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4 - The Implicit and the Implied in a Written Constitution

from Part I - Conceptualising the Invisible Constitution

Published online by Cambridge University Press:  02 November 2018

Rosalind Dixon
Affiliation:
University of New South Wales, Sydney
Adrienne Stone
Affiliation:
University of Melbourne
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Summary

This chapter deals with norms that are claimed to be implicit in or implied by a written Constitution. It distinguishes between those that are genuinely implicit or implied, and those that are really fabricated by judges (perhaps legitimately). It draws on the philosophy of language (particularly the branch known as “pragmatics”) to show how contextual evidence of law-makers’ intentions can not only disambiguate but enrich the express meanings of legal provisions, especially when they include ellipses, and also reveal presuppositions, implicatures, and implicit supplementations and qualifications. It then considers the propriety of fabricated implications, which common lawyers seem to acknowledge by referring to words being “implied into” provisions when “necessary” to give effect to the provisions’ purposes. Two different kinds of necessity are discussed. After criticising Aharon Barak’s theory of constitutional implications, based on supposedly “objective purposes”, the chapter concludes by affirming the dependence of inexplicit content on authorial intention.
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Publisher: Cambridge University Press
Print publication year: 2018

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