Thank you for your article entitled, "An Attempt to Explain Irrational Family Law."  What I hold to be the central point of your article was very insightful.  I am amazed (in a good way--your contribution to legal and justice thought is of notable weight).  On such a contribution, I would like to sculpt. 

POINT ONE

The, "irrationality" of the article could be better coined as pro-forma ultra virus logic.  That is to say, the substantive determinism you identify in the courts (and indeed, in society at large today in the West) is outside the legal mandate and outside the jurisdiction or province of the courts.  That is true, quite a poignant point you make clear, although in other language. 

Courts should not balance interests:  they should balance rights and responsibilities, as well as freedoms.  These latter concepts are legal phenomena: interests are not.  The province of the legislative (i.e., law-making) branch of government is to balance rights and responsibilities.

The legislative branch legislates and constitutes:  the courts interpret. 

But the courts go beyond their mandate to interpret:  they act not as agents of the legislative branch by way of interpreting the balance (or imbalance) created by the legislative branch, they act as principals, assessing what is to be assigned gravity in the balance.  They operate outside the box to be which they are supposed to be constrained.  So, the question is:  What is driving the judges to operate outside that box? 

The answer to that question does arise from logic.  And that same logic serves to explain why today's public schools are "student-centred," why parents are assigned less respect than they had even two generations ago, why higher levels of protection are assigned to children than two generations ago, why the custodians of children are assigned greater authority than the non-custodians and why children are assigned greater respect than they were two generations ago. 

SUPPLY AND DEMAND

In the day when families had many more children, the relative abundance of children necessarily meant that the people market was flooded with children.  As such, their relative value was lessened.  The corollary to that was that the flooding of the people market with children meant that the parent or adult market was starved, while the relative value was increased for adults. 

As such, in protection of the scarce human commodity, adults, including parents, greater protection was assigned to them.  They could discipline their children, including the use of corporal punishment, as in school, and they were protected from the incursion of organs of social force such as social workers, courts and the like. 

Under the abundance-of-children/scarcity-of-adults configuration, the maxim was:  "Respect your elders."  But today, under the scarcity-of-children/abundance-of-adults configuration, the maxim is: "Respect your children." 

Under that logic, a parent is hesitant to discipline a child, which results in many such children "getting away with murder."  And for the parents and other adults, they can't even "get away with life."  The discipline problems in school are evidence if this. 

The logic is not logic encoded in law.  But the determination of supply and demand serve to usurp the courts as substantive "courts of law" and, instead, assign them the the function of being, "courts of economy." 

CONCEPTUAL CLARITY

In my university training, I took some law courses as well as many courses in political science.  Some of what I had learned actually applies to this situation.  The standard commentary about rights and freedoms (and, rarely, responsibilities) misses key concepts as it employs key terms. 

1.  WHAT IS A FREEDOM

"Where the law is silent, freedom exists."  Freedom is a residual.  It is not something which is created:  it is something destroyed.  It has no point of beginning, per se.  It results from negligence of sorts, from not doing. 

Examples of freedoms are: 

a)  Freedom of Speech,

b)  Freedom of Religion,

c)  Freedom for Mobility. 

2.  WHAT IS A RIGHT

A right is a creation.  It has a beginning point.  One can identify its birthplace and birth date.  Mathematically, one could compare it with a ray, whereas a freedom is more like a line, having neither beginning nor end. 

Examples of rights are: 

a)  Right to Vote (one can find Acts of Legislatures, Parliaments or Congresses creating such)

b)  Right to Property (title to land/land deed)

c)  Right to Sex (Marriage--in the Christian Religion, see:  1 Corinthians 7)

d)  Right to Education (Education Acts of Provinces or States)

e)  Right to Police Protection (Police Acts of various Pronvinces, Dominion, States, etc.)

A freedom is a "do nothing" whereas a right is a "do something." 

When governments act, they restrain freedom.  And so, in order to maintain freedom, constraints are assigned to governments.  Governments are required not to do.  Such constraints on freedom of religion, expression, etc. 

But in the case of rights, an obligation is assigned to governments to act, to do. 

In order not to constrain religious freedom, governments are required not to have Ministries of Religion or Religion Police.  But in order to establish and maintain a right to vote, governments are required to become head counters, address identifiers, birth date identifiers, etc. 

