant determining what is
‘fair’ to do where now law specifically
rules. An example is determining how to
distribute the asssets in a divorce
among the husband and wife.
Common law refers to the myriad of decisions made by judges and
appeals courts. Maxims of Common Law are
‘guiding truths’. Adhering to them helps
judges make fairer decisions. They’re
ignored in family court determinations
since fairness is a wholly secondary
issue. This article overviews what these
Maxims are absolutely essential to the preservation of rights and
fair treatment to all litigants. Maxims:
truth – as mentioned in our
Declaration of Independence when it
referred to ‘all men’ as being
serve to guide judicial
determinations in the same way that
‘axioms’ guide the analysis of
promotes fair dealing and
unbiased justice – a clearly
essential issue in the purpose of
Courts, primarily established to enforce the principles of common
law, are bound by common law rules of
equity that should be grounded in the
never-changing maxims. This grounding
serves to restrain the court’s wanton
discretion in equity law determinations.
Examples of Maxims
Let’s take a look at some examples to see the nature of maxims –as
self-evidently fair. Here’s an important
The certainty of a thing arises only from making a thing certain.
This implies that the court should seek
clear proof of allegations made against
someone and not rule on just the
allegations or weakly supported ones.
Family court ignores these maxims all
The safety of the people cannot be
judged but by the safety of every
Laws which supposedly protect the safety
of some people at the expense of other
people’s rights violate this maxim. A
clear example of such a violation is
present day domestic restraining order
laws which are rampantly and unjustly
imposed upon so many fathers.
Law is unjust where it is uncertain or
vague in its meaning.
Laws should be clear so that one knows
precisely when he’s breaking such a law.
Remember the violation of laws brings
consequences on those who violate them.
Vague laws are considered
unconstitutional. An example of vague
standard of law is the ‘best interest of
the child’ standard - used to unjustly
deny fit fathers custody of their
The Burden of Proof lies on him who
asserts the fact –not on him who denies
This is based on the fact that you can’t
prove a negative. Courts that force
people to prove a negative are examples
of kangaroo courts. Family courts jail
fathers when they can’t prove that they
don’t have money to pay!
No one should be believed except upon
This simply means that anyone who will
give testimony must be sworn in. That
way he can be charged with perjury -
which is a felony (a serious crime) – if
he can be found to be intentionally
lying. No ‘swearing in’ means no perjury
and no penalty for lying.
Perjured witnesses should be punished
for perjury and for the crimes they
falsely accuse against him. This is the bottom line of enforcing honesty in court testimony.
Unfortunately perjury is almost never
punished –allowing the degradation of
court integrity – so obvious in family
Every home is a castle; though the winds
of heaven blow through it, officers of
the state cannot enter. This is from English common law which made a man’s home
sacrosanct. It should still be true. It
requires officers to have warrants to
enter a home. A warrant is permission
from a judge based on good cause to
enter a home.
No man should profit by his own wrong or, He who does
not have clean hands, cannot benefit
from the law This is self-evident.
An extreme case is the child that pleads
mercy because he’s an orphan – but only
because he murdered his parents.
He who uses his legal rights harms no one.
But, fathers are routinely punished by
seeking their rights in family court.
No one is punished unless for some wrong
act or fault.
But forced into the noncustodial status
for doing no wrong would be considered
punishment by any reasonable person.
It’s natural that he who bears the charge of a thing, should
receive the profits. If you have all the obligations for something but none of the
benefits, then you are a slave.
Fathers who go to family court observe clear violations of these
maxims all the time. Such violations
mean that there is a tyranny taking
Shane Flait is a writer and educator