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11 Roman Legal Trad. 1 (2015)
The Expressive Function of Law and the Lex Imperfecta

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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