The Lawyer's Bookshelf
Framing American Divorce: From the Revolutionary
Generation To The Victorians
reviewed By Bari B. Brandes And Joel R. Brandes By
Norma Basch. University of California Press, Berkeley,
Calif. 237 pages. $29.95.
The New York Law
Journal
Friday, October 8, 1999
Many attorneys specialize in an area of practice but,
due to constraints of time or oth.er factors, know only a
rudimentary history of that area, usually consisting of
legislation and case law. This is akin to accepting the
state of affairs in a given field as though it were
produced in a vacuum, bereft of social or cultural
influence. Education in the social history of a given area
of practice not only gives the individual attorney a depth
of understanding about the reasoning behind particular
procedures and standards for determination, but also gives
him or her the power to either justify or challenge those
standards.
In Framing American Divorce: From the Revolutionary
Generation to the Victorians, Norma Basch, a professor of
history at Rutgers University, sets out to delineate the
history of divorce in the United States and parallel its
proliferation with the increased visibility and power of
the American woman. The book focuses on the various roles
and public portrayals of women in American society. The
author explains how the very times these women lived
through, particularly the Revolutionary and Civil Wars,
enabled them to move outside their gender- based cultural
role and take some control over their lives, if even in
the most basic of ways. To call this a feminist text,
however, would do a disservice both to the nature of the
work and quality of the author's scholarship.
The book is divided into three parts: the rules,
mediations and representations. "The Rules" explores the
effect of American politics during the Revolutionary War,
which laid the foundation for a common notion of
independence. That notion influenced both the nation and
the individual, and this basis for national identity
clashed and combined with the legal and religious
traditions brought over from Europe. Here Professor Basch
lays the groundwork for her theories of social evolution
from cultural revolution. "Mediations" examines the legal
process of divorce in New York and Indiana, as examples of
legal restrictiveness and permissiveness, respectively.
The author shows how women and men both adapted to and
shaped the process itself, for where the legal remedies
were lacking, social remedies often prevailed, and the
legislature was forced to create more accessible
solutions. The development of legal standards and the new
role of women were directly created, as opposed to merely
influenced, by the conflation of old legal and social
beliefs with the power and energy of a new nation.
"Representations" focuses on popular notions and
representations of divorce and how individual cases
captured the public's attention as both displays of social
and legal process and vicarious escape. Here the reader
has the advantage of looking at the socialization of
divorce and the popular interest in those cases, both from
a modern standpoint and on the timeline of political and
cultural development.
Professor Basch expores the public's view of divorce
changed on a cultural scale-from an evil to be avoided to
a practical solution-and how the perception of the role of
women changed at the same time. This came from the
challenges that American society as a whole faced, through
war, through the rigors of frontier life and through the
popular notion of self-determination as it conflicted with
the dictates of religion. At the same time, she often uses
well-known divorce cases of the day to demonstrate how
women were perceived by the fledgling justice system and
by the new American society. Divorce moved on a wides
cultural continuum from secrecy and shame to popular (and
populist) entertainment, spawning both a trade in trial
pamphlets and a national obsession with scandalous court
cases, which extends to the present day.
The book presents a thorough, well-documented
exploration of America's legal past and sets forth a
careful explanation of why society progressed in the speed
and manner that it did. Nothing is presented as theory,
however; the author sees the change less as a matter of
perception from a particular standpoint and more as a
timeline of progress, leading to the inevitable, ever-
nearer gender equality we have today.
This is a strange hybrid of text and short story, as it
delves into the popular case histories, which the author
uses as dramatic displays of popular perception, while
explaining every action therein as stemming from its
proper cultural designation. This is not, however, a quick
read, and at times the author becomes so concerned with
explaining the social influences of the day that the
reader may get lost.
Framing American Divorce is thick with information
concerning the day-to-day lives of people, both
individually and as participants in the new governmental
model. It examines the internal conflict between a
national ideal of personal freedom and a history of
religiousness and social conservativism. Although it is
much like a textbook and often reads that way, the reader
is continually rewarded with information and insight, and
this book serves as a very useful historical resource for
anyone involved in either matrimonial law or women's
issues. The author is talented enough to transport the
reader back to the courtrooms, legislatures and homes of
the 18th and 19th centuries, and ultimately, this is what
makes the text rather enjoyable. Professor Basch is a
thoughtful, careful, thorough scholar, and her work often
leads the reader through her theories without the
awareness of having already accepted her #12;
propositions. Upon scrutiny, the reader is hard put to
object. Perhaps, then, that is the very best that can be
said about any legal text. This book closely examines
American political and social history and yet, along the
way, the conflict is reduced to academics. That may be so
because the end result is already before us, but Professor
Basch presents a credible explanation for how we got here.
Bari B. Brandes is a partner at The Law Firm of Joel R.
Brandes PC in Garden City and New York City, and
collaborates with Joel R. Brandes on the 13- volume
treatise Law and the Family New York (Westgroup) and a
monthly column for this newspaper.
