Volume 11 
The Expressive Function of Law and the Lex Imperfecta
Thomas A. J. McGinn
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 muscular 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 principal 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.
See also the blog entry on this article
A Hypothesis regarding Justinian's decisiones and the Digest
It is frequently asserted that the Justinianic legal enactments that resolved ancient juristic disputes (the quinquaginta decisiones ["Fifty Decisions”] and so-called constitutiones extravagantes) were reflected within the Digest, the original constitutions ending up devoid of any practical purpose. It does indeed seem logical that these legislative acts were conceived so as to assist the antecessores in their daunting task of sifting through the classical-era writings. Because the legal controversies had now been resolved, it would be clear which side to take, and which texts to choose and which to discard; or failing the identification of relevant texts, how to ensure that the reforms were suitably represented through the infamous interpolationes. And even if helping the compilers had not been the original purpose behind these laws, it seems inevitable that their ready-made solutions were relied on as valuable guidance. This article seeks to examine such a standpoint in the context of the decisiones, after first considering how these very provisions should themselves be identified.
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