Wednesday, December 16, 2015
The expressive power of law defies capture by those inclined ("caused"?) to reduce compliance with (or obedience to) law to either deterrence or "legitimacy." I recommend in this vein Richard McAdams's The Expressive Powers of Law: Theories and Limits (Harvard 2015), a book that can be read especially profitably in tandem with Fred Schauer's The Force of Law (Harvard 2015). Schauer's careful argument for the place of coercion in law's efficacy is somewhat overstated, in my view, and McAdams's account, while doing too little to expose the place in law of reasons for action per se, does a fine job of both demonstrating and refusing to exaggerate law's power of suggestion. With dignitary harms multiplying as causes of action, it's timely to clarify whether the operation of law's expressive power that does not lead to compliance should nonetheless a cause of action make.