Expressive theories of law: a skeptical overview.

• Author: Adler, Matthew D.

INTRODUCTION

Can law be "symbolic," "expressive," or "meaningful"? Can it "send a message"? And, if so, should law be evaluated in terms of what it "symbolizes," "expresses," or "means"? Does the "meaning" of law bear upon its moral rightness, goodness, or legitimacy?

An "expressive" theory of law gives affirmative answers to these questions. Such a theory claims that the action of a legal official or official body can indeed be meaningful, and that the meaning thus attached to an official action is relevant to, if not determinative of, the moral status of that action. Yet this formulation is only preliminary; it needs to be further developed. For what is the meaning, here, of "meaningful"? Is law "meaningful" in the way that language is meaningful, or in some other way, such as the way that dark clouds "mean" rain?(1) And how robust a connection between the meaning of an official action (whatever precisely that entails) and the moral rightness, goodness, or legitimacy of that action must a moral theory posit, for that theory to count as "expressive"? For example, a preference-utilitarian will happily concede that if some legal actor's saying X will lead to the highest degree of preference satisfaction overall, then that legal actor is under a moral obligation to say X. This hardly implies that the preference-utilitarian holds an "expressive" theory of law; what government says has only a contingent, and normally only a causal, connection with the satisfaction of preferences.(2)

In this Article, I try to clarify these conceptual issues. What, precisely, is an expressive theory of law? I then turn to the substantive question: Are expressive theories (thus clarified) persuasive? The answer, I will argue, is that they are not.

What motivates this Article is the recent popularity of expressive theories (or at least theories described as "expressive" by their proponents) within legal scholarship. I have in mind, especially, the work of Professors Richard Pildes, Dan Kahan, and Cass Sunstein. Professor Pildes has proposed an expressive theory of voting rights law in a frequently cited 1993 article about the Supreme Court's decision in Shaw v. Reno(3) and in several follow-up articles.(4) Pildes offers the following defense of Shaw, which invalidated a voting district that was drawn to increase black voting strength and that had a geographically "bizarre"(5) shape:

Government cannot redistrict in a way that conveys the social impression that race consciousness has overridden all other, traditionally relevant redistricting values. In the Court's view, certain districts whose appearance is exceptionally "bizarre" and "irregular" suggest that impression. Plaintiffs need not establish that they suffer material harm, in the sense of vote dilution, from such a district. Shaw is fundamentally concerned with expressive harms: the social messages government conveys when race concerns appear to submerge all other legitimate redistricting values.(6) Nor is Pildes merely an election law specialist. His views about voting rights are merely one component of a larger expressive theory, one that covers a wide range of constitutional provisions. These broader views are presented in a recent article, in which Pildes asserts the following:

The expressive dimension of governmental action plays a central, but underappreciated role in constitutional law. This is not a technical point with only obscure significance but a central aspect of ongoing constitutional practice with pervasive implications for the way both defenders and critics understand constitutionalism.... .... [T]he [nonexpressive] view of rights as trumps fails to recognize the role of expressive harms in constitutional law. On the atomistic conception of rights, only injuries to individual interests in autonomy, dignity, self-expression, freedom of conscience, and the like, can generate constitutionally cognizable harms. But American constitutional law provides a more expansive conception of harm because it is more attuned than conventional rights theory appreciates to the social meanings of state action. Expressive harms, no less than material harms to these kind of individual interests, ground constitutional doctrine in many areas.(7) Pildes has advanced equally general claims about the expressive cast of governmental regulation--claims that will be described and criticized at some length below.(8)

