You seem to be saying that “X is in the best interest of Y” is simply legal jargon for “X is in the best interest of Y and Y is legally incompetent to make decisions”. If so, then this is a case of terrible terminology.
Law is a technical language, just like medicine or physics. I certainly don’t call it a virtue that it can be impenetrable to non-lawyers. But impenetrability is a different critique than the ones you are highlighting.
The problem here isn’t opacity, as in “you have the body”. The issue with “best interest” in the sense that I understand you to be describing is that it’s misleading, and at the same time a more sensible alternative is readily available. A judge could instead say
It is strange, but nevertheless true, that even the freedom to make unwise decisions is one that the court is required to guard and only to restrict if and when the person is incompetent to make decisions.”
Note that the word “incompetent” as used here would itself be an example of legal jargon, possibly “impenetrable” to (some) non-lawyers—but one with which I would have no problem whatsoever.
(Incidentally, I happen to think terms like “fair use” are self-explanatory. Their problematic nature lies not in their intensions but in their extensions: it’s difficult to sort out boundary cases, even if the (intensional) “meaning” is clear.)
When I read your original comment, I took you to be criticizing the judge, not the legal jargon. My point was that any unfortunate implications from the judge’s statement were a product of the disconnect between legal jargon and ordinary usage. I don’t understand your distinction between “misleading” and “opaque,” by I agree that lots of legal jargon does not coincide with ordinary usage of the words. For example, “probable cause” can be satisfied by beliefs that everyone agrees are less than 50% certain.
If your criticism was directed at the lack of clarity of the legal jargon, then I don’t think we disagree. Intelligent lawyers are aware of this disconnect, but for transaction cost reasons, legal jargon is seldom changed to improve clarity for the lay audience. As I said above, I don’t claim this is optimal. But that is a point about technical jargon, not about law.
Again, I want to make it clear that my criticism is specific to this particular instance, and does not generalize to a criticism of technical jargon in general.
The distinction between “misleading” and “opaque” is as follows: a term T is opaque to a person P if P is unable to arrive at a hypothesis about the meaning of T merely from the form or structure of T itself. Roughly speaking, the person doesn’t understand the term, and knows they don’t understand it. Habeas corpus would be an example of this: even if one understands Latin (no doubt the principal obstacle for most people), “[that] you have the body” is not a phrase that makes sense in the contexts in which it appears, because (for example) “body” is not a standard way of referring to anything involved in such contexts (in this case, a living person). Upon encountering this term for the first time, one would want to ask, “what do you mean, ‘you have the body’?”
By contrast, a term T is misleading to a person P if the form or structure of T causes P to arrive at an incorrect hypothesis about the meaning of T. Roughly speaking, the person thinks they understand the term (because it is composed of standard ordinary-language words or parts thereof, assembled in a way that would make sense in context), but actually doesn’t (because the ordinary-language words do not have the meaning they think in that context). If you are correct about “best interest”(*), then this would be an example of a misleading term: “best interest” is a perfectly comprehensible phrase of ordinary language which makes sense in its ordinary meaning in the context in which it occurred. When I encountered the term, I did not ask “Huh? What does ‘best interest’ mean?”, as I might have done the first time I ran into habeas corpus; instead, I simply assumed I understood what it meant, just like I did with all the other words in that sentence (and do with most of the words in most text that I am exposed to), only to be later informed that I had (apparently) misunderstood.
This explains why my criticism was first directed at the judge: I didn’t realize that the phrase was legal jargon(*). But given that it is, my criticism shifts to the legal community, because this particular choice of terminology is very poor, due to its highly misleading quality (exacerbated in this case by deviating from the usual patterns relating specialist usages of an ordinary term to the ordinary usage, as mentioned in the footnote below).
(*)A point on which I can’t say that I’m totally convinced just yet, simply because I’ve had so much experience with discussions of the form “T doesn’t mean what you think it does”, where the person telling me this turned out to be misunderstanding me and/or making some error such as confusing denotation and connotation. In this case, my suspicions are aroused because it seems very strange for a specialist usage of “X” to mean “X and Y”, where Y is actually the important or salient part of the concept (here, “X” is “best interest”, and “Y” is “incompetent to decide”). My main alternative hypothesis to your being correct is that “best interest” does in fact mean what it ordinarily does, but that judges only ever consider it in the case of a person who has been judged incompetent; so that my criticism would again be directed at the judge, for failing to mention the part about the person being incompetent.
In this case, my suspicions are aroused because it seems very strange for a specialist usage of “X” to mean “X and Y”, where Y is actually the important or salient part of the concept (here, “X” is “best interest”, and “Y” is “incompetent to decide”). My main alternative hypothesis to your being correct is that “best interest” does in fact mean what it ordinarily does, but that judges only ever consider it in the case of a person who has been judged incompetent; so that my criticism would again be directed at the judge, for failing to mention the part about the person being incompetent.
