2018 Winterton Lecture Constitutional Interpretation James Edelman
2018 Winterton lecture Constitutional interpretation James Edelman Introduction In Molière's The Bourgeois Gentleman, Monsieur Jordain is learning from his philosophy tutor. His tutor explains the meaning of prose. Monsieur Jourdain asks his tutor, "When I say, 'Nicole, bring me my slippers, and give me my nightcap,' that’s prose?" His tutor replies, "Yes, Sir". Monsieur Jourdain responds, "By my faith! For more than forty years now I have been speaking prose without knowing anything about it".1 George Winterton was not like Monsieur Jourdain. The depth of his work was due to his awareness of the history and the philosophy of the language in which he was speaking. My late, and very dear, friend Peter Johnston2 was part of a small group of exceptional public lawyers whose members included George Winterton. Occasionally, after an off-the-cuff opinion from me, he would say, "I think George has written something about that". In his usual polite way, he was directing me to a far more sophisticated exploration of the history or theory of the issue by George Winterton. The area of law about which I will speak this evening is one about which George Winterton had thought deeply. That area is the interpretation of constitutional words. Although my focus is upon a basic dimension of interpretation of words in a written Constitution, I want to draw out the strands of an approach that has been taken by many judges in Australia and to explore its theoretical foundations. The approach is far from the only approach to constitutional interpretation. But it is useful to explore its foundations, and to see if it can be justified, because it is one that has been taken expressly by many judges and practitioners.
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