Linguistic meaning, nonlinguistic "expression," and the multiple variants of expressivism: a reply to Professors Anderson and Pildes.

• Author: Adler, Matthew D.
• Position: Response to article by Elizabeth S. Anderson and Richard H. Pildes in this issue, p. 1503

The term "expression" is profoundly ambiguous, and so, too, is the phrase "expressive theory of law." An "expressive theory of law" might mean (1) a theory of law focused on the linguistic meaning of legal decisions; (2) a theory of law focused on the Gricean nonlinguistic meaning of legal decisions; (3) a theory of law focused on the cultural impact of legal decisions; or (4) a theory of law focused on the attitudes "expressed" by legal decisions, where a decision can "express" a given attitude without possessing a linguistic meaning, a Gricean nonlinguistic meaning, or a cultural impact.(1) My article, Expressive Theories of Law: A Skeptical Overview,(2) explicated and criticized "expressive theories of law" in the first sense just described. I was quite careful to say that I would not be discussing "expressive theories of law" understood in any other sense--that theories focused on some feature of legal decisions other than linguistic meaning lay outside the scope of my scholarly inquiry, and that my article was not intended either to challenge or to endorse such theories.(3)

I am therefore in agreement with Professors Anderson and Pildes when they state that "[t]o a large extent, the target Adler attacks is not one we wish to defend."(4) Anderson and Pildes go on to suggest that "[g]iven our fundamentally different understanding of the concept of expression," they and I have failed to join issue.(5) I concur with the suggestion: we have failed to join issue. General Restatement is an impressive contribution to the scholarly literature, and one that will materially advance the debate about "expressive theories of law." But this work is not so much a rebuttal of my own article as a confirmation of that article, or at least immaterial to my article. I argue that the linguistic meaning of a legal official's action is not foundationally relevant to the moral status of that action; Anderson and Pildes do not claim to the contrary (with one possible exception, to be discussed below), and instead argue that the attitudes "expressed" by the action in some nonlinguistic sense are foundationally relevant to its moral status.

Anderson and Pildes also say that "Adler clearly would continue to be troubled by expressive [nonlinguistic] theories of law."(6) This is incorrect. I did not analyze or criticize nonlinguistic theories in Skeptical Overview, and I will not do so here. I do not have time or space for that in this brief Reply, and, in any event, criticizing the nonlinguistic theory presented by Anderson and Pildes in General Restatement would not serve the purpose of this Reply. My purpose, here, is to rehabilitate Skeptical Overview from any damage done by the Anderson and Pildes contribution. Since we mean different things by "expressive theories of law," the damage done (again, with one possible exception, to be discussed below) is nil.

Lest the reader suspect me of tendentiousness, let me be a bit more precise. I will call "expression" in the Adler sense M-expression and "expression" in the Anderson/Pildes sense ER-expression.(7) An action is M-expressive if it possesses linguistic meaning--more precisely, if it possesses sentence meaning or speaker's meaning, concepts I analyzed at length in Skeptical Overview.(8) As I further explained in the article, an M-expressive or linguistic-meaning theory of law is a theory such that the set of moral factors determining the status of a legal official's action includes at least one M-expressive factor. An M-expressive factor is a moral factor such that actions lacking M-expressive meaning, i.e., linguistic meaning, must fare identically with respect to that factor.(9)

Anderson and Pildes state quite clearly that an action can be ER-expressive without being M-expressive. As they put it, "The concept of expression should be contrasted with causation, on the one hand, and communication [linguistic meaning], on the other."(10) Again:

Expression must also be distinguished from communication. To express a mental state requires only that one manifest it in speech or action .... The shoplifter may express her intention to get away with stealing a purse in her furtive glances. But she hardly intends to communicate this intention.(11) Once more:

