Expressive Theories of Law: A Skeptical Overview

Abstract

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 paper attempts to provide a precise conceptualization of an "expressive theory of law." On virtually any moral theory, the meaning of a legal official's action might have moral significance. (For example, within a utilitarian theory, the meaning of official action might affect overall well-being.) What, then, is the special significance that an "expressive theory of law" attributes to legal meaning? After addressing such conceptual and definitional problems, this paper 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.