SOCIETÀ ITALIANA DI DIRITTO ED ECONOMIA
Francesco Ferraro (University of Milan)
Expressive theories of law focus on the “symbolic” aspect of official action into the legal system, namely, on the way judicial, legislative, and other legal decisions are meaningful in the sense of “sending a message”. Furthermore, such theories hold that this aspect should count in the evaluation of the law, as a distinct feature to be taken into account besides law’s more direct causal outputs (i.e. the effects of legal provisions determined by their being complied with by citizens and officials). Expressivism in law has been applied mainly in the analysis of criminal punishment (focusing on “shaming” and the moral condemnation symbolized by imprisonment) and in U.S. constitutional doctrine (with the elaboration of the concept of “expressive harm” to rights and with expressive interpretations of concepts like that of governmental endorsement, in order to assess the violation of provisions such as the Establishment Clause). However, many other applications of this strand of thought in other areas of the law seem plausible, for instance in marriage laws. Expressivism also highlights the interaction between the law and social norms, both in the sense of the law’s expression of societal values and in that of its contribution to the shaping of social norms.
Starting at the end of the last century, economic analysis of law has tried to provide accounts for the “symbolic” meaning of actions and laws, by applying “signaling theory” as a version of rational-choice theory: in “signaling games” decisions are made and actions performed in order to signal loyalty and to gain other people’s trust. The government can act as a “norm entrepreneur” in establishing new symbols or ascribing symbolic meanings, thereby constructing new signals. The law has both “behavioral” effects (it influences conducts) and “hermeneutic” effects (it changes the people’s understanding of the behavior it influences, e.g. by affecting their beliefs regarding what kind of person performs a certain action). Moreover, legislative decisions and other governmental actions are interpreted symbolically with reference to already established signals. The function of the signaling game is to separate “cooperators” from “cheaters”, thereby ensuring cooperation: for instance, those who respect the flag (the “patriots”) are seen as trustworthy, while those who do not are avoided as untrustworthy.
While approaches of this kind capture important aspects of the expressive functions of law, I will argue that they fail to account for purely expressive behavior in legislative and governmental decisions: that is, behavior purely aimed at symbolizing values, principles, etc. and with no further purpose than expression as an end in itself. Such behavior is not irrational, but is rather guided by value-oriented rationality. I will also argue that, to capture this aspect of the expressive functions of law, economic analysis of law would be forced to resort to arguments based on preferences, which it usually eschews as these are considered too difficult to analyze.