versity Press, 1975).
For the application of such an approach to social and institutional, though not distinctively le-
standing. Central to the realist approach is the drawing of a sharp separation between meaning
understand its nature, believing it to be an element rather than a compound). It follows from
this possibility that some language-users will have greater expertise in identifying what counts
man and Simchen infer from this that such experts therefore must have some sort of special
164
Patrick Emerton
underpins the generation of implications in the manner just illustrated by
these Australian examples. The characteristics of the phenomena referred to,
from which the implications in question flow, are not facts belonging to the
natural world but rather facts about history, politics and the realities of social
and institutional life.
Where this sort of methodology is adopted, the invisible constitutional
content that it generates will depend upon two factors which are likely to be
affected by social and political context and differences of legal cultures. First,
even when words are used which are (on their face) the same (or are synony-
mous, in virtue of etymology, as accepted in standard dictionaries of transla-
tion, etc.), they may not be properly understood as having the same reference
in the ‘objective’ or ‘realist’ sense. When used in different constitutional or
legal contexts, by lawmakers coming from different political and legal cul-
tures, the same words may not be literally co-referring but rather may refer to
importantly different social/political states of affairs. For instance, the nature
of the phenomena referred to by terms such as judicial power, or court, or
appellate hierarchy is likely to be different in different constitutional orders –
because these are phenomena whose characteristics are shaped by the par-
ticularities of the history of law and its institutions – and hence the very same
text as occurs in the Australian constitution could be expected to yield quite
different invisible consequences if transplanted to another context.
52
Second, different legal systems or legal cultures may employ or permit dif-
fering methodologies (e.g., of leading evidence, of taking judicial notice, of
accepting executive certificates, etc.) for determining the nature and charac-
teristics of the phenomena referred to by constitutional texts.
53
These differ-
ences of methodology may mean that even when particular words or phrases
authority to establish the meaning of the word ‘water’ (18–19), and they go on to argue that
the word ‘law’, and other legal language, is not such that its meaning is fixed by experts, and
hence cannot be analysed in realist terms. But this inference is erroneous, resting on the very
conflation of knowledge and meaning that the realist approach eschews.
52
This is a very different point from the contrast often drawn between
concept and
conception: it
is not a point about different sorts of mental or semantic entities falling under the same word,
but rather is a metaphysical point, that words which are from the lexicographic point of view
synonyms may nevertheless, in differing context of production, refer to importantly different
things, particularly when the ‘things’ in question are extremely complex social states of affairs
to which participants’ epistemic access is less than fully transparent.
53
For instance, in Roach v. Electoral Commissioner (2007) 233 CLR 162, the Australian High
Court referred to the work of historians to help understand the reference of
the people: e.g.,
194–5 [69] (Gummow, Kirby and Crennan JJ). In Rowe v. Electoral Commissioner (2010) 243
CLR 1, the Court relied upon data produced by the Australian Electoral Commission to help
ascertain details of the manner in which members of the people ensure they are able to par-
ticipate in the direct choice by being registered on the electoral roll: e.g., 24 [37] (French CJ);
56 [147] (Gummow and Bell JJ).
