Fundamental Law and Courts-Related: ARTICLE

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‘Maxims of Common Law’ Are Ignored In Family Court
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.

Maxims are absolutely essential to the preservation of rights and fair treatment to all litigants. Maxims:

  • represent ‘self-evident’ truth – as mentioned in our Declaration of Independence when it referred to ‘all men’ as being created equal.
  • serve to guide judicial determinations in the same way that ‘axioms’ guide the analysis of mathematical determinations
  • promotes fair dealing and unbiased justice – a clearly essential issue in the purpose of courts

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 one:

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 time.

The safety of the people cannot be judged but by the safety of every individual.  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 children.

The Burden of Proof lies on him who asserts the fact –not on him who denies it. 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 his oath. 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 court.

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 place.

END

 

Shane Flait is a writer and educator