Professor Kahan has not yet offered an expressive theory of law comparable in breadth to Pildes'. What Kahan has done, with much vigor and success, is to develop and defend an expressivist approach to a specific legal institution of great practical importance and scholarly interest--the institution of criminal punishment. In What Do Alternative Sanctions Mean?(9)--an article that, like Pildes' work on expressivism, has had a very high profile within the legal academy and has gained a fair measure of extra-academic attention as well(10)--Kahan argues that standard proposals to replace imprisonment with more cheaply administered sanctions, such as fines or community service, are politically unpalatable and normatively unattractive because they ignore the expressive dimension of punishment. Imprisonment symbolizes moral condemnation,(11) while the message communicated by these alternative sanctions is far less clearly condemnatory;(12) further, a condemnatory message is, Kahan claims, an appropriate response to criminal wrongdoing on both deterrent and retributive theories of punishment.(13) Thus, where imprisonment is too expensive, the state should replace it with a cheaper but expressively apt sanction, specifically the sanction of "shaming":

Punishment is not just a way to make offenders suffer; it is a special social convention that signifies moral condemnation. Not all modes of imposing suffering express condemnation or express it in the same way. The message of condemnation is very clear when society deprives an offender of his liberty. But when it merely fines him for the same act [or imposes a penalty of community service], the message is likely to be different: you may do what you have done, but you must pay for the privilege.... This mismatch between the suffering that a sanction imposes and the meaning that it has for society is what makes alternative sanctions politically unacceptable. .... [By contrast, s]haming penalties unambiguously express condemnation and are a feasible alternative to imprisonment for many offenses.(14) Kahan has pursued this defense of "shaming," and the underlying idea that the state's response to criminal wrongdoing should communicate a linguistic message (i.e., the message of condemnation), in a number of subsequent articles.(15)

Professor Sunstein's endorsement of expressivism is more, tentative than that of Pildes or Kahan. Sunstein's original interest in this subject stems, it seems, from his work on "incommensurability."(16) To say that government's choices are incommensurable means, roughly, that their comparative worth cannot be measured on a single scale--in particular, on a utilitarian scale or a cost-benefit scale.(17) For example: How can we compare, in dollar terms, the choice between preserving a pristine wilderness area and opening it to commercial development? How can we compare, in terms of "utils," the choice between a free market in babies and a prohibition on surrogacy and baby-selling? One reason why governmental choices of this kind might be incommensurable on a dollar or utilitarian scale--if indeed they are--is that such scales ignore the expressive considerations bearing upon these choices. This is what Sunstein proposed:

A society might identify the kind of valuation to which it is committed and insist on that kind, even if the consequences of the insistence are obscure or unknown. A society might, for example, insist on an antidiscrimination law for expressive reasons even if it does not know whether the law actually helps members of minority groups. A society might protect endangered species partly because it believes that the protection makes best sense of its self-understanding, by expressing an appropriate valuation of what it means for one species to eliminate another. A society might endorse or reject capital punishment because it wants to express a certain understanding of the appropriate course of action after one person has taken the life of another.(18) Sunstein advanced a similar claim in a joint article with Professor Pildes, defending an expressive theory of regulation.(19) More recently, in a 1996 piece entitled On the Expressive Function of Law, Sunstein backed away from the view that it is intrinsically important for government to express certain meanings, quite apart from the consequences of such expression:

[S]ome people appear to think that consequences are barely relevant, and that it is intrinsically problematic to "say," through law, that environmental amenities are ordinary goods with appropriate prices. Is this a good objection to emissions trading programs if (as we might suppose) such programs can save billions of dollars in return for the same degree of environmental protection? I do not believe [so].(20) On the other hand, Sunstein has continued to argue for the proposition that law's meaning can have significant, causal consequences, particularly in shaping social norms, and that legal officials must therefore attend to the statements communicated by the actions they perform.(21)

The work of Professors Pildes, Kahan, and Sunstein, just described, has given renewed salience and currency to expressive theories of law.(22) But it bears emphasis that their scholarship is simply the most recent contribution to a much older and larger body of scholarly writing about the symbolic cast of legal decisions. For example, students of the criminal law have long debated the expressive dimension of punishment. The famous legal philosopher Joel Feinberg, in a 1965 article entitled The...