by Martha Albertson Fineman
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“This Article is an exploration of the tension between “instrumental” and “symbolic” law reform. It examines this phenomenon in the context of the feminist reform movement to revise the rules governing the economic incidents of divorce in Wisconsin. The tension in this particular reform movement arose from the potentially conflicting goals of result equality (which I will argue would have been “instrumental” reform), and rule equality (which I consider “symbolic” reform). Both of these concepts of equality incorporate and depend upon certain theoretical and factual assumptions about society, the role of women and the function of law. Yet there are important areas where these underlying assumptions, and reforms that might be based on them, diverge from each other. It is my argument that, given the socioeconomic factors that typically disadvantage women in the market while simultaneously favoring their assumption of the major domestic responsibilities, result equality must be the primary focus of any effective reform of the economics of divorce.
Symbolic divorce reform, in the form of rule equality, expresses the more traditional association of equality with sameness of treatment. Rule equality avoids the pitfalls of protective or paternalistic rules, which can be used to hurt women as well as to help them. Rule equality assumes that the groups subjected to the rules are fundamentally the same, a view that is compatible with the highly important symbolic task of defining the appropriate relationship between the sexes.