Interpreting the Role of the Law
The first story is from the National Post, and is about a man who is being forced to pay child support to his wife for her twin 16 year-old boys, even though a paternity DNA test has proven that the children are not his. The judge determined that these payments were the responsibility of the man because he was the "was the only father the twins knew during the course of the marriage."
The second story was regarding Kimberly Rivera, and her attempt to claim redeployment to Iraq as grounds for a refugee claim. The context of this story is that she completed a tour a duty for the U.S. Military in Iraq in 2006, and upon information of redeployment, moved to Canada with her family to live in an effort to get out of her military duty. A judge threw out her refugee claims today, and order her to return to the United States by January 27 or face deportation.
These brief summaries do not do the stories justice, and I encourage you to read links for more details. However, for the purpose of my "connection," these will do.
As I was driving, I began realizing that the role of a judge has changed greatly from the Modern Era. From the development of Common Law in Britain until approximately 1950, the role of the judge was to determine through trial whether an act was right or wrong in accordance to the Law that was the standard in the instance. So a judge was given a standard to compare the act to in an effort to make a just decision.
No longer is this the case. The role of the judge has moved from deciding whether an action was in accordance with the law, to how the law applies to the action. This change has been fundamental since the baby-boom generation began to rebel against institutional structure in the 1950's.
In the first story, according to the Law, the man should not have to pay child support for the simple fact that child support is the responsibility of the biological parent of the child. As the DNA test confirmed he was not the biological father, he should be free of the responsibility to support the children. However, according to the judge, his actions of taking responsibility for the children from birth has given him the equivalent amount of responsibility as a biological father, and thus he is forced to continue paying the child support. Add to this that he was not told that there was even a chance that he was not the children's parent until six years after their birth, a length of time that caused him to have a parental relationship, and the interpretation of the law becomes even more questionable.
The Rivera case is another instance where the interpretation of the law was called into effect in order to come to a conclusion. Refugee status is reserved for people who, if forced to return to their native country, would face physical danger, or persecution for their religious views, race, or personal philosophy. While argued that, if forced to return, Rivera would be forced to face military duty in an insecure Iraq, or military discipline for deserting, but it was determined that her rights as a human would not be violated if she were deported, regardless of whether her personal views on the war were opposing the idea of redeployment. These cases bring me back to the original observation: that the role of the judge has moved from determining guiilt/innocence, to determining the context of the offence in regards to the law.
The first thing these judges both did was attempt to determine the victim in the case. In the Rivera case, they tried to place themselves as the victim of the United States unfair military contract. However, the judge (correctly) saw that the person breaking the law, in this case Kimberly Rivera, was the culprit, making the U.S. Military the victim of a broken contract. This decision, in my mind, was made based on the Law itself, interpreting the offence and the claim in regards to the action itself, rather than the action in context against the idea of whether the War on Terror is legitimate and fair situation for a person to be forced into. As I was listening to the radio, callers were saying that she should be given refugee status because the War is unfair, wrong, and information regarding the War is misleading and misrepresented. Seemingly lost on these people is the fact that the War is not on trial: the woman is.
Meanwhile, the judge that decided the man must pay child support for his non-biological twins, placed the title of victim on a completely different group. Essentially, civil-court or family court is a place where people can bring complaints of victimization to be heard and determined if legitimate. The man brought his complaint, that he was mislead to believe the twins were his offspring, to be heard, in the hopes that his financial responsibility would be negated. The basis of the complaint, that the responsibility for the twins belonged to the biological father, is legitimate, due to the fact that he was being forced to pay child support because he was believed to be the biological father up to this point. Thus, he claimed that he was the victim of misinformation.
The judge, however, completely disregarded his claim to victimization, and placed the status of victim on the twins. The problem with this is that the twins, while being involved in the proceedings of the court indirectly, had no real claim to this status in regards to the Law of responsibility being argued. The case was not about whether the twins deserved to be supported by two parents, but as to who was to be the second source of financial support. However, the judge succeeded in perverting the law to continue to place undeserved financial responsibility on the man, in the name of creating a better situation for the third-party children, while their biological father remains free of responsibility for his actions.
