Philosophy and the Law

Posted By Pasadena Family Law Attorney || 5-Feb-2011

Almost a quarter of a century ago, as a first year law student, I was required to take a course on Philosophy and the Law. I absolutely hated that class, did not understand its importance, and found the subject matter very frustrating and difficult to comprehend. I recall the Professor calling upon me to answer questions relating to the material and being completely incapable of responding intelligently. To my surprise, I now regularly find myself involved in discussions relating to Philosophy and the Law as a result of my writings and people's frustrations with regard to the legal system and family law attorneys. I am proud to say that I have evolved since taking that course and have come to develop a rather fond appreciation for philosophy.

The most recent such discussion occurred on Facebook on January 30, 2011, after I posted the following statement, "The brother of a friend of mine, took his life on Wednesday, after losing his business, home, family and dignity as a result of false allegations of domestic violence by his wife in a divorce proceeding…. I wish people would realize the consequences of their actions."

In response, some people commented that, "equal parenting is needed to solve this perverse problem." Others opined that the system is somehow corrupt or that it was the result of "purposefully fueling the flames of hatred between a father and a mother to keep them perpetually tied up in court until there's nothing left for them OR the children...." A great deal of disdain toward lawyers was conveyed to me during the discussion. In fact, people were commenting about "attorney assisted false allegation instruction… and perjury," both topics about which I have previously written.

As I mentioned in those articles, " it is estimated that as high as 80% of allegations of domestic violence and child abuse are completely false…. It is widely recognized that false claims of domestic violence are often made in divorce and paternity actions in order to gain a legal advantage. " Nevertheless, " Judges almost never refer a case to the District Attorney's office for a perjury prosecution" and "persons who knowingly make such accusations are almost never subject to legal sanctions" because otherwise everyone who testified in court "would go to jail." My article on perjury also explained the California State Bar's position that "since communications between the attorney and his client are confidential, we will not be able to learn what representations by the client the attorney relied upon in presenting the client's claims."

As a participant in the Facebook discussion, I commented as follows: "I do not disagree with the statement that family law attorneys tend to 'stir the pot' and encourage or assist their clients in making false allegations. I was involved in a case where my client's wife continuously made such allegations and... made the case much more difficult and expensive than necessary. After the case was over, the then ex-wife wanted to sue her attorney for having encouraged her to make false allegations in her declaration. She was not able to pursue such a thing because it would have meant her admission that she committed perjury."

In response, someone said that attorneys "guide divorcees thru the process of annihilating the opposition, with every tactic available, and that includes very dishonest means. Attorneys are essentially giving the means to break the law, assisting in doing so, AND GETTING AWAY WITH IT." Interestingly enough, I addressed that issue in my article entitled, "Family Law and Attorneys Fees."

I responded as follows: "A courtroom/lawsuit is the wrong forum/manner for handling marital discord. The fact that attorneys (judges were attorneys first) have been found in general not to care about interpersonal relations only makes it worse. Let's not ignore the fact that emotions are so high that people going through a divorce are suffering from 'temporary insanity.'"

Someone then commented that when people are suffering from such "temporary insanity," it is the perfect opportunity for family law attorneys to "milk them" by fanning "the flames" in order to "line their pockets."

In response, I stated that, "I am merely acknowledging that the system is flawed, but that nothing is perfect. It is easy to find fault. The challenge is to find a real solution."

Someone then remarked, "The legal system's performance speaks loudly about its lack of compassion, just as loudly as it does about its lack of justice." Another person was adamant that equal parenting (50/50 timeshare) was the answer.

My new found appreciation for philosophy came out in my final remark that "The reality is that procreation proves nothing about one's ability to parent. You are imagining a world in which everyone is a good parent. I guess that the legal system and society should turn a blind eye to the fact that parents commit child abuse, child neglect and that children are permanently scarred or worse as a result of the actions of their parents. While I admit that the system is not perfect and while I believe that the adversarial system destroys families, I am not ignoring the fact that children are innocent victims of the actions of their parents. They are the collateral damage of their parents' behavior.

As much as you want to blame the legal system and the lawyers, the truth of the matter is that if people did not seek out "pit bull" attorneys to go for the jugular of their spouse/the other parent, those types of attorneys would fail to earn a living and things would change. The reality is that people deliberately seek out destructive attorneys to accomplish their dirty work and then play the blame game. I was an economics/business major in college. If there is no demand for such despicable and anti-social attorneys, the supply would diminish.

On the other hand, when the demand is great, so is the supply. Which came first? Did the lawyers create the problem or did the society's demand for such lawyers create the problem. I believe that society's demand for such lawyers created the problem and that the only way to improve things is for society in general to take responsibility for its role in creating the problem and change the reality. I may detest anti-social lawyers (the majority who do not consider the consequences of their actions and do not care about interpersonal relations), but I do not ignore the reality that they are also the most successful lawyers because they are in great demand by our society."