Expressive Theories of Law: A Skeptical Overview
Posted: 11 Jul 2000
Date Written: 2000
An "expressive theory of law" is, very roughly, a theory that evaluates the actions of legal officials in light of what those actions mean, symbolize, or express. Expressive theories have long played a role in legal scholarship and, recently, have become quite prominent. Elizabeth Anderson, Robert Cooter, Dan Kahan, Larry Lessig, and Richard Pildes, among others, have all recently defended expressive theories (or at least theories that might be characterized as expressive). Expressive notions also play a part in judicial doctrine, particularly in the areas of the Establishment Clause and the Equal Protection Clause.
This article attempts to provide a precise conceptualization of an "expressive theory of law." On virtually any moral theory, the linguistic meaning of a legal official's action might have moral significance. (For example, within a utilitarian theory, the linguistic meaning of official action might affect overall well-being.) What, then, is the special significance that an "expressive theory of law" attributes to linguistic meaning? After addressing such conceptual and definitional problems, this article provides a critical overview of expressive theories. I focus first upon expressive theories of punishment, constitutional law, and regulation, and then set forth a general argument why expressive theories (as I have defined them) are unpersuasive.
The article is part of a scholarly exchange with Professors Elizabeth Anderson and Richard Pildes. In their own, substantial article, abstracted below, Anderson and Pildes criticize my article and defend expressivism. Elizabeth S. Anderson and Richard H. Pildes, "Expressive Theories of Law: A General Restatement," 148 University of Pennsylvania Law Review 1503 (2000). I then attempt to address their criticisms in a brief reply. Matthew D. Adler, "Linguistic Meaning, Nonlinguistic 'Expression,' and the Multiple Variants of Expressivism: A Response to Professors Anderson and Pildes," 148 University of Pennsylvania Law Review 1577 (2000).
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