Once again, I was amazed at the callers who called in. I repeatedly heard that the judge was right because the children deserved to be supported. I am not one to argue that the children do not need to be supported. However, I will argue vehemently that the man is not responsible for children that are not his biological offspring. And I will argue it for a single reason: that if the woman had lost the case, and the man was freed of his support responsibilities, she would have been able to, as difficult as it would be, to find the man who fathered the twins, and search for financial support from him. She was in the wrong, and admitted as much, admitting to misinforming her ex-husband, being involved in an extra-marital affair, and having unprotected sex. Nowhere was her husband to be held responsible for these actions. Yet he is being held responsible for the result of the wrongful actions.
"But he has a moral responsibility, because he acted as father for all those year." And the anthems of bleeding hearts ring out! If we were to look at society, we would see many children that grow up with no father figure at all. The fact that this man took responsibility for the children in their house, helping raise them and support them for the first sixteen years of their life needs to be seen as a gift, not as a reason for continued responsibility. This is essentially a case of a father running out on his child, and another male coming into place as a role model out of the goodness of their heart. It is a gift, and the children were lucky to have this in place. It is not, however, a cause for punishment for the male role model. The financial responsibility lies solely on the biological parent, the person whose actions caused the birth of the children, because if it were not for their actions, the resulting children would not have been conceived.
This brings us back to the role of a judge. No longer does the judge hear both sides of the case, and then determine guilt according to the law. Now, the judge hears the context, determines the victim, then studies the results of the case against the law, then analyzes those conclusions against the context before determining the outcome of the case. Essentially, they determine if the law applies to the case, or if it needs to be reinterpreted to fit the situation to the judges' personal preferences, a process that they are free to embark on at any opportunity.
I feel that the necessity for reinterpretation is not nearly as prevalent as it is convenient. Judges have become political weapons for special-interest groups, and this bothers me. A judge should be put in place to determine if an action is against the law, not whether the judge personally agrees with the judgment. However, if a special-interest group wants a law changed, they merely take on a case under the law in question, and continue to appeal until they find a judge who is sympathetic to their cause.
If judges are to be used as vessels of political changes, then they need to be elected. Lifetime appointments, like those in the senate, are not to be used to affect political change, but to create a continuity in the application of political and legal clauses and causes. They are to be in place to create a stable environment. If the judges want to create a difference in the political sphere, they need to go through the same electoral process as politicians, in order to ensure that their sympathies are indeed in accordance with the will of the majority.
I, for one, am against the election of legal officials, due to a continuing fear of having judges make decisions on the basis of building their electoral support, and other corrupt practices. Instead, I would argue for a more strict list of decisions to be made in the cases. A judge should not be allowed to re-interpret laws, but enforce them and fairly decide if the law was indeed broken. My feeling is that, in criminal law, a judge should be given a list of acceptable decisions for each case, and told to pick the one that matches closest. This setting of parameters for the verdict would be the only way to ensure that the proper ruling is given. A judge also needs to write a statement stating why the verdict was decided on, and thus should be "judged" by a panel from the Supreme Court as to whether their decisions were acceptable against the Code of Law.
The reinterpretation of the Law should be left for a joint council of the Supreme Court, and a select group of elected leaders. Not included in this group is unelected special-interest groups, partisanship, and corporate/industrial/union representation. This would allow the interpretation of laws to become a election issue, without placing the integrity of the judges in a position to be undermined.
A judge has one of the hardest jobs there is. Determining whether a person is guilty or innocent is not a small matter, and seldom an easy decision. However, there is a need for ensuring that the intent of the Law is not perverted by personal philosophy or sympathy. The reason the Common Law was created, was in an effort to ensure that there was equality throughout the nation of Britain, both in judgment, discipline, and in the Law itself. Common Law was the basis of the Canadian legal system and code, and therefore the necessity for Common Law must remain the same: to create a code under which equality, both in the Law, the judgment of the Law, and the punishment under the Law, are available throughout the nation. Giving judges the ability to reinterpret the Law does not ensure this.
Follow the Law, and no one can complain. Make exceptions, and the Law is moot. This is the connection. Hats off to the judge of the Rivera case, and a strong warning to the other judge. This is what is needed for equality.