A fourth possible strategy for defending proceduralism might be called expressivism.123 Law is sometimes described as expressive inso- far as it has a value-creating function.124 The idea is that legal out- comes can, themselves, be (partly) constitutive of our evaluative and, specifically, moral framework. How might this idea underwrite pro- ceduralism? Consider the following:
An Expressive Case for Proceduralism
If regulators follow procedure P*, and they end up choosing O1 over
O2, then O1 is morally better than O2, either conclusively (strong- form expressivism) or prima facie (weak-form expressivism).
Expressivism circumvents some of the above-noted difficulties in the skeptical, foundationalist, and conventionalist arguments for proce- duralism. Expressivism (as here presented) is cognitivist, not skepti- cal. Unlike actual-choice foundationalism, it does not adduce P* as a procedure constitutive of all moral criteria, but rather as a procedure that supplements other grounds for moral distinctions. O3 can be morally better than O4, even if the O3-over-O4 choice is not the out- come of P*—the expressivist allows as much; but where O1is chosen over O2 by means of P*, then O1 is (conclusively or at least prima fa- cie) better. In effect, actual-choice foundationalism makes the im- plementation of the favored procedure a necessary condition for moral distinctions, while expressivism (more plausibly) makes its implementation a merely sufficient condition. Finally, by contrast with conventionalism, expressivism eschews any link to social norms and practices. P* is claimed to be morally constitutive, quite apart from whether P* is generally believed to be morally constitutive (or otherwise favored by existing social norms), and quite apart from whether the O1 that results from P* is generally believed to be better than the alternative O2 (or is otherwise favored over O2 in light of so- cial norms).
123. “Expressivism,” as I use the term here, is one kind of cognitivist moral view and thus is quite different from the noncognitivist metaethical view often referred to by moral philosophers as “expressivism.” See sources cited supra note 97.
124. See, e.g., Pildes & Sunstein, supra note 62, at 70 (“[The] expressive or symbolic dimensions of policy are central [because] [p]art of what policy-making does is to define, in- terpret, and create collective understandings and values.”). Professor Sunstein has also ar- ticulated this view of the law as value-generating, thus:
The effects of any legal rule can be described in an infinite number of ways. Any particular characterization or accounting of consequences will rest not on some depiction of the brute facts; instead it will be mediated by a set of (often tacit) norms determining how to describe or conceive of consequences. It is pos- sible to see a large part of the expressive function of law in the identification of what consequences count.
Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2048 (1996).
Still, expressivism is a problematic strategy for defending proce- duralism. One problem is in specifying a procedure (P*) that is not too idealized to be infeasible, but that is still sufficiently idealized to be constitutive of the moral standing of the outcomes it produces. Consider a civic-republican specification of P*: P* is the procedure where regulators sincerely attempt to be impartial, where they delib- erate pretty well, where they are not too uninformed, and where some kind of consensus is reached among a large fraction of those in- terest-group representatives or other members of the public who par- ticipate in the regulatory process. Why should P* constitute O1 as morally better than O2, even prima facie? Let’s assume that hypo- thetical-choice foundationalism is true and also that the foundation of morality is some idealized, civic-republican style procedure, roughly along the lines that Scanlon suggests. Call it P+. P* is not the
same procedure as P+; if it were, P* would be infeasible. So O1 could
be chosen by O2 through P*even thoughO2 would be chosen over O1
through P+. To be more concrete, O1 could be an outcome that causes
large welfare losses and widespread environmental degradation, or in which an innocent victim is sacrificed for the greater good, in vio- lation of her deontological rights. But why should the fact that O1
was chosen over O2 in a not-too-bad procedure, by civic-republican lights, confer any moral authority on O1, when O2 would be chosen over O1 in a perfect civic-republican procedure? Conversely, in the case where both P*and P+ point in favor of O1, we do not need to in-
voke P* to explain the betterness of O1; that is fully explained by P+,
our civic-republican foundation.
The proceduralist could respond to this objection by denying hypo- thetical-choice foundationalism. To make the response sharpest, as- sume she posits a foundation for morality that has nothing whatso- ever to do with collective choice or approval. Perhaps she posits a traditionalist view of morality. She might claim, “In general, one out- come is better than another if the first is traditionally believed to be better, in the relevant society. But in the special case where O1 is chosen over O2 through P*, O1 is at least prima facie better on those very grounds.” Yet if morality is generally a matter of traditional be- liefs, not hypothetical procedures, then why does P* have a morally constitutive role? In short, the expressivist faces a dilemma: either she adopts a hypothetical-choice foundationalism that makes some idealized version of P* the general grounds of morality (in which case we can ask why feasible and nonideal P* is also morally constitutive), or she does not (in which case we can accuse her of inconsistency in ascribing moral power to P* while asserting that the general grounds of morality are quite different).
This line of attack on expressivism might be overcome. Perhaps there is some feasible governmental procedure P* such that its out-
comes are guaranteed to be morally good or right, at least prima fa- cie. I have not shown definitively that P* cannot or does not exist. But even if P* does exist, the kind of proceduralism that follows from its existence is really quite thin. Regulators are not obliged to follow
P*, even prima facie. If they follow a different (and nonconstitutive) procedure which is instrumentally appropriate in that it produces morally better O3 as against morally worse O4, then the regulators have not done anything wrong, even prime facie. (Contrast this with the standard view, to be considered in a moment, that certain, par- ticipatory procedures are intrinsically important because they en- hance the welfare of participants. If this view is right, then regula- tors are obliged, at least prima facie, to follow the participatory pro- cedures.) Further, it may be the case that regulators are all-things- considered obliged not to follow P*. This possibility is avoided only if
P* has a conclusive rather than merely prima facie role in fixing the moral standing of its outcomes; but that strong-expressivist claim raises the plausible objection that no nonideal governmental proce- dure could guarantee moral betterness.