Expressive theories of law: a general restatement.

AuthorAnderson, Elizabeth S.

INTRODUCTION

Expressive conceptions of practical reason, morality, and law are gaining increasing currency. At the most general level, expressive theories tell actors--whether individuals, associations, or the State--to act in ways that express appropriate attitudes toward various substantive values. In one well-known version, the State is required to express equal respect and concern toward citizens. Expressivists do not present this view as some radically new theory of morality and law. Instead, we claim that much of our existing practices of moral and legal evaluation are best understood through expressivist perspectives--but that the more perspicaciously we can grasp the expressive structure of action, the more we can improve our evaluative practices. Expressivism is thus an internal account of existing normative practices, but one with sufficient critical capacity to exert leverage over those practices and to indicate where they ought to be reformed.

This Article provides a more comprehensive account than has previously appeared of the aims and features of such theories. It begins with a general analysis of the nature of expression. Next, we show how expressive concerns figure into normative theories of individual conduct: what makes an action morally right depends on whether it expresses the appropriate valuations of (that is, attitudes toward) persons. From individual morality, we move to the expressive character of collective action. Against skeptical claims to the contrary, we argue that most of the purposes, beliefs, attitudes, intentions, and other mental states that individuals can have on their own can also be properly attributed to groups, including the State. With these general accounts of expression and collective action in place, we then seek to show the pervasively expressive character of much of the law. We concentrate on constitutional law to exemplify this character, for we cannot here apply expressive accounts to all the fields in which such accounts have been emerging, such as environmental policy or criminal punishment. But one of our central aims, here and elsewhere,(1) is to show that much of constitutional doctrine--ranging from structural issues, like the Dormant Commerce Clause and federalism, to more rights-oriented and equality issues, such as the Establishment Clause and Equal Protection--is best understood through the conception we develop of the expressive dimensions of state action.

Matthew Adler's article impressively synthesizes the different work on expressivism that has emerged in diverse fields of law.(2) His work also brings a much appreciated philosophical rigor to these issues. Adler's analysis of expressivism poses two central and difficult questions that serve as the framework for his critique. First, what does it mean for action to express values or attitudes? Is this the same as actors intending to communicate those values or attitudes? If not, what is the difference between expression and communication? And why should we care about expression in the precise sense that expressive theories invoke? On these related questions, we will argue that Adler's objections rest on a fundamental misunderstanding of the concept of expression and the role it plays in expressive theories of law and morality. Second, even if it makes sense at the level of individual morality to care about the attitudes individuals express toward each other through their actions, how can it make sense to worry about collective actors--particularly the democratic State--expressing values and attitudes? Can collective actors actually have mental states, such as attitudes, that we attribute to individuals? Is this some deep metaphysical confusion?

On this second important theme, this Article will define the circumstances under which it makes sense to attribute mental states to collective agents, such as the democratic State. We will also explore why the expression of these attitudes through state action is indeed a central focal point of constitutional law, as we believe it is and ought to be. Adler is right to raise these two central themes--the nature of expression and of collective agency--as crucial ones for expressivists to engage. But with a proper understanding of these crucial concepts in place, we will show why expressive theories of law are not prone to the kinds of critiques Adler makes.

  1. EXPRESSIVE THEORIES OF REASON AND ETHICS IN GENERAL

    1. The Concept of Expression

      "Expression" refers to the ways that an action or a statement (or any other vehicle of expression) manifests a state of mind. The state of mind can be cognitive--it can be a belief, idea, or theory. The characteristic vehicles for expressing such purely cognitive states are declarative sentences, which can be uttered in speech or writing. But people can also express their cognitive states in action. In burning the United States flag, antiwar protesters expressed the belief that United States involvement in the Vietnam war was wrong.(3)

      People can express other kinds of mental states besides beliefs, such as moods, emotions, attitudes, desires, intentions, and personality traits. They can do so not only through speech and instrumental action, but through gestures, tone of voice, posture, forms of art, and other ways. At the level of individual action, a shrug may express indifference; a whisper, reverence; a swagger, cockiness; a song, joy; a sneer, contempt. At the level of state action, as we will show, deliberative principles and policies can be appropriately interpreted as expressing official state beliefs and attitudes, such as hostility toward certain racial groups or approval of religion. Indeed, the law frequently treats state action as doing exactly this, as we will seek to demonstrate and justify.

      The relationship between states of mind and their expressions has three dimensions: ontological, epistemic, and normative.(4) First, expressions of mental states embody and realize those states. Second, expressions of mental states manifest those states: they cast them in a form that makes them recognizable as what they are. Third, expressive vehicles can do a better or worse job of expressing mental states. Let us consider each of these dimensions in more detail.

      Expressive mental states may be viewed as potentialities that can be realized in more than one expression. They are mere potentialities in the sense that they require expression to be fully realized. If a father never pays attention to his daughter's interests, and never takes those interests as reasons for him to help her and to avoid harming her, we say that he does not actually love her. But if, out of love for his daughter, he did take her interests as a reason to help her, then his helping would, in expressing his love, realize it or make it real. For any state of mind, there are many different ways of expressing it. A person expresses the same thought in thinking "I am warm" as in saying "Es ist mir warm." Either the English or the German expression can be said to embody the same thought. The expressive relation is therefore a relation of realization or embodiment.

      The expression of a mental state brings that state into the open, for oneself and potentially for others to recognize.(5) People recognize the mental state in its expression. This is an interpretive activity. To interpret what a statement means, we try to grasp what the speaker is saying. To interpret what an action means, we try to identify what the agent is doing. Deeds are identified, not by mere physical descriptions of bodily movement, but by the intentions that they express and that give them meaning. Interpretation is a matter of making sense of the speech or action in its context. Suppose an individual burns a piece of paper. What does this mean? If the paper is a draft card, and he burns it in the context of others doing the same thing at an antiwar rally, we understand his action to express outrage at the draft.(6)

      Finally, states of mind stand in a normative relation to whatever expresses them. We can evaluate any vehicle of expression, whether a statement or action, in terms of how well it expresses its mental states. A speech may express ideas poorly by being confused, disorganized, vague, ambiguous, or inarticulate. Conduct also may express intentions, emotions, and attitudes poorly--for example, by being clumsy, distracted, self-defeating, or ambivalent. A bumbling lover's infatuation may cause him to express his love in awkward ways that repel his beloved. Such incongruity between the mental state and its manifestations is the stuff of comedy--or, if the failure is serious enough, of tragedy.

      The concept of expression should be contrasted with causation, on the one hand, and communication, on the other. The expressive relation is not a causal relation between a mental state and that which expresses it. Not everything that expresses a state of mind is caused by that state of mind. Musicians can play music that expresses sadness, without feeling sad themselves. The music they play need not express their (or anyone's) sadness: the sadness is in the music itself. Similarly, lawmakers could pass a law that expresses contempt for blacks by denying them the right to vote, even if none of the lawmakers personally feel contempt for blacks and all are merely pandering to their white constituents. Conversely, not everything caused by a state of mind expresses that state of mind. The state of excitement causes some narcoleptics to fall asleep.(7) This does not make sleep an expression of excitement.

      Expression must also be distinguished from communication. To express a mental state requires only that one manifest it in speech or action. To communicate a mental state requires that one express it with the intent that others recognize that state by recognizing that very communicative intention. One can express a mental state without intending to communicate it. The shoplifter may...

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