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45 U.W. Austl. L. Rev. 1 (2019)

handle is hein.journals/uwatlw45 and id is 1 raw text is: 2018 WINTERTON LECTURE CONSTITUTIONAL INTERPRETATION JAMES EDELMAN* I INTRODUCTION In Moliere'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. Like Monsieur Jourdain, many lawyers adopt this method without knowing it. The basic point of the theory considered here is that the core of constitutional interpretation involves a theory of language. As a theory of language it is not limited to the words of a Constitution. The same approach is taken when we try to understand the meaning of any words. The context might differ but the primary *Justice of the High Court of Australia; Adjunct Professor, University of New South Wales, University of Queensland, and University of Western Australia. This is a revised and edited version of the 2018 Winterton lecture hosted by the University of Western Australia. 1 Jones (trans) Moliere, The Middle Class Gentleman (Le Bourgeois Gentilhonue), 2008, Act II, Scene IV, available at <http://www.gutenberg.org/files/2992/2992-h/2992-h.htm>. 2 Professor Peter Johnston, who died in 2014, was a distinguished lawyer and academic, being associated with the University of Western Australia Law School for more than 50 years. See Robert French, 'Peter Johnston's Contribution to Public Law in Western Australia' (2015) 39(2) University of Western Australia Law Review 11.

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