Constitutive Reasons and Consequences of Expressive Norms

Abstract

In this article I engage with Tarunabh Khaitan’s scholarship on expressive norms. Khaitan argues that the expressive value of a legal speech-act is independent of its consequences. I query the analytical moves that inform this argument. Specifically, I show that:

(1) Khaitan’s account of the illocutionary force of a speech-act is a particular displacement of linguistic theory into constitutional philosophy;

(2) using Kazuo Ishiguro’s The Remains of the Day as a talking point, the focus on the illocutionary force of a legal expression can confound constitutive reasons that lend weight to such an expression; and

(3) the claim that expressive norms are consequence-independent is diluted once it becomes evident that such a claim is premised on epistemic problems rather than moral arguments.

Finally, I argue that to work towards a society characterized by non-humiliation, it pays to focus on the constitutive reasons and consequences of expressive norms.

Keywords: Consequentialism, Dignity, Epistemic Claims, Expressive Function, Non-Discrimination, Speech-Act Theory