APA Newsletters

Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and Law

Recent Law Review Articles of Interest
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"Expressive Theories of Law: A General Restatement,"

Elizabeth S. Anderson and Richard H. Pildes
148 University of Pennsylvania Law Review 1503-1575 (2000).

In response to Matthew D. Adler's "Expressive Theories of Law: A Skeptical Overview," University of Pennsylvania Law Review 148:1363-1501 (2000), Anderson and Pildes have written what they describe as "the first general, theoretical account of the aims and features of expressive theories of law, morality, and practical reason." An expressive theory of a domain is one which assigns primitive justificatory significance to the expressive dimensions of that domain. For example, an expressive theory of the equal-protection clause of the U.S. Constitution will nonreductively attend to the social meanings expressed by the racial lines drawn by the legislature. Racial segregation effected by "Jim Crow" enactments in the American South expressed disrespect for blacks, and this expression was wrongful wholly apart from the consequential impact it may have had, and wholly apart from any purported "vulgar deontological" stricture against drawing racial lines. Lines drawn in a way that expresses concern for a previously scorned group are to be treated differently.

An expressive theory is more general than a communicative theory, the Authors explain, and they avoid many of Adler's criticisms by invoking the distinction. A communicative theory would follow Gricean lines in assigning critical importance to a speaker's intending to induce a belief by causing an audience to recognize that very intention. The Authors point out that disrespect can be expressed without being communicated in the Gricean sense, and even without being commonly perceived as such. For example, the once-prevalent custom among businessmen of complimenting businesswomen (but not fellow businessmen) on their appearance was not intended to induce a belief or to be contemptuous; but such behavior expressed disrespect nonetheless because the custom rested upon and reinforced gender stereotypes which as an objective matter wrongly subordinate women.

Expressive theories are regulative, the Authors explain, in that they assign ineliminable importance to the actor's having the right reason for acting as she does. Unlike consequentialism, which assigns exclusive importance to outcomes, and unlike vulgar deontology, which assigns exclusive importance to means, expressive theories (without necessarily disparaging the importance of consequences or deontological constraints) insist upon the proper linkage between goals and means. Avoiding unpleasantness, for example, is a good reason to turn off the television, but not a good reason to avoid visiting one's bedridden mother. In the latter case, acting on such a reason would express disrespect, no matter how successfully one concealed one's reason for acting.

In translating expressive theory from the moral to the political realm, the Authors defend the intelligibility of the concepts of group expression and group intention, drawing on Margaret Gilbert's work on collective agency. The Authors define a notion of expressive harm in nonsubjective, nonconsequentialist terms, and explore several American constitutional doctrines (the religion clauses, "dormant" commerce clause, equal protection clause) where the idea of expressive harm seems best to explain the U.S. Supreme Court's jurisprudence. In his "Linguistic Meaning, Nonlinguistic 'Expression,' and Multiple Variants of Expressivism: A Reply to Professors Anderson and Pildes" University of Pennsylvania Law Review 148:1577-94 (2000), Adler characterizes the Authors' expressive theory as "novel, interesting, and ambitious," which-unlike linguistic theory that the Authors chose not to defend against Adler's attack-"now merits close scholarly scrutiny and debate."

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APA Newsletters

Spring 2001 Volume 00, Number 2

Spring 2001
Volume 00, Number 2