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Jeffrey Goldsworthy
audience – whether lawyers or citizens – would attribute to the lawmakers,
based on textual and contextual evidence available to them, and it might,
therefore, differ from the actual subjective motives or purposes of the lawmak-
ers as individuals.
If this theoretical explanation of ‘objective’ purpose is rejected, some other
explanation must be provided. It must somehow explain how legal purposes
or values can be both created by acts of lawmaking, yet also objective in the
sense of being independent of the lawmakers’ intentions or purposes. This is
likely to be very difficult. We can at least understand how moral values might
be objective even if, after philosophical analysis, we do not accept that they
are. But that is because we do not think of moral values as being deliberately
created by human beings, although they can be deliberately incorporated into
a law by lawmakers. By contrast, laws are deliberately created by human law-
makers. How, then, can those laws have ‘objective’ purposes or values that are
independent of the intentions and purposes of the people who made them?
Even if a law incorporates an objective moral value, that can only be because
the law in its context objectively manifests or evidences the lawmakers’ inten-
tion to do so. If the notion of an ‘objective purpose’ is supposed to have some
other meaning, it should be regarded with deep suspicion: it is too metaphys-
ically queer to be believable.
Barak also claims that his interpretive theory may be consistent with some
theories of pragmatics, albeit not Gricean or neo-Gricean theories.
142
But
instead of proving that claim, he calls for further research to develop such
theories.
143
This is unlikely to help him. The non-Gricean theories he men-
tions are similar to Gricean theories in that all treat pragmatic, or contextual,
enrichment as revealing the actual author’s or speaker’s communicative inten-
tions. No theory of pragmatics of my acquaintance, in the field of linguistics
or of philosophy of language, is built on the notion of an imaginary ‘ideal’
author.
4.7. Conclusion: Inexplicit Content and
Lawmakers’ Intentions
The literal meaning of a sentence may have logical implications or entail-
ments. But almost all implicit and implied content depends on some ingredi-
ent in addition to the words of the text, and as different theories of pragmatics
all agree, this can only be contextual evidence of the author’s communicative
142
Barak,Supra note 130, 71.
143
Ibid.
, 72–3.
The Implicit and the Implied in a Written Constitution
145
intentions, including evidence of his or her purpose in communicating. We
have seen how determining even the express meaning of a written constitu-
tion can require contextual enrichment, because (inter alia) of the inclusion
of indexicals, relational and ambiguous terms and ellipses. The references of
relational and ambiguous terms cannot be determined, and ellipses identified
and filled in, other than by contextual evidence of authorial intention. In the
case of ellipses, somewhat paradoxically, express meaning includes inexplicit
content.
In addition, a constitution’s implied meaning can include implicatures
and implicit assumptions that can also be revealed only through contextual
enrichment. Implicatures depend on evidence of the author’s intention to
communicate something by implication.
144
To speak of an implicit assumption
which was taken for granted, is to speak of what the author took for granted.
Texts cannot meaningfully be said to take anything for granted, at least not
if their meaning is confined to literal meaning, severed from their authors’
intentions. Even fabricated implications, which lawyers oddly describe as
being ‘read into’ or ‘implied into’ laws, are usually justified in terms of what is
necessary to fulfil the lawmakers’ intentions or purposes.
145
For these reasons, a constitution protects by implication ‘structural’ princi-
ples or values, such as representative democracy, federalism, the rule of law
and the separation of powers, only if and insofar as contextual as well as textual
evidence suggests that its makers had the requisite intention or purpose. This
is so whether or not the implication is a genuine one ascertained by clarifying
interpretation, or a fabricated one inserted by rectifying interpretation.
A major challenge for anyone who rejects intentionalism or originalism
is to provide a plausible alternative analysis of these commonplace aspects
of legal meaning and interpretation. I am not aware of any serious attempt
to do so. Moreover, if it is true that they can plausibly be explained only in
terms of inferences from text and context to the lawmaker’s probable com-
municative intentions, then notwithstanding the difficulties of explaining
the nature of collective intentions – a promising philosophical research
program that has only recently begun – we have no practicable alternative
other than continuing to interpret constitutions on the assumption that such
intentions exist.
146
144
See Section
4.4.2
.
145
See Section
4.5
.
146
See also Carston, Supra note 34, 25, quoting Stephen Neale.
146
A constitution – considered as a visible, written legal text – exists within a
broader social and political context. This chapter argues that, to a significant
extent, it is this context that gives the constitution and the laws made under
it whatever legal force they have; but that this context is not (and cannot be)
contained within it. Every constitution, therefore, has a crucial yet invisible
aspect.
1
The argument of the chapter is a philosophical one. Its goal, however, is
not purely philosophical. Rather, it is to show that considerations of analytic
jurisprudence, and analytic philosophy more generally, suggest a sociological
conclusion, namely, that each constitutional order must be its own particular
thing, by virtue of its distinctive invisible elements.
5.1. Anti-positivism and the Invisibility of the
Constitution
The claim stated in the opening paragraph of this chapter is easy to make
out for an adherent of an anti-positivist, more-or-less Dworkinian account of
law that identifies the law not primarily with the content of and requirements
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