This is a fair concern, although I don’t think I’m confusing denotation and connotation in this case. I don’t know for certain that British legal terminology follows American, or that a doctrine for child custody disputes and child-removal-from-home proceedings also is used for legal proceedings involving the mentally handicapped. I think it is likely that the quote from the judge was an excerpt of a legal opinion, not from an interview. And my experience is that P(reporter quotes from legal opinion out of context) is quite high, which has some bearing on my belief that the judge explained elsewhere why he was applying the doctrine.
You seem to be saying that “X is in the best interest of Y” is simply legal jargon for “X is in the best interest of Y and Y is legally incompetent to make decisions”. If so, then this is a case of terrible terminology.
Law is a technical language, just like medicine or physics. I certainly don’t call it a virtue that it can be impenetrable to non-lawyers. But impenetrability is a different critique than the ones you are highlighting.
A lawyer who thinks phrases like:
are self-defining is an idiot. My only point was that I didn’t think the judge was making that mistake.
The problem here isn’t opacity, as in “you have the body”. The issue with “best interest” in the sense that I understand you to be describing is that it’s misleading, and at the same time a more sensible alternative is readily available. A judge could instead say
Note that the word “incompetent” as used here would itself be an example of legal jargon, possibly “impenetrable” to (some) non-lawyers—but one with which I would have no problem whatsoever.
(Incidentally, I happen to think terms like “fair use” are self-explanatory. Their problematic nature lies not in their intensions but in their extensions: it’s difficult to sort out boundary cases, even if the (intensional) “meaning” is clear.)
When I read your original comment, I took you to be criticizing the judge, not the legal jargon. My point was that any unfortunate implications from the judge’s statement were a product of the disconnect between legal jargon and ordinary usage. I don’t understand your distinction between “misleading” and “opaque,” by I agree that lots of legal jargon does not coincide with ordinary usage of the words. For example, “probable cause” can be satisfied by beliefs that everyone agrees are less than 50% certain.
If your criticism was directed at the lack of clarity of the legal jargon, then I don’t think we disagree. Intelligent lawyers are aware of this disconnect, but for transaction cost reasons, legal jargon is seldom changed to improve clarity for the lay audience. As I said above, I don’t claim this is optimal. But that is a point about technical jargon, not about law.
Again, I want to make it clear that my criticism is specific to this particular instance, and does not generalize to a criticism of technical jargon in general.
The distinction between “misleading” and “opaque” is as follows: a term T is opaque to a person P if P is unable to arrive at a hypothesis about the meaning of T merely from the form or structure of T itself. Roughly speaking, the person doesn’t understand the term, and knows they don’t understand it. Habeas corpus would be an example of this: even if one understands Latin (no doubt the principal obstacle for most people), “[that] you have the body” is not a phrase that makes sense in the contexts in which it appears, because (for example) “body” is not a standard way of referring to anything involved in such contexts (in this case, a living person). Upon encountering this term for the first time, one would want to ask, “what do you mean, ‘you have the body’?”
By contrast, a term T is misleading to a person P if the form or structure of T causes P to arrive at an incorrect hypothesis about the meaning of T. Roughly speaking, the person thinks they understand the term (because it is composed of standard ordinary-language words or parts thereof, assembled in a way that would make sense in context), but actually doesn’t (because the ordinary-language words do not have the meaning they think in that context). If you are correct about “best interest”(*), then this would be an example of a misleading term: “best interest” is a perfectly comprehensible phrase of ordinary language which makes sense in its ordinary meaning in the context in which it occurred. When I encountered the term, I did not ask “Huh? What does ‘best interest’ mean?”, as I might have done the first time I ran into habeas corpus; instead, I simply assumed I understood what it meant, just like I did with all the other words in that sentence (and do with most of the words in most text that I am exposed to), only to be later informed that I had (apparently) misunderstood.
This explains why my criticism was first directed at the judge: I didn’t realize that the phrase was legal jargon(*). But given that it is, my criticism shifts to the legal community, because this particular choice of terminology is very poor, due to its highly misleading quality (exacerbated in this case by deviating from the usual patterns relating specialist usages of an ordinary term to the ordinary usage, as mentioned in the footnote below).
(*)A point on which I can’t say that I’m totally convinced just yet, simply because I’ve had so much experience with discussions of the form “T doesn’t mean what you think it does”, where the person telling me this turned out to be misunderstanding me and/or making some error such as confusing denotation and connotation. In this case, my suspicions are aroused because it seems very strange for a specialist usage of “X” to mean “X and Y”, where Y is actually the important or salient part of the concept (here, “X” is “best interest”, and “Y” is “incompetent to decide”). My main alternative hypothesis to your being correct is that “best interest” does in fact mean what it ordinarily does, but that judges only ever consider it in the case of a person who has been judged incompetent; so that my criticism would again be directed at the judge, for failing to mention the part about the person being incompetent.
This is a fair concern, although I don’t think I’m confusing denotation and connotation in this case. I don’t know for certain that British legal terminology follows American, or that a doctrine for child custody disputes and child-removal-from-home proceedings also is used for legal proceedings involving the mentally handicapped.
I think it is likely that the quote from the judge was an excerpt of a legal opinion, not from an interview. And my experience is that P(reporter quotes from legal opinion out of context) is quite high, which has some bearing on my belief that the judge explained elsewhere why he was applying the doctrine.