“WHAT CANNOT BE DONE DIRECTLY CANNOT BE DONE INDIRECTLY”: ITS MEANING AND LOGICAL STATUS IN CONSTITUTIONALISM
| Date | 01 May 1966 |
| Published date | 01 May 1966 |
| Author | D. K. Singh |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb00736.x |
"
WHAT CANNOT
BE
DONE DIRECTLY
CANNOT BE DONE INDIRECTLY
"
:
ITS MEANING
AND
LOGICAL STATUS
IN CONSTITUTIONALISM
VAST
problems of a legal nature
are
posed in the observance
of
prohibitions and limitations imposed on legislative powers in a
federal state where the legislative jurisdiction is divided between the
central and regional governments; similar problems are also likely
to arise in a unitary state having
a
written constitution,
e.g.,
the
South Africa Act of
1900.
Presumably the solution to such prob-
lems has to be found in the working of judicial machinery, courts
being the watchdogs
of
constitutional provisions; hardly anyone
today would deny the role played by courts in the growth and
development of constitutionalism. In the judicial process are
involved a set of
"
unwritten
yy
rules for the guidance
of
judges in
the undcrstanding, what is known as interpretation
or
construction,
of
''
written
')
laws including written constitutions. Such rules are
frequently resorted to in determining the validity of laws by refer-
ence to the provisions of a constitution. One
of
such rules is that
if
a
legislature is prohibited from doing something, it may not do
so
even under the
'(
guise
or
pretence
')
of doing something that
appears to be within its lawful jurisdiction; a legislature may prima
facie purport to act within the limits of its powers, yet
it
may in
substance and reality
be transgressing those powers, their pur-
ported exercise being merely
a
"
guise
or
pretence.'' This rule may
broadly be explained as the observance
of
"
good faith
yy
in the
exercise of legislative powers, and it is implied in the operation of
the maxim
"
what cannot be done directly cannot be done indir-
ectly."
It