Implementing Equality: Ideology, Contradiction and Social Change

Abstract

This Article is an exploration of the tension between “instrumental” and symbolic’ law reform. Instrumental law reform involves creating legislation oriented “towards influencing behavior through enforcement,” while symbolic reform is “an emergent property” of the legislative process, a result of intermingled legislative ideas that inform our social world and form a basis for political action.

This phenomenon is examined in the context of the feminist reform movement to revise the rules governing the economic incidents of divorce in Wisconsin during the mid-seventies. The tensions in this particular reform movement arose from the potential conflicting goals of result equality (“instrumental” reform), and rule equality (“symbolic” reform). While both depend on certain theoretical and factual assumptions about society, the role of women and the function of law, there are important areas where these underlying assumptions and the reforms that might be based on them, diverge.

This paper argues that given the socioeconomic factors that typically disadvantage women in the market while simultaneously favoring their assumption of major domestic responsibilities, result equality must be the primary focus of any effect reform of the economics of divorce.

Keywords: Instrumental reform, symbolic reform, divorce, rule equity, result equity, feminism, dependence, no-fault divorce