Of Two Minds About Law and Minds

Present-oriented interpretation is an interpretive approach to legal texts that assigns them the best meaning, in terms of contemporary social policy, that they could plausibly convey were they written today rather than at the actual times of their enactment. Steven Smith has recently argued that present-oriented interpretation is a view of law in which law is literally “mindless.” That is, present-oriented interpretation would have us be ruled by the fortuity of what present meanings the words of a text can bear, whereas, according to Smith, we should be ruled by what the enacting political authorities actually decided furthers the public good.

Although Smith’s concerns about present-oriented interpretation in general are well taken, I shall argue that Smith is misleading in contrasting “mindless” present-oriented interpretation with the “mindful” originalism that he endorses. More specifically, I shall argue for two propositions: (1) Present-oriented interpretation is not completely mindless, and originalism is not completely mindful; both are mindless and mindful in similar ways. (2) Law will always connect with mind, but the tension between mindlessness and mindfulness in interpretive strategies is not illusory; rather, it reflects a tension within mind itself, the tension between reason and will. We want our law to be reasonable, but we must, in order to be reasonable, decide what reason requires. That means that our decisions – what we “will” must carry force independent of the reasons they attempt to reflect. On the other hand, any decision about what reason requires may look unreasonable from our present perspective.