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Jeffrey Goldsworthy
Similarly, if the vindication of an express right truly depends on the protec-
tion of some incidental right, it will often be plausible to construe the former
as encompassing the latter. For example, if people have a right to vote in an
election but for practical reasons are able to vote only at a particular polling
station, the right would surely be construed as forbidding any attempt to pre-
vent them from doing so.
But there is a caveat. Requests, instructions and rules should not be regarded
as implicitly authorising any actions at all that might turn out to be necessary
to comply with them. To the contrary, they are often subject to implicit qual-
ifications that impose side constraints on efforts at compliance. In the case of
my son being asked to bring some mustard to the table, if he were to discover
that we had run out of mustard, he should not regard my request as implicitly
authorising him to break into our neighbours’ house and steal theirs or (if
he has no driver’s licence) to drive illegally to a shop in order to buy some
mustard. In these circumstances, any argument that my request implicitly
authorises whatever is necessary to comply with it would be met by a much
stronger argument that it is implicitly subject to side constraints inherent in
background assumptions prohibiting burglary and other unlawful actions.
75
In
principle, the same should be true of efforts to implement laws. If it turns out
that a law simply cannot be effectively implemented without violating some
side constraint that the lawmaker would undoubtedly not have wanted to be
violated, then the lawmaker has unintentionally created a dilemma that must
be resolved in some other way, involving rectifying interpretation.
It is easy to multiply examples of instructions and rules whose meaning
arguably depends partly on implicit side constraints that are so obvious they
may not even be noticed.
76
Consider Wittgenstein’s famous example of some-
one asked to ‘play a game with the children’.
77
The meaning of the request
is determined partly by conventional notions of what games are suitable for
children; the request is therefore not properly complied with if the children
are introduced to an adults-only game involving, say, sex or Russian roulette.
75
For this reason, Sinnott-Armstrong – who originated this example – was wrong to discount the
relevance of original intent or meaning in resolving it: see Sinnott-Armstrong, Supra note 57,
232. See also MacCallum’s ashtray example, Supra note 79.
76
J. Searle, ‘Literal Meaning’, in his
Expression and Meaning, Studies in the Theory of Speech
Acts (Cambridge: Cambridge University Press, 1979), 117, 133. See also his J. Searle ‘The Back-
ground of Meaning’, in J. Searle, F. Kiefer and M. Bierwisch (eds.), Speech Act Theory and
Pragmatics (Holland: Reidel, 1980), 221, and J. Searle
Intentionality: An Essay in the Philoso-
phy of Mind (Cambridge: Cambridge University Press, 1983), 145–8.
77
L. Wittgenstein,
Philosophical Investigations, para. 70.
The Implicit and the Implied in a Written Constitution
129
But that goes without saying.
78
Another somewhat dated example involves an
assistant being asked to ‘fetch all the ashtrays you can find’ for a meeting to
be attended by many smokers.
79
The assistant is obviously not supposed to rip
ashtrays from walls they are attached to or steal them. The request is under-
stood in a context including implicit side constraints prohibiting damage to
property and theft.
In all these examples, expressed requests, directives, rules or permissions are
regarded as implicitly including unexpressed supplements or qualifications
that seem necessary or at least appropriate in order to carry out the speaker’s
purposes and are sufficiently obvious that they can be taken for granted. But
how far can this form of reasoning be taken?
A perennial problem for judges arises when applying the express meaning of
a law would have very undesirable and probably unintended consequences in
unusual circumstances that the lawmaker apparently did not anticipate. Judges are
reluctant to apply the express meaning, because the consequences seem not only
unjust, but unjustified by due deference to the lawmaker’s authority, given that,
had it anticipated those circumstances, it would almost certainly have taken steps
to avoid those consequences. The judges have two alternative methods of avoiding
them: (1) interpreting the law, through an act of clarifying interpretation, as sub-
ject to an implicit exception covering those circumstances; or (2) in effect amend-
ing the law by adding an exception to it through an act of rectifying interpretation.
Judges are somewhat reluctant openly to embrace the second alternative,
because they have no constitutional authority to amend statutes or constitu-
tions except in very limited circumstances. But even those who most strongly
deny the legitimacy of judge-made exceptions to statutory and constitutional
laws concede that such laws may be subject to genuinely implicit exceptions
or qualifications.
80
Moreover, the first alternative often seems genuinely plau-
sible, as attested by the many legal theorists who have endorsed it.
81
Consider the following examples. A rule prohibits talking in a library; is it
subject to an implicit exception that permits someone to warn patrons that
a fire has broken out? And the problem is not confined to general rules. If
78
Perhaps the request is elliptical, meaning: ‘Play a [suitable] game with the children’. Or per-
haps, as Emerton suggests, the reference of the word ‘game’ varies with the context, and is
determined partly by implicit assumptions: see P. Emerton, ‘Political Freedoms and Entitle-
ments in the Australian Constitution – An Example of Referential Intentions Yielding Unin-
tended Consequences’ (2010) 38 Federal Law Review 169, 175.
79
G. MacCallum ‘Legislative Intent’, in R. Summers (ed.), Essays in Legal Philosophy (University
of California Press, 1968) 237, 256–7.
80
Scalia and Garner, Supra note 50, 93–111; the acknowledgement of implicit exceptions is at
96–7.
81
See notes 82–85.
