For The Journal of Interpersonal Violence

According to the view I will call Legal Expressivism (LE), neither crime nor punishment consists merely in intentionally imposing some kind of harm on another. Both also have an expressive aspect. In terms I will be using, they are what they are in part because they enact attitudes towards others – in the case of crime, some kind of disrespect, at least, and in the case of punishment, society’s condemnation or reprobation. Indeed, punishment is justified, at least in part, because (and when) it uniquely expresses fitting condemnation or other retributive attitude. Hate or bias crimes dramatize the expressive aspect of crime, since they typically, and sometimes by design, send a message of inferiority to the victim’s group and society at large. Treating the enactment of contempt and denigration towards a historically underprivileged group as an aggravating factor in sentencing may be an appropriate way to counter this message, since it reaffirms and indeed realizes the fundamental equality of all members of a democratic community. Elements of Legal Expressivism can be found in the work of many legal thinkers.1 Yet virtually every aspect of the story has been called into question by critics. In this paper, I will refine the LE account and respond to some of the criticisms. I will begin with the notion of an attitude and its relation to emotion, and argue that the two should not be assimilated