Confusion arises in people's minds as per freedoms and rights.  For example, consider the age-old and continuing phenomenon of chaplaincy.  Governments create chaplaincy and confiscate people's property by way of taxes under threat of imprisonment and/or fine if they do not comply, and require that people be made subject to such chaplaincy, including by way of military force.  Such includes ordered participation in religious exercises such as Remembrance Day ceremonies where one has no freedom of religion to express objection to the practices and words of such clergy.  Chaplaincy's right to religion is in utter opposition to freedom of religion of the objectors.  All levels of government have chaplaincy by way of prisons, jails, police, hospitals, military, etc.  Such constitutes not a freedom of religion:  it constitutes a right to religion.  Such is equal to the practice of Iran or Saudi Arabia.  Really, the West is not substantially different on such matters.  It merely adds the offense of lying to the offense of right to religion whereas the Middle Eastern countries noted practice the offense and admit it openly. 

Behind a right is a shadow synonym of obligation.  If I pay the price to a vendor for a chocolate bar, and he/she accepts the payment, I have a right to that chocolate bar and he/she has an obligation to give it to me.  A right to spousal support is an obligation to give spousal support. 

But the point of reference in the right to spousal support, as in a right to education, etc. is the explicit right and not the implicit, forsaken corollary or shadow synonym of obligation.  One could also call such responsibilities.  For women, the, Charter of Rights is, indeed, a charter of rights, but for men, it overwhelms as a charter of responsibilities. 

Throughout history, the normative point of reference in society has been responsibilities.  However, in the last two hundred years, it has swung to rights.  Society abhors responsibilities.  What essentially separates children from adults is that children have rights, whereas adults have responsibilities.  Over the last several hundred years, the societies of responsibilities have grown up into being societies of rights.  In other words, societies have grown from being constituted of adults to being constituted of children. 

Imbalance has replaced imbalance.  The answer requires a balancing with a Charter of Responsibilites.  Such would serve to, "out" the implicit and always-present burden of responsibilities assigned to the male and explicit, always-present benefit of rights assigned to the female. 

What is more, the creation of such a Charter would serve to make explicit key supply-and-demand concepts relevant to the whole discussion of human rights, human freedoms and human responsibilities.  Imbalance would be, "outed."  Half truths would be replaced with whole truths and, as such, the principles of fundamental justice, to tell the truth, the whole truth and nothing but the truth would be advanced.  Sound consciousness would result.  Discussions would no longer be pink, but rather blue-and-pink, that is to say, purple, the color chosen by the true gender-equality activists. 

The supply-and-demand determination as per rights, etc. is made plain in the following example:  "Say to an arrested felon, 'You have the right to remain silent.' and it is taken as a right; say to a student in grade 8, 'You have the right to remain silent.' and it is taken as a responsibility." 

Consider military and naval service.  When people are denied the possibility of such service, it is called a human-rights violation (the UN has an established practice of such referencing).  Such is the case to the extent to which people wish to participate in such service.  But when such participation is in excess of demand, it is called a human-rights violation.  Consider the draft. 

In short, a supply-equals-demand configuration equals a "right."  A supply-does-not-equal-demand configuration equals a "responsibility." 

CONCLUDING POINTS

"The best interests of the child." is economy.  "The rights, freedoms (and responsibilities) of the father, mother and children are law.  The language, "The best interest of the child" tends very strongly to be an explicit synonym for female-parental right; and serves to assign a shadow synonym of male-parental responsibility, which has not been outed in popular consciousness. 

All rights and freedoms are founded on responsibilities.  Even the equality of rights is mathematically insufficient to establish equality, for equality is not founded on rights alone but also responsibilities which are assigned asymmetrically.  Divorce settlement is certainly such, as is military and naval service (and indeed, so much else in society at the explicit overburden of cost to men). 

The Ten Commandments wa a Charter of Responsibilities in everything but name.  Let us follow that lead assigned to the Children of Israel so that the Children of Canada and elsewhere may grow into a truly mature and considerate society which is plural in its orientation to interest accommodation. 

Again, thanks, Dave. 

Sincerely,

Mark Waldie.