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The Centrality and Diversity of the Invisible Constitution
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are literally co-referring in different constitutions, differing conclusions might
legitimately be reached about what the nature and characteristics of those
referents are, and hence about the unwritten constitutional content that is
generated by reference to them. Thus we once again see the conclusion
that the constitution includes elements that are invisible in the sense both
of being unwritten, and not being phenomena ordinarily thought of as legal
phenomena.
As with the previous section’s discussion of ‘thick’ validation, it may seem
commonplace to conclude that differences in methodology and practices of
argumentation across political cultures are likely to result in different under-
standings of the implicated content that arises from a particular constitutional
text. But the point of this section has been to show that a conclusion of this
sort follows even within a mainstream analytical and positivist framework
that attempts to regiment legal interpretation within sophisticated theories of
language and linguistic reasoning. The conclusion of this line of argument,
therefore, is that we should not expect to see any sort of uniformity or con-
vergence in constitutional outcomes, even if there is convergence in these
analytic methodologies, at least as long as different constitutions operate in
the context of differing legal cultures with different background assumptions,
different political/economic cultures, and different methodologies for taking
evidence about or otherwise determining the nature of the referents of the key
terms occurring in constitutional texts.
5.5. Conclusion: Constitutional Difference
and Constitutional Homogenisation
The chapter has considered a variety of analytic jurisprudential accounts of
law, both anti-positivist and broadly Hartian. It has shown that, on each such
account, we have good reason to think that any constitution necessarily has
elements that are invisible both in the sense of being unwritten, and being
dependent upon the local social and political context in ways that go beyond
any typical catalogue of the legal phenomena within a society.
This leads to a further, somewhat tentative conjecture: to the extent that
there is an increasing convergence or uniformity of constitutional outcomes
across legal systems, the explanation for this is likely to be that differences of
legal or political culture and expectation, and more broadly different forms
of social life, are being eroded. On the anti-positivist picture, such erosion
of differences would result in the moral consequences of promulgating legal
texts becoming increasingly similar across societies; on the ‘thick’ Hartian
picture, it would have the same result for the rules of legal inference which
166
Patrick Emerton
are underpinned in part by forms of social life; and on the ‘thin’ Hartian pic-
ture, it would have the same result for the bases for making inferences about
the meaning of legal texts whether understood to be shared background and
expectations (in the manner of communicative theories), or the social world
as an object of reference (in the manner of realist theories). That is to say,
constitutional convergence, on this line of thought, would tend to be better
understood as a non-rational process of cultural homogenisation than as a
rational process of universalising valid legal methodologies.
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6.1. Introduction
Interim constitutions are adopted as deliberately temporary documents which
are to be replaced by constitutional texts that are intended to be permanent.
They are typically adopted where there is an agreed need for constitutional
change, but a lack of agreement as to what that constitutional change should
look like. The theme of the ‘invisible constitution’ is of particular relevance
to interim texts, which tend to respond to and generate invisible or unwritten
features not only during the time of their operation, but even after they have
been replaced. Interim constitutions can influence the nature of both the vis-
ible and invisible constitution that exists not only in the interim era, but also
after the interim constitution has been replaced by a successor ‘permanent’
constitution. This happens in two key ways.
First, the very process of enacting an interim constitution creates the pos-
sibility for long-term influences upon constitutional development. It is clear
that interim texts may control successor texts through legal requirements about
what is to be included, as demonstrated through the use of ‘Constitutional
Principles’ in the South African interim text. However what may be less obvi-
ous is that even where the drafters of the second constitutional text are not
bound to readopt aspects of the interim text, drafting or procedural provisions
and path-dependencies can mean that the interim text has a significant long-
term influence on the constitutional law of the state.
Second, interim constitutions may be interpreted, during the period of
their operation, in expansive ways that respond to or give rise to non-textual
meaning; moreover, these expansive judicial interpretations of interim texts
may persist beyond their temporal duration, such that the invisible interim
constitution becomes a part of the invisible permanent constitution. In this
chapter, I highlight the ways in which courts in interim eras may be particu-
larly responsive to non-textual features and therefore also more likely to create
a broader ‘invisible’ constitution.
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Interim Constitutions and the Invisible Constitution
Caitlin Goss
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