On the expressive function of law.

• Jurisdiction: United States
• Date: 01 May 1996
• Author: Sunstein, Cass R.

If I had known that not a single lunch counter would open as a result

of my action I could not have done differently than I did. If I had known

violence would result, I could not have done differently than I did. I am

thankful for the sit-ins if for no other reason than that they provided me

with an opportunity for making a slogan into a reality, by turning a

decision into an action. It seems to me that this is what life is all about.

--Sandra Cason.(1)

We are all Expressionists part of the time. Sometimes we just want to

scream loudly at injustice, or to stand up and be counted. These are noble

motives, but any serious revolutionist must often deprive himself of the

pleasures of self-expression. He must judge his actions by their ultimate

effects on institutions.

--Herbert Simon.(2)

Introduction

Actions are expressive; they carry meanings.(3) This is true for nearly everything we do, from the most mundane to the most significant. For example, a lawyer who wears a loud tie to court will be signalling something distinctive about his self-conception and his attitude toward others; so too with a law professor who teaches in blue jeans; so too with a student who comes to class in a business suit. What can be said for nonverbal acts applies to purely verbal statements as well. A bank president who uses the terms "Miss" and "Mrs.," or who refers to African Americans as "Negroes," will be showing a wide range of things about his attitudes on matters of gender and race. So too with a Southern politician who uses the terms "Ms." and "African American..

In these and other cases, what the agent will be communicating, or be taken to mean, may or may not have a great deal to do with his particular intentions. In this sense, the meanings of actions are not fully within the agent's control. Indeed, some agents may not even be aware of the relevant meanings. Consider a foreigner whose very foreignness is often signalled by obliviousness to the social meanings of his actions. What he says may be very different from what he means.

The social meanings of actions are very much a function of existing social norms. When a social norm tells people not to smoke in public places, the social meaning of smoking is obtuseness, discourtesy, or worse. When a social norm requires people to dress casually for dinner, formal attire "means" something bad, like a desire to seem superior or a manifestation of an odd social rigidity. And when social norms change, social meaning changes too. Thus the social meanings of lighting up a cigarette, or engaging in an act of sexual harassment, or using a condom, or refusing to eat meat, are very different in 1996 from what they were in 1966, because of dramatic shifts in underlying norms.

What can be said for actions can also be said for law. Many people support law because of the statements made by law, and disagreements about law are frequently debates over the expressive content of law. Much of the debate over school segregation, for example, was also a debate about the meaning of laws calling for segregation. Plessy v. Ferguson(4) asserted that such laws did not "mean" black inferiority;(5) Brown v. Board of Education(6) tried to respond to this assertion with empirical work suggesting the contrary.(7) Or, consider debates over capital punishment. Many people who oppose capital punishment would be unlikely to shift their position even if evidence were to show that capital punishment does have a deterrent effect. They are concerned about the expressive content of capital punishment, not about its ineffectiveness as a deterrent (or about other nonexpressive grounds for punishment).(8) And many people who endorse capital punishment would not be much moved by evidence that capital punishment does not deter people from committing crimes. Their primary concern is the symbolic or expressive content of the law, not aggregate murder rates.(9)

Very recently, the enormously lengthy and heated debate over flag burning has been permeated by expressive concerns. If we ask whether the debate is about how best to deter flag burning, we will find the debate unintelligible. Few people have burned the American flag in recent years, and it is reasonable to suppose that a constitutional amendment making it possible to criminalize flag burning would have among its principal consequences a dramatic increase in annual acts of flag burning. In fact, adopting a constitutional amendment may be the best possible way to promote the incidence of flag burning. In these circumstances it seems clear that those who support the amendment are motivated not so much by consequences as by expressive concerns.(10) They appear to want to make a statement about the venality of the act of flag burning, perhaps in order to affect social norms, perhaps because they think that making the statement is intrinsically good.

Much of the contemporary debate over the regulation of hate speech is similar. It is above all about the social meaning of such regulations. Do such regulations "mean" that victims of hate speech require special paternalistic protections, are weak and thin-skinned, and unable to take care of themselves? Or do they "mean" that bigotry is utterly unacceptable in a liberal society? Debates of this kind could not plausibly be focused on consequences, for the stakes are relatively low and thus cannot justify the amount of time and energy devoted to the issue. In this way, debates over flag burning and debates over hate speech have a great deal in common; they are expressive in character.

Consider, too, the subject of risk regulation. In environmental protection, public debate is often focused on the perceived social meaning of law. Thus the Endangered Species Act has a special salience as a symbol of a certain conception of the relationship between human beings and their environment, and emissions trading systems are frequently challenged because they are said to "make a statement. that reflects an inappropriate valuation of the environment.(11) In the same way, mandatory recycling (as opposed to curbside charges, which seem far better from an economic standpoint(12)) may well receive public support on expressive grounds. In the legal profession, the same may also be true of mandatory pro bono work (as opposed to compulsory donations from lawyers who refuse to do such work).(13)

In this Article I explore the expressive function of law-the function of law in 4making statements" as opposed to controlling behavior directly.(14) I do so by focusing on the particular issue of how legal "statements" might be designed to change social norms.(15) I catalogue a range of possible (ant in my view legitimate) efforts to alter norms through legal expressions about appropriate evaluative attitudes. I also argue that the expressive function of law makes most sense in connection with efforts to change norms and that if legal statements produce bad consequences, they should not be enacted even if they seem reasonable or noble. Empirical questions loom throughout, and I do offer several empirical claims; but my goal is normative as well as descriptive or positive.(16)

This Article is divided into seven parts. Part I offers some definitional notes. Part II discusses the use of legal "statements" as a means of correcting social norms that all or most people disapprove. Part III deals with risk-taking behavior. Part IV explores the use of law to fortify norms involving the appropriate use of money. Part V discusses issues of equality. Part VI qualifies the basic argument. It discusses the relationship between the expressive function of law and the issue of consequences; it also explores constraints on the use of law to express judgments about appropriate values.

1. Definitional Notes

   At the outset it is important to say that we might understand the expressive function of law in two different ways. First, and most straightforwardly, the law's "statement" about, for example, the impropriety of monetary exchanges may be designed to affect social norms and in that way ultimately to affect both judgments and behavior. On this view, an expressive approach to law depends on an assessment of social consequences; certain expressions are favored because they will (ultimately) have good consequences. Here there is a prediction about the facts: an appropriately framed law may influence social norms and push them in the right direction. For example, if the law mandates recycling, perhaps it will affect social norms about the environment in a way that is different from (and better than) the way curbside charges might affect norms. Or if the law wrongly treats something--let us suppose reproductive capacities--as a commodity, social norms may be affected in a troublesome way.

   Sometimes the claim that the law affects norms is plausible. Prevailing norms, like preferences and beliefs, are not a pre-social given but a product of a complex set of social forces,(17) possibly including law.(18) Laws designed to produce changes in norms will be my focus here. But sometimes people support a law, not because of its effects on norms, but because they believe that it is intrinsically valuable for the relevant "statement" to be made.(19) And sometimes law will have little or no effect on social norms. Society is filled with legal provisions allowing market exchanges of goods and services--like pets and babysitting, for example--that are not seen as mere commodities but are valued for reasons other than their use. The question, therefore, remains whether the statement will have the claimed effect on social norms. It is fully plausible to say that, although a law that permits prostitution reflects an inappropriate valuation of sexuality, any adverse effect of the law on social norms is so small as to be an implausible basis for objection.

   Thus a second understanding of the expressive function of law does not concern itself with effects on norms.(20) Instead, its...