About The Workshop
SW09: The Expressive Function of Law
Convenor: Alberto Pino-Emhart (Universidad Adolfo Ibáñez, Chile)
Contact: alberto.pino@uai.cl
Confirmed speakers:
Sergio Gamonal C. (Universidad Adolfo Ibañez, Chile)
Tarun Khaitan (LSE, UK)
Fabio Macioce (LUMSA University, Rome): The Expressive Function of Constitutional Drafting
Esteban Pereira Fredes (Universidad Adolfo Ibañez, Chile)
Alberto Pino-Emhart (Universidad Adolfo Ibañez, Chile)
Andrea Pinto Bustos (Universidad Adolfo Ibañez, Chile)
Karla Ressler (Catholic University of Croatia)
Vanja-Ivan Saviç (Catholic University of Croatia)
Katarzyna Wiśniewska (Jagiellonian University, Poland)
The expressiveness or the expressive function is not a completely unknown
phenomenon in law in general (Sunstein, 1996; Anderson & Pildes, 2000; Adler,
2000), but there is still much to explore in different areas of law. In the specific
context of criminal law, the idea that criminal punishment serves an expressive
function is familiar. Feinberg (1970: 98) introduced this concept famously, stating
that the difference between punishment and other sanctions like fines is that it
constitutes ‘a conventional device for the expression of attitudes of resentment and
indignation, and of judgments of disapproval and reprobation, on the part of either
of the punishing authority himself or of those ‘in whose name’ the punishment is
inflicted’. More recently, Duff defends a communicative theory of punishment,
‘according to which the distinctive justifying aim of punishment is to achieve a twoway
communication between polity and offender’ (Duff, 2024: 90).
But is it possible to expand this type of analysis to other areas of law? For instance,
in tort law, Hershovitz argues that courts establish that the defendant committed an
unlawful act against the victim. He argues that, unlike criminal law, tort law can
achieve this goal without the need to make the perpetrator suffer, redistributing the
losses sustained by the victim to the plaintiff through the compensation mechanism
(Hershovitz, 2017: 31). Relatedly, Khaitan holds that the notion of dignity is best
understood as an ‘expressive norm: whether an act disrespects someone’s dignity
depends on the meaning that such act expresses’ (Khaitan, 2012: 4), and Crawford
argues that the concept of possession can be explained in terms of an expressive
function: ‘Certain acts qualify as “possession” because, whether they amount to
actual control, they send the recognised signal by which someone communicates
his intention to claim a stake in some thing’ (Crawford, 2020: 63).
Preliminarily, it is possible to identify the following actors expressing messages
through law in general:
– Courts. Courts dealing with disputes are typically the ones that deploy the
expressive function, mainly through their reasoning and judgments.
– The parties. In a less obvious sense, the parties in litigation can also play an
expressive role, especially in extrajudicial contexts or ADR mechanisms. In
more public interest cases, the parties even send messages to the public
through the press and social media.
– Lawyers and other participants in procedures. Secondarily but significantly,
lawyers representing parties in tort lawsuits can express relevant messages,
either in their written submissions or during hearings. The same can be said
for other individuals who typically participate in these lawsuits, such as
witnesses who also communicate messages either to the victim or the public.
The workshop is open to receive proposals related to the general idea of an
expressive function of law, or how the expressive function can be identified in
specific areas of the law.
References
ADLER, Mathew D. (2000). ‘Expressive Theories of Law: A Skeptical Overview’, University
of Pennsylvania Law Review, Vol. 148, N° 5, pp. 1363-1501.
ANDERSON, Elizabeth S. & PILDES, Richard H. (2000). ‘Expressive Theories of Law: A
General Restatement’, University of Pennsylvania Law Review, Vol. 148, N° 5, pp. 1503-
1575.
CRAWFORD, J.R. Michael (2020). An Expressive Theory of Possession, Hart Publishing.
DUFF, Antony (2024). ‘Communicative Theory’, in RYBERG, Jasper (ed.), The Oxford
Handbook of the Philosophy of Punishment, Oxford University Press, pp. 90-112.
FEINBERG, Joel (1970). ‘The Expressive Function of Punishment’, in his Doing and
Deserving. Essays in the Theory of Responsibility, Princeton University Press, pp. 95-
118.
HERSHOVITZ, Scott (2017). ‘Treating Wrongs as Wrongs: An Expressive Argument for Tort
Law’, Journal of Tort Law, Vol. 10, N° 2, pp. 405-447.
KHAITAN, Tarunabh (2012). ‘Dignity as an Expressive Norm: Neither Vacuous nor a
Panacea’, Oxford Journal of Legal Studies, Vol. 32, Nº 1, pp. 1-19.
SUNSTEIN, Cass (1996). ‘On the Expressive Function of Law’, University of Pennsylvania
Law Review, Vol. 144, pp. 2021-2053.
SW09: The Expressive Function of Law
Convenor: Alberto Pino-Emhart (Universidad Adolfo Ibáñez, Chile)
Contact: alberto.pino@uai.cl
