Law Without Mind
A large part of the work done by lawyers and judges involves the interpretation of enacted law – primarily, statutes and the Constitution. Not surprisingly, legal scholars offer a good deal of advice, usually unsolicited, about how the task of interpretation should be performed. At present, such scholarly advice commonly recommends variations on an approach that may be called “present-oriented interpretation.” This approach discourages judges from equating a law with its historical meaning or “original understanding.” Instead, it urges them to construe statutes and constitutional provisions in a way that will render the law “the best it can be” in light of present needs and values.
Of course, present-oriented interpretation also has its critics. One objection asserts that the approach is really a disguise for something else – for instance, that it is an excuse for judges (or law professors) to interpolate their own values into law under the guise of “interpretation. “3 In this essay, however, I want to consider present-oriented interpretation as what it purports to be. Thus, I will assume that the approach would significantly and sufficiently constrain judges, that it is not merely a device for reading the interpreter’s values into law, and that it offers a genuine alternative to other common methods or theories of interpretation. I will argue that even taken on its own terms (or, more accurately, especially if taken on its own terms), present-oriented interpretation is deeply flawed. Indeed, if present- oriented interpretation could actually be all that its proponents claim it is, the approach would be even less acceptable than if its critics’ more skeptical depiction is correct.