Constitutive Reasons and Consequences of Expressive Norms

Abstract

In this article I engage with Tarunabh Khaitan’s scholarship on expressive norms. Khaitan argues that the expressive value of a legal speech-act is independent of its consequences. I query the analytical moves that inform this argument. Specifically, I show that (1) Khaitan’s account of the illocutionary force of a speech-act is a particular displacement of linguistic theory into constitutional philosophy; (2) using Kazuo Ishiguro’s The Remains of the Day as a talking point, the focus on the illocutionary force of a legal expression can confound constitutive reasons that lend weight to such an expression; and (3) the claim that expressive norms are consequence-independent is diluted once it becomes evident that such a claim is premised on epistemic problems rather than moral arguments. Finally, I argue that to work towards a society characterised by non-humiliation, it pays to focus on the constitutive reasons and consequences of expressive norms.

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Notes

  1. 1.

    See Symposium on The Expressive Dimension of Governmental Action: Philosophical and Legal Perspectives (2001) 60 Maryland Law Review 492.

  2. 2.

    Professor Khaitan is currently Professor of Public Law and Legal Theory at Oxford University.

  3. 3.

    Anderson and Pildes [3, p. 1527], cited in Khaitan [29, 4 fn 24].

  4. 4.

    The value on which all legal actions are premised per Hellman is that ‘we must matter equally to our government.’ Thus, her account is tethered to the value of non-discrimination, while the Anderson-Pildes framework is broader. The challenge is for a judge to ascertain whether a particular law or policy expresses this value; ‘hence meanings attributed to state actions will not be fully objective or social’ [20, p. 69].

  5. 5.

    Hence Smith:

    ‘Anderson and Pildes make no effort to show that a legislature or "the democratic State" could in fact satisfy the conditions that they have so carefully specified-the conditions, that is, of their "members [being] jointly committed to expressing [a particular meaning] as a body" -or that these groups could engage in the "successful conversational exchange" attributed to partners in hiking, cooking, and shoveling snow. Instead, they promptly retreat to a different (and all too familiar) position: that we often treat laws as if they reflected some such collective intention. Their rigorous "if and only if' quickly lapses into the licentious "as if."’ [61: 551].

  6. 6.

    ‘I also argue that the expressive function of law makes most sense in connection with efforts to change norms and if legal statements produce bad consequences, they should not be enacted even if they seem reasonable or noble’ [66, p. 2025].

  7. 7.

    Khaitan cites Anderson-Pildes and Sunstein sequentially when he develops his propositions [29, p. 4].

  8. 8.

    Ibid.

  9. 9.

    There is some doubt as to whether Austin preferred convention or intention as the central determinant of force of a speech-act. He does say that ‘force is determined by an accepted conventional procedure having a certain conventional effect’ Austin [7, p. 14]. But it is not clear whether he was referring to illocutionary force.

  10. 10.

    ‘Searle's view is flawed because the completion of the communicative act requires that the addressee understand what the speaker has said’ [3, p. 1572]. Searle does have an account of ‘collective intentionality’ that Anderson–Pildes does not engage with. Searle’s philosophical view in any event sharply diverges with Anderson–Pildes as it is not the product of cooperative behaviour but something that seems to be a ‘primitive phenomenon’ [58, pp. 24–26].

  11. 11.

    As Cooren has shown, this is a Habermasian ‘displacement’ in his reinterpretation of speech-act theory [11].

  12. 12.

    Searle says that constitutive rules define ‘new forms of behaviour,’ but this would be a confusing usage of ‘behaviour’ when we bring in mediators such as legal institutions into the mix. If speech-acts are performed by legal institutions, then it is their behaviour that we would be concerned about in Searle’s framework, rather than a reference to the behaviour of the citizenry.

  13. 13.

    In relation to whether such rules can be identified, Searle remarks that ‘the effort to state the rules for the performance of speech-acts can also be regarded as a test of the hypothesis that there are constitutive rules underlying speech acts. If we are unable to give any satisfactory rule formulations, our failure could be construed as partially disconfirming evidence against the hypothesis.’.

  14. 14.

    In this regard, I assume that a statement by a legal institution is intentional. I do not ascribe a strong intentionality; a legal institution may well be giving effect to reasons such as social norms. But at the very least, a legal institution plays a mediating role as a speaker. This is in conformity with Austin and Searle without necessarily subscribing to the intentionalist account by Bach and Harnish.

  15. 15.

    The classic exposition of the ‘constrained view’ or the limited potential for the Supreme Court to effect social change using Brown as an example is Rosenberg [53, pp. 42–93].

  16. 16.

    As Reed [51] puts it:

    “Segregated education, not segregated movie houses or drinking fountains, was the foundation of Jim Crow. Segregated education was the line of demarcation between oppressor and oppressed; it policed the boundary of the racial hierarchy. Which side of that line you stood on determined where you could go in the world. Even if you were fortunate enough to be educated in one of the few excellent segregated schools, you faced severely limited horizons. The classic example is W.E.B. Du Bois. The first black American to get a Ph.D. from Harvard, he could not find an academic appointment at a white institution in the United States. That was the point at which the confinement of the horizon was most cruel.”

  17. 17.

    The ‘miniscule size of the population’ seeking protections was found to be an argument against such members of the LGBTQ community.

  18. 18.

    Recall Khaitan’s third proposition in his account of expressive norms [29, p. 4].

  19. 19.

    As Sturgeon points out, it is important to not to confuse consequentialists with economists [65, p. 514].

  20. 20.

    In the absence of explicit safeguards, there could well be a convergence of information that could be used by regulatory bodies for undisclosed and unanticipated purposes—especially ones like the Intelligence Bureau that is beyond the reach of right to information legislation—a phenomenon that has been referred to as ‘functional creep’ [62, p. 214].

  21. 21.

    The dissenting opinion in Puttaswamy II has been relied on by the Supreme Court of Jamaica in a robust way to find its biometric identification law unconstitutional on privacy grounds [83].

  22. 22.

    Mukherjee makes this point with respect to the legality of ordinances made by state governments [45]; Khaitan makes this point with respect to fundamental rights in general [35]; Kamil makes this point specifically with respect to the right to privacy [27].

  23. 23.

    See Sect. 4.1 above.

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Acknowledgements

Earlier versions of this article were prepared for the Irish Jurisprudence Society and Global Constitutionalism Seminar. I am grateful to Tim Murphy, David Prendergast, Oran Doyle, Garrett Barden and Dimitry Kochenov for comments on earlier drafts. I also thank the reviewers of this article for reading my work with interest.

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Roy, S. Constitutive Reasons and Consequences of Expressive Norms. Int J Semiot Law 34, 389–408 (2021). https://doi.org/10.1007/s11196-020-09705-w

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Keywords

  • Consequentialism
  • Dignity
  • Epistemic claims
  • Expressive function
  • Non-discrimination
  • Speech-acts