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The Implicit and the Implied in a Written Constitution
113
4.2. Clarifying Interpretation, Contextual
Enrichment, Express and Implied Meaning
Lawyers need a conception of the nature of the pre-existing meaning that a
constitution, like any law, necessarily possesses.
19
One possibility is that it con-
sists of the literal meaning of the composition of numbers, words and punctu-
ation marks that constitute the constitution’s text, determined by the linguistic
conventions governing both ordinary and legal usage of either: (1) the period
when the constitution was drafted and enacted; or (2) contemporary society.
But this possibility must be ruled out because it cannot accommodate the
inexplicit – the implicit and implied – components of a constitution’s mean-
ing. As Felix Frankfurter once remarked, the most fundamental question in
legal interpretation is: ‘What is below the surface of the words and yet fairly a
part of them?’
20
The literalist’s answer – ‘Nothing’ – is untenable.
Linguists and philosophers of language distinguish between ‘semantics’ and
‘pragmatics’, although they disagree about precisely how to do so. ‘Semantics’
concerns aspects of meaning fixed by social conventions: mainly, conventional
(dictionary) meanings of words plus rules of grammar (syntax) governing the com-
bination of words in meaningful sentences.
21
‘Pragmatics’ concerns aspects of the
meanings of the utterances of sentences that are determined by context, includ-
ing linguistic context and the background to and circumstances surrounding the
making of an utterance. It is generally agreed that context is relevant because and
insofar as it illuminates the speaker’s or author’s communicative intentions.
22
This distinction helps to draw other distinctions, including between:
(1) What a sentence literally means;
(2) What an utterance of the sentence expresses; and
(3) What an utterance of the sentence implies.
23
can be illuminated by the distinction between clarifying, supplementing and rectifying
interpretation. Many of these principles are just the legal equivalents of ordinary interpretive
principles, and help to clarify pre-existing linguistic meaning. Peculiarly legal interpretive
principles will usually concern supplementing or rectifying interpretation. However, inso-
far as lawmakers, in drafting their laws, may take into account the operation of special legal
interpretive principles, those principles may be ‘picked up’ by ordinary interpretive principles
concerned with the author’s or speaker’s communicative intentions.
19
Goldsworthy, Supra note 10.
20
F. Frankfurter, ‘Some Reflections on the Reading of Statutes’ (1947) 47 Columbia Law Review
527, 533.
21
Note that this is a particular use of the term ‘semantic’ that is distinct from another use,
which is to refer to those aspects of meaning that contribute to truth conditions: see K. Bach,
‘Conversational Impliciture’ (1994) 9 Mind & Language 124, 132–3 esp note 8.
22
It is necessary to distinguish what a speaker/author was intending to communicate from what
he or she was intending to achieve by communicating it.
23
Here I must side-step metaphysical questions about whether the express and implied meanings
of an utterance are identical to what the speaker meant to express and imply by uttering it. See
114
Jeffrey Goldsworthy
(1) concerns the literal meaning of a sentence abstracted from any context
of utterance; it is determined solely by semantics (linguistic conventions). (2)
and (3) concern, respectively, the express and implied meanings of a particu-
lar utterance of a sentence, and are determined by pragmatics (the context of
that utterance) as well as semantics.
It is now generally accepted by linguists and philosophers of language that
(1) – literal or sentence meaning – is much thinner than (2) and (3). The literal
meaning of a context-free sentence usually (and arguably always) underdeter-
mines what its utterance in a particular context expresses and implies.
24
The
sentence in itself is just a template, blueprint or skeleton that must be prag-
matically (contextually) enriched in order to ascertain what an utterance of
the sentence expresses and implies. This process of enrichment involves infer-
ring the speaker’s or author’s likely communicative intentions from contextual
information concerning his or her utterance of the sentence in addition to the
literal meaning of the sentence itself.
25
The underdeterminacy thesis is true by definition in the case of implied
meanings which, since they are not expressed in words, cannot be derived
solely from the conventional meanings of words. What is perhaps surprising is
that the literal meaning of a context-free sentence also underdetermines what
an utterance of the sentence expresses. Paradoxically, even express meaning
sometimes includes inexplicit content.
4.3. Contextual Enrichment and Express Meaning
Consider the following examples of how even express meaning can include
content that is inferred partly from context rather than solely from semantic
conventions.
J. Goldsworthy, ‘Moderate versus Strong Intentionalism: Knapp and Michaels Revisited’
(2005) 42 University of San Diego Law Review 669.
24
The ‘always’ argument is that even a sentence that appears to state a proposition could, when
actually uttered, be used non-literally, for example, ironically or metaphorically: see K. Bach,
‘Context ex Machina’, in Z. Szabo (ed.), Semantics versus Pragmatics (Oxford: Oxford University
Press, 2005), 15, 26–7.
25
I have frequently emphasised this point in earlier publications, starting with ‘Implications in
Language, Law and the Constitution’, chapter note 1, 151; see also J. Goldsworthy, ‘Legislative
Intentions, Legislative Supremacy, and Legal Positivism’ (2004) 42 San Diego Law Review 669.
Other legal theorists now agree: see e.g., R. Ekins, The Nature of Legislative Intent (Oxford:
Oxford University Press, 2012), ch 7, and A. Marmor, The Language of Law (Oxford: Oxford
University Press, 2014), chs 1 and 2 esp 24–34.
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