by Martha Albertson Fineman
Image via Pixabay
“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.
The different socioeconomic positions of women and men in our society, however, suggest that, at least for the foreseeable future, genuine reform can only be achieved through a rational, but potentially unequal, division of economic assets between husbands and wives at divorce. In such a reform these important allocation decisions would represent individualized attempts to achieve parity in position, or result equality, between the spouses. It is from this vantage point that the Article examines an instance of primarily symbolic reform; namely, the Wisconsin divorce reform movement.
The Wisconsin divorce reform is the basis for this study, but the phenomenon described is not limited to that state. Wisconsin has successfully legislated a rule equality model on divorce allocation questions, but some other states have also adopted the model by judicial decision or by statute. In still other states, the model has been proposed as a needed reform. The 1981 draft of the Commissioners on Uniform Laws addressing a Uniform Marital Property Statute further reflects the fact that the equality model is rapidly gaining adherents. The central image of the rule equality model, that marriage is a “partnership” with each spouse making different but equal contributions, is the foundation of all of these reforms.
Before examining the Wisconsin divorce reform movement to see how the rule equality concept was developed and implemented in that state, I would like to make explicit four basic premises that have somewhat limited the scope of this Article. First, I assume that both the practical and the symbolic are appropriate goals for law reform. Reform can occur with either goal as the primary or exclusive focus. In many instances, however, conflicts exist between these two goals and a balance must be struck.
Second, I adopt, for purposes of this particular discussion only, the contours of the debate concerning divorce reform that have been shaped by the majority of legal commentators. Divorce is typically discussed in terms of the nuclear family; outsiders to this unit, even though they may be family in a broader anthropological sense, are excluded. Moreover, most legal writers discussing the economic allocation questions in divorce emphasize primarily the adults in the nuclear family. This tendency to limit the discussion of rights and objectives to those of the spouses reflects an important social dimension. Except in extreme cases, the state will not be a significant source of support for the spouse who subsequently assumes responsibility for child rearing. Unless the family is very poor, the resources for the care of children are extracted from the individual parents or parent. This individualistic approach, coupled with the undeniable fact that more resources are necessary when an adult has to care for children in addition to herself, means that the allocation of private resources at divorce has a profound economic and social impact, be cause it affects the future ability of a custodial parent to care adequately for her children.
Third, I assume that public and private decisions about child custody at divorce will typically be gender related for generations to come. As a result the wife, the parent statistically more likely to be at a disadvantage in the market, will more likely also be the parent who must adjust career activities to accommodate child rearing. This adjustment will result in potentially immeasurable costs to her career and personal development.
Finally, I assume that alimony awards will continue to be extremely rare, and that child support awards will continue to be either systematically low or only sporadically enforced. Thus, given the predominant view of the children’s future economic well-being as a private or family function and given that enforcement of sup port orders might be a problem, a custodial parent cannot comfortably rely on future contributions from her ex-spouse in providing for the children, nor can she rely on any other source of support outside her own efforts.
This Article combines historical and analytical approaches. Section I describes the historical antecedents of the current Wisconsin reforms, tracing the concepts that emerged from earlier Wisconsin divorce law, as well as the feminist imagery that deeply influenced the new law. Section II contains a sociological or jurisprudential evaluation of the problems of divorce. I use statistical data to argue that there is a need in divorce for special treatment of certain women and to argue that the most appropriate reform would have been one focusing on the distinctions between the projected positions of the spouses after divorce, thus incorporating the concept of result rather than rule equality. Section II criticizes the content and structure of the Wisconsin legislation from the perspective of the need for instrumental or result oriented reform. Section III reconstructs the process of the Wisconsin reform by looking at the development of the reformers’ concepts and objectives. It traces how the Wisconsin reformers’ rhetoric fused ideas concerning divorce and feminism. Section IV discusses the divorce reform movement in the general context of symbolic legislation. With reference to the Wisconsin case study, I reach certain conclusions concerning the balancing of instrumental and symbolic reform goals.”