The Enemy Is Not the System but Political Expectations

Posted on October 17, 2022


People who are outraged by how protective order applications are vetted and how hearings are conducted often voice disbelief that laws and basic rules of civil procedure can be casually violated.

Makes sense.

It’s certainly true that wild schisms exist in how courts process cases, for example, between the codified words that we read in law and in canons of ethics and the way judges dispose of dockets.

Expectations influence performance.

The thing to understand is that law is not dissimilar to language. If you want to know the definition of a word, there are books called dictionaries that are supposed to reliably tell you what the word’s hard-and-fast meaning is. The truth, however, is that language is a labile thing; it’s controlled by usage. The word effete means worn out, but because it sounds like the word effeminate and has been used wrongly over and over by people who should know better, one of its “alternative” definitions is unmanly. Even how words are pronounced is influenced by usage. The double-c sound in the word flaccid, which means limp, is the same double-c sound in success, access, and occidental. But flaccid is typically pronounced by literate people as though it rhymed with acid. So that’s acknowledged as an “acceptable” pronunciation: because it is favored.

The tide of human expectation informs language, and it informs laws and how they’re applied. Judges are made aware of the expectations of the law, but what they are finally answerable to are the expectations of politics. Outside pressures are the invisible dictator.

Restraining order hearings are perfunctory 10- or 20-minute charades; judges enjoy almost unlimited latitude in “formulating” their decisions; and those decisions are seldom appealed. So the adult courts aren’t particularly cognizant of what the baby courts do, and injustices go unattended.

“What can be done?” is an exasperated cry I often read from people who’ve been steamrolled in one kangaroo court or another. The answer is simple and impossibly hard: You have to change public perceptions and expectations.

As long as restraining orders are popularly perceived as necessary-tools-to-protect-women-and-children-at-risk that are essential to the common good, all rumblings about misuses might as well be directed down a manhole.

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