[Our] account of expressive theories of law, morality, and practical reason is concerned with the attitudes and ideas that individuals and institutions express, not just with the attitudes and ideas that they communicate. To express a state of mind is, among other things, to manifest it in action. To communicate a state of mind is to act with the intention of inducing others to recognize that state of mind by recognizing that very communicative intention. Communicative acts are only a small subset of all expressive acts.(12) One might object that these particular quotations rule out an equivalence between ER-expression and speaker's meaning, but not the (possible) equivalence between ER-expression and linguistic meaning, i.e., speaker's meaning or sentence meaning. However, I see nothing in General Restatement to suggest that an act of ER-expression must possess a sentence meaning if it lacks a speaker's meaning, and plenty to suggest that Anderson and Pildes deny an equivalence between ER-expression and "communication" (the term they use for what I am calling "linguistic meaning"), whether understood as the disjunct of speaker's meaning and sentence meaning or in some other way.(13) For example, the furtive act of shoplifting they describe(14) is not linguistically meaningful ("communicative") in any way. The actor does not intend to cause some effect in the viewer by the viewer's recognition of that very intention (speaker's meaning), the actor is not invoking a convention for performing speech-acts (sentence meaning), and the act would not be seen as "communicative" pursuant to the theory of linguistic meaning sketched out at the end of General Restatement.(15)

In short, an act can be ER-expressive without being M-expressive. Conversely, it seems, an act can be M-expressive without being ER-expressive. The linguistically meaningful action of uttering "I promise to buy the car" need not express any attitude (although it may necessarily presuppose various attitudes, such as beliefs about the car's current ownership or the speaker's preference for the car over some alternatives). Similarly, the linguistically meaningful action of uttering "pass the salt" is a directive rather than a descriptive utterance,(16) and therefore need not express a belief on the speaker's part or, it seems, any other attitude of hers. Even if this is untrue--even if every M-expression is an ER-expression--it is not true that every ER-expression is an M-expression. Therefore, the two categories are nonequivalent.

At the risk of repetition, let me restate this point in less technical terms. My article is focused upon the linguistic meaning of governmental action. Anderson and Pildes are focused upon "expression" in some sense other than linguistic meaning. A governmental action is "expressive," in my sense, if it possesses linguistic meaning. A governmental action will be "expressive," in the Anderson/Pildes sense, even if it lacks linguistic meaning, as long as it meets various other conditions they describe for "expressing" an attitude. (For example, an action that lacks linguistic meaning will still "express" an attitude in the Anderson/Pildes sense if it is motivated by the attitude, or if the attitude is in some way recognizable in the action.)(17) For short, I call "expression" in my sense M-expression, and "expression" in the Anderson/Pildes sense ER-expression. It is arguable that some governmental actions are M-expressive but not ER-expressive; and, in any event, some governmental actions are ER-expressive without being M-expressive. Anderson and Pildes quite clearly avow the latter proposition.

Relatedly, an ER-expressive theory of law is not necessarily an M-expressive theory of law. (This will be true as long as some ER-expressive actions are not M-expressive, even if all M-expressive actions are ER-expressive.) An ER-expressive theory of law is a theory such that the moral factors determining the moral status of a legal official's action include at least one ER-expressive factor, where an ER-expressive factor is a factor such that actions lacking ER-meaning must fare identically with respect to that factor. Clearly, an ER-expressive factor is not an M-expressive factor.(18) For example, a factor that prohibits persons from ER-expressing "contempt" can be infringed by an action that lacks linguistic meaning but still ER-expresses contempt--because the actor was in fact animated by an attitude of contempt, or because he was not thus animated but he nonetheless (negligently) performed an action that is properly "interpreted" or "recognized"(19) as contemptuous. The same is generally true of factors that prohibit or require persons to ER-express various attitudes: linguistically meaningless actions are not guaranteed to fare the same with respect to such factors, since some linguistically meaningless actions will infringe them while others will not, and therefore they are not M-expressive.

It follows that an ER-expressive theory need not be an M-expressive theory. More precisely, (1) an ER-expressive theory that contains only ER-expressive factors cannot be an M-expressive theory (since ER-factors are not M-factors), and (2) an ER-expressive theory that is not exclusively composed of ER-expressive factors may be an M-expressive theory, but need not be. (This second kind of ER-expressive theory will be an M-expressive theory if it contains at least one M-expressive factor along with its ER-expressive factors, but it could also contain some ER-expressive factors, some nonexpressive factors, and no M-expressive factors and thus fail to be an M-expressive theory.) Let us call the first kind of ER-expressive theory a robust ER-expressive...