|
The Implicit and the Implied in a Written Constitution
135
a standard of clarity – a requirement of obviousness – that is higher than
expected in everyday discourse, in order to guard against the first kind of
error.
105
That might also have the salutary effect of motivating lawmakers and
their drafters to think more carefully about what they need to make explicit in
order to avoid misunderstanding.
4.5. Rectifying Interpretation and Fabricated Implications
Relying on the notion of implicit assumptions to avoid the undesirable con-
sequences of express meanings in unusual circumstances has been criticised
for unrealistically attributing too much to the meaning, or communicated
content, of utterances.
106
If that criticism is sound, then to avoid those con-
sequences judges would have to act creatively, in effect amending statutory
and constitutional provisions by inserting into them qualifications that the
lawmaker failed to include. This used to be called ‘equitable interpretation’,
and is still advocated today.
107
Judges may sometimes be justified in acting as
the lawmaker’s ‘faithful agents’, expanding or contracting the meaning of the
law in order to better give effect to the lawmaker’s purposes and values.
Because judges are reluctant openly to amend statutes and constitutions,
they sometimes speak of ‘reading into’ or ‘implying into’ them qualifications
that are ‘necessary’ to fulfil the lawmaker’s objectives. This returns us to a
distinction drawn at the outset of this chapter. When courts ascribe an impli-
cation to a constitution, are they always purporting to discover a genuine
one, which ordinary linguistic principles reveal the constitution to already
include? Or are they sometimes relying on distinctively legal interpretive prin-
ciples, which justify the insertion of a fabricated implication – one that is
really new – into the constitution?
In common law jurisdictions, lawyers routinely use idiosyncratic legal ter-
minology that describes terms being ‘implied into’ or ‘read into’ legal texts,
105
Ibid.
106
See e.g., S. Soames, ‘Interpreting Legal Texts: What Is, and What Is Not, Special about the
Law’, in Philosophical Essays, Vol 1, Natural Language: What It Means and How We Use It
(Princeton: Princeton University Press, 2009), 403, 415–18; ‘What Vagueness and Inconsistency
Tell Us about Interpretation’, in A. Marmor and S. Soames (eds.), Philosophical Foundations
of Language in the Law (New York: Oxford University Press, 2011), 31, 46–51.
107
See e.g., Ekins, Supra note 25, 275–84; J. Evans, ‘A Brief History of Equitable Interpretation in
the Common Law System’ in T. Campbell and J. Goldsworthy, Legal Interpretation in Demo-
cratic States (Aldershot: Ashgate, 2002), 67; J. Evans, ‘Reading Down Statutes’, in R. Bigwood
(ed.), The Statute: Making and Meaning (Wellington: LexisNexis, 2004), 123.
136
Jeffrey Goldsworthy
and judges ‘making implications’ by ‘implying’ legal powers or legal limits.
108
This is idiosyncratic because, in ordinary English, terms that are genuinely
implied by a text are inferred from it, and implications are made by the author
of a text, not by its reader or interpreter. To speak of terms being implied into
or read into a text by an interpreter is to use oxymoronic expressions that, in
trying to have it both ways, defy ordinary English.
109
It might be argued that these peculiar legal expressions are merely conven-
ient lawyers’ shorthand to describe the discovery of genuine implications. But
this seems implausible, because in ordinary English it is only slightly more
convenient (quicker and easier) to say (incorrectly) that a term ‘was implied
into’ a text, rather than (correctly) that it was ‘found to be implied by’ the text.
The best explanation is that these idiosyncratic legal expressions function as
euphemisms, blurring the distinction between the discovery of genuine impli-
cations and the insertion of fabricated ones.
110
It seems that lawyers are often
more or less aware that judges are really inserting terms into legal texts in order
to correct or improve them, but are reluctant openly to say so.
Some Australian judges have refused to concede this. Windeyer J disap-
proved of the expression ‘making implications’, when he said: ‘I would pre-
fer not to say “making implications”, because our avowed task is simply the
revealing or uncovering of implications that are already there’.
111
In McGinty,
Brennan CJ agreed: ‘Implications are not devised by the judiciary; they exist
in the text and structure of the Constitution and are revealed or uncovered
by judicial exegesis’.
112
They were insisting that implications must be genuine,
not fabricated.
Although legal scholars and judges occasionally question it, a test that has
long been commonly used to identify implications in legal instruments is
that they must be ‘necessary’.
113
But two different kinds of ‘necessity’ can be
found in British and Australian case law on implications, whether statutory or
108
Do'stlaringiz bilan baham: | 
