Domestic Violence Law Reform and Women’s Experience in Court: The Implementation of Feminist Reforms in Civil Proceedings
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Domestic Violence Law Reform and Women’s Experience in Court: Th ...

Chapter 1:  Introduction
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The ability for internal legal cultures to persist and thrive in opposition to legislative mandates may be attributed to the relative autonomy of legal decision makers and the wide areas of discretion they possess. Thus, according to Horney and Spohn (1991),

The chronic failure of reforms aimed at the court system suggests that reformers have misperceptions about the nature of the judicial process. Most reform proposals assume that we have a hierarchic, centralized, obedient system of courts that will automatically and faithfully adhere to new rules. These misperceptions cause reformers to overestimate the role of legal rules in controlling the behavior of decisionmakers and to underestimate the role of discretion in modifying the legal rules…Numerous studies have demonstrated limited impact of reforms when officials’ attitudes were at odds with reformers’ goals…Officials may modify or ignore reforms that threaten the status quo by impeding the smooth and efficient flow of cases or that require changes in deeply entrenched and familiar routines. (p. 120, references omitted)7

In line with this view, some commentators have suggested that incremental reforms are likely to be more successful than radical reforms, as they do not ask decision makers to shift very far from their existing positions, which means they are more likely to be prepared do so (e.g., Hekman, 1999, pp. 144–146; Kahan, 2000). But this argument begs the questions of whether incremental reforms are of any substantive value and whether it is possible to tell in advance what will be considered “moderate” or “radical.” Since feminist legal reforms aim to achieve legal citizenship for a previously excluded group and to provide remedies for previously unrecognized harms, perhaps they must always be, or will always be perceived to be, radical.

More fundamentally, some feminist critical theorists have argued that law is very much a two-edged sword for women, which can end up doing more harm than good. According to these theorists, law is unlikely to deliver the outcomes that feminist law reformers seek because feminist objectives must be translated into existing legal forms and concepts, which do not adequately respond to women’s concerns (e.g., Finley, 1989, pp. 891, 909; Jhappan, 1998, pp. 62–64; Smart, 1989, p. 82; Thornton, 1991, p. 461).