What is the 'Best Interpretation of Will and Preferences'?

Research output: Contribution to conferencePaper

Author(s)

Department/unit(s)

Conference

ConferenceThe Second UK Mental Disability Law Conference
CountryUnited Kingdom
CityNottingham
Conference date(s)25/06/1826/06/18

Publication details

DatePublished - 26 Jun 2018
Original languageEnglish

Abstract

In General Comment No 1 (‘GC1’), the UN Committee on the Rights of Persons with Disabilities has called for the ‘best interpretation of will and preferences’ to replace ‘best interests’ determinations in decision-making law; but it gives little guidance about the content of this new standard. This paper is about the meaning of the word ‘best’. In this context, the most common reading of ‘best’ reduces it to epistemic norms. It takes the new standard to mean something like ‘the most accurate interpretation of wishes and feelings’. This would not allow interpretation to be guided by non-epistemic norms: for instance, by ideas about what the person should want or ideas about what is good for people in general. GC1’s repeated contrast between ‘best interests’ and ‘best interpretation’ makes this reading very natural.
The epistemic reading of ‘best’, however, faces both a textual and a practical challenge. Textually, GC1 seems to allow, and possibly require, non-epistemic norms to influence interpretation. Practically, there are good reasons to doubt that it is possible to interpret another person without drawing on non-epistemic norms. Together, these problems suggest a substantive reading of ‘best’: one that explicitly draws on non-epistemic norms. This, however, raises a new problem. Unless care is taken, a substantive reading may quietly collapse into the very ‘best interests’ standard that ‘best interpretation’ was supposed to replace.

Discover related content

Find related publications, people, projects, datasets and more using interactive charts.

View graph of relations