Expressive Theories of Law: A General Restatement

TLDR

Expressive conceptions of practical reason, morality, and law are gaining increasing currency. The article offers the first general statement of expressivism in law and morality, outlining two themes: defining how actions express values and assessing whether collective agents can be attributed expressive characteristics. It distinguishes expression from communication, develops a concept of collective agency to hold such agents responsible for expressive dimensions, and illustrates the approach with constitutional law examples. The expressivist perspective clarifies much of current moral and legal evaluation and responds to recent criticisms of expressive theories of law and morality.

Abstract

Expressive conceptions of practical reason, morality, and law are gaining increasing currency. This article provides the first general statement of the aims and features of expressivism in law and morality. Two central themes structure the analysis. First, what precisely does it mean for action, either of individuals or collectives, such as democratic bodies, to express values? On this point, we distinguish the concept of expression from the narrower concept of communication; actions can express values, attitudes, and purposes whether or not the actor intends to communicate any specific proposition. Second, even if it is appropriate to consider the expressive dimensions of individual action, for both practical and moral reasoning, does it make sense to attribute expressive characteristics to collective agents, such as the State? On this point, we develop a concept of collective agency that justifies holding such agents responsible for the expressive dimensions of their actions. Much of our existing moral and legal evaluative practices are best understood, we claim, through the kind of expressivist perspective developed here. We illustrate this claim with examples from Constitutional Law, including the areas of federalism, interstate relations, equality, and the establishment clause. We also respond to recent critics of expressivism who have raised important challenges to the principles of expressive theories of law and morality.