Domestic Violence Law Reform and Women’s Experience in Court: Th ...

Moreover, once translated, they take on a different life, and their meaning is controlled not by feminists but by legal actors with their own agendas (Römkens, 2001; Schneider, 2000, p. 6; Smart, 1989, p. 164). Law transforms elements of experience (such as being subjected to domestic violence) into fixed, objectified, and disempowering categories (such as those of “victim,” or “battered woman”), and decisions as to whether individual women fit into these categories and therefore qualify for protection are made by unsympathetic law enforcers (Brown, 1995; Hekman, 2000, pp. 296–297; Römkens, 2001, pp. 267, 283; Siegel, 1996, pp. 2119–2120). Feminist interests may even be co-opted to serve other interests (such as conservative “law and order” campaigns) that are antithetical to the original feminist intentions (Ferraro, 1996, pp. 77, 79; Scutt, 1997, pp. 137–143; Thornton, 1991, p. 464). According to this view, the real problem for women may turn out to be not lack of legal recognition, but hostile social discourses of which law is only a part. Thus, rather than accepting law’s claims to be a powerful instrument for justice, feminists should focus their attack on those wider discourses as they are manifested in law and elsewhere (Frug, 1992, pp. 148–153; Smart, 1989; 1990, p. 20; 1995, p. 219).

These different accounts of the implementation problem in law reform are perhaps not so far apart in that they each identify ideas or discourses circulating both outside and inside the legal system, which may operate in opposition to particular reforms. The critical account also identifies structural features of law—its tendencies to individualize, decontextualize, and categorize, and the established processes and remedies it offers—which may limit or actually prevent the achievement of desired outcomes. Where they differ most markedly is in their degree of optimism or pessimism about the possibilities for beneficial legal change in the short, medium, or longer term—a question beyond the scope of this study.

What experience of and theorizing around (feminist) law reform activities tells us, however, is that we should expect implementation problems. But the exact nature of those problems is not necessarily predictable. If they were, we might have worked out some appropriate counter moves before now! Lack of predictability is inevitable because law does not operate monolithically.