rather than an assertion of a proposition.
See S. McDonald, ‘“Defining Characteristics” and the Forgotten “Court”’ (2016) 38 Sydney
The Implicit and the Implied in a Written Constitution
121
Commission . . .’). The presupposition in s. 73 (iii) that it exists has not been
thought to imply that it must exist.
It therefore seems that any implication that State Supreme Courts must
continue to exist must be due either to some other kind of implication, or
special legal interpretive principles concerning the purpose of s. 73 (ii) and
what is necessary to fulfil it.
4.4.2. Implicatures
‘Implicature’ is a term famously coined by the philosopher H. P. Grice, build-
ing on the verb ‘to implicate’ (meaning ‘to imply’). As an example, Grice
described a Philosophy Professor, asked to provide a reference for a student
seeking a lectureship in philosophy, replying that ‘he writes good English and
regularly attends tutorials’.
46
The statement damns with faint praise – it ‘impli-
cates’ that the student has no philosophical ability worth mentioning.
Grice’s explanation of how we identify implicatures relied on the commu-
nicative principles mentioned previously, of quantity, quality, relevance and
manner.
47
But he argued that there need only be general, rather than univer-
sal, compliance with these principles. Speakers and authors can communicate
something sub silentio by blatantly flouting one of the principles at the level
of express meaning. The express meaning of the Professor’s reference, which
says nothing about the student’s philosophical ability, plainly flouts the prin-
ciples requiring quantity and relevance. But the recipient of the reference,
assuming the Professor nevertheless intended to communicate something
helpful, understands this to be deliberate and itself pregnant with meaning:
the Professor is taken to implicate that the student has no philosophical abil-
ity worth mentioning. The Professor exploited the communicative principles,
conveying an implicature by appearing on the surface to flout them.
Some other suggested examples of such exploitation involve nonliteral but
direct speech rather than implicature, which is a form of indirect speech.
Consider figurative statements that are metaphorical (‘Juliet is the sun’) or
ironical (‘That was clever’, said after a foolish mishap). Because their literal
meanings would obviously violate the principle requiring truthfulness, they
are interpreted as conveying some other meaning.
48
As previously noted, most
elliptical expressions can probably be analysed in a similar fashion (consider,
again, ‘Everyone has gone to Paris’).
46
Grice, Supra note 33, 33, 37.
47
See Supra, text to nn 33 to 34.
48
But see Bach, Supra note 21, 143–4.
122
Jeffrey Goldsworthy
Lawyers usually attempt to be as explicit as possible to avoid any chance
of misunderstanding. It is therefore extremely rare to find in constitutions
examples of deliberate insinuations or hints, intended to be read ‘between
the lines’, such as the one conveyed by the Professor’s reference. One of the
rare examples may be the way the American Constitution appears to deal with
slavery by carefully using euphemisms, rather than the word itself.
49
Nevertheless, legal texts may include other kinds of implicatures, which
result from the likelihood that the speaker or author has complied with, rather
than flouted, Grice’s principles of communication.
Consider the following sign: ‘Children under 15 years admitted free’. Its
express meaning is consistent with children of fifteen years or over also being
admitted free: it does not expressly rule that out. But it suggests that only chil-
dren under fifteen will be admitted free, because otherwise it would violate
the communicative principle of quantity. Readers presume that such a sign
is fully informative as to free admission, rather than disclosing only part of
the policy to be applied. If children of fifteen or over, or adults, were also
admitted for free, the sign would violate that principle and would be seriously
misleading. If everyone were admitted free, it would be worse than pointless.
The sign is therefore understood either as elliptical (‘[Only] children under
fifteen years admitted free’), or as implicating that no one else is admitted free.
The interpretive presumption expressio unius est exclusio alterius (‘the
expression of one thing is the exclusion of another’) embodies the legal equiv-
alent of the same kind of inference.
50
It is applied to written constitutions, as
well as to statutes, and in both cases to procedures, rights and powers.
As for procedures, consider provisions that authorise constitutional amend-
ments. Section 128 of the Australian Constitution expressly provides that ‘This
Constitution shall not be altered except in the following manner’, which it goes
on to prescribe. But even if it had merely said ‘This Constitution may be altered
in the following manner’, that manner would arguably – by an inference of
the expressio unius kind – be exclusive. The provision would be elliptical, the
word ‘only’ being regarded as implicitly qualifying the words ‘may be altered’.
It is interesting to compare Article V in the United States Constitution,
which sets out the procedure for constitutional amendment without expressly
providing that it is exclusive:
The Congress, whenever two thirds of both houses shall deem it necessary,
shall propose amendments to this Constitution, or, on the application of the
49
See discussion in R. Barnett, ‘The Misconceived Assumption about Constitutional Assump-
tions’ (2009) 103 Northwestern University Law Review 615, 644–50.
50
For useful discussion see A. Scalia and B. A. Garner, Reading Law: The Interpretation of Legal
Texts (St Paul: West, 2012), 107–11.
