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Patrick Emerton
to the principles that animate or underpin those rules, and then to treat those
principles as self-standing parts of the law. But in others this is not a legitimate
mode of determining legal (including constitutional) content.
34
This already makes it evident that, on the ‘thin’ picture, the constitution
will have a crucial invisible component that depends upon local context. But
I want to develop this claim further, by showing how – even if common meth-
odologies are adopted – there is nevertheless good reason to believe that there
will be a crucial invisible element to the constitution which will depend upon
particular social and political contexts.
Within a broadly positivist framework, the identification of the legal con-
tent of a legal text requires ascertaining the meaning and consequences of that
text. There are various approaches to doing this; I will consider two, character-
ised by reference to ideas in the philosophy of language. My aim is for these
two approaches to be (between them) sufficiently representative that what is
true of them is at least plausible for interpretive methods in general.
5.4.1. Communicative Approaches to Interpretation
One relatively popular approach to the interpretation of legal texts, includ-
ing constitutional ones, is what can be called a communicative approach:
legal texts are understood as the authoritative communications of lawmak-
ers.
35
One important aspect of this approach is its appeal to lawmakers’ com-
municative intentions, and the context within which those intentions are
formed and conveyed, to understand what it is that has been communicated.
36
Goldsworthy, for instance, emphasises the role that background assumptions
34
E.g., in Australia, the impermissibility of such reasoning in the context of constitutional inter-
pretation and application is established by the Engineers’ case (Amalgamated Society of Engi-
neers v. Adelaide Steamship Co Ltd (1920) 28 CLR 129) and Lange v. Australian Broadcasting
Corporation (1997) 189 CLR 520.
35
For insightful, though devastatingly critical, discussion of this approach see Greenberg, ‘The
Moral Impact Theory’, Supra note 1; ‘The Standard Picture’, Supra note 1; Mark Greenberg,
‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communi-
cation’, in Andrei Marmor and Scott Soames (eds.) Philosophical Foundations of Language
and the Law (Oxford: Oxford University Press, 2011).
36
See for instance Larry Alexander, ‘Constitutional Theories: A Taxonomy and (Implicit) Cri-
tique’ (2014) 51 San Diego Law Review 623, 638–9; Jeff Goldsworthy, ‘Implications in language,
law and the constitution’, in Geoffrey Lindell (ed.), Future Directions in Australian Constitu-
tional Law (Leichardt: Federation Press, 1994). Alexander’s exposition relies upon an intuitive
notion of communication, while Goldsworthy draws upon Grice and Searle to develop a com-
municative account of the meaning of legal texts.
The Centrality and Diversity of the Invisible Constitution
161
may play in establishing what has been communicated, or presupposed, by a
legal text and hence what the law permits or requires.
37
On this sort of approach, a constitutional (or other legal) text may have
invisible legal consequences – unwritten permissions or requirements – which
are the result of invisible elements of the constitution’s promulgation – the
background and assumptions which provided the context for the lawmakers’
communication, and which thereby yield these invisible consequences. This
context will vary with social and political circumstances in two ways: first,
and obviously, differences in such circumstances are themselves differences
in background that might therefore contribute in differences in what is com-
municated though not part of the visible text; second, understandings of what
is or is not taken for granted in communication, and hence of what is or is
not assumed or presupposed in communication, is itself something which
can vary with culture (including particularities of legal culture) and which,
when it varies, will lead to differences in the unwritten yet communicated
legal content.
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