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11 Roman Legal Trad. 1 (2015)

handle is hein.journals/rltrad11 and id is 1 raw text is: The Expressive Function of Law and the Lex Imperfecta Thomas A. J. McGinn* Abstract - Legal scholars have developed the thesis that a law may convey a social meaning that reinforces or changes the norms of a community, beyond its role in establishing and enforcing rules. This is described as the expressive function of law. It is associated with the University of Chicago, though its adherents are spread more widely. At its core it invites us to consider how rules alter the social meaning of behavior, and in its more mus- cular forms it acknowledges and even promotes laws that create new norms of behavior. The ways in which individual scholars treat collective action problems, rational choice, and the role of government, vary considerably, however. This article suggests that the Romans themselves implicitly recognized the expressive function of law and indeed employed it with success. The princi- pal example is the lex imperfecta. This is a term from antiquity, somewhat disputed, used to describe a statute that prohibits or discourages behavior without assigning a penalty or otherwise voiding the effects of the underlying acts. Other examples from antiquity are considered also. * Professor, Department of Classical Studies, Vanderbilt University. It is my pleasure to thank my various audiences in particular for their many fine suggestions and comments as well as in general for their warm reception to the several versions of this paper that I delivered at the Universitat Salzburg, the UniversitA di Roma Tor Vergata, the UniversitA del Sannio, the University of Helsinki, the UniversitA di Napoli Federico II, and the University of Mississippi at Oxford. I would also like to thank my hosts for the honor of the invitation to speak: Professors Michael Rainer, Roberto Fiori, Aglaia McClintock, Kaius Tuori, Carla Masi Doria, Cosimo Cascione, and Molly Pasco-Pranger. My thanks to Professor Adriaan Lanni for spurring my interest in expressive law. Roman Legal Tradition, 11 (2015), 1-41. ISSN 1943-6483. Published by the Ames Foundation at the Harvard Law School and the University of Glasgow School of Law. This work may be reproduced and distributed for all non-commercial purposes. Copyright @ 2015 by Thomas A. J. McGinn. All rights reserved apart from those granted above. ROMANLEGALTRADITION.ORG

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