On the Expressive Function of Law

Abstract

In this Article I explore the expressive function of law - the function of law in "making statements" as opposed to controlling behavior directly. I do so by focusing on the particular issue of how legal "statements" might be designed to change social norms. I catalogue a range of possible (and 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 empirical claims; but my goal is normative as well as descriptive or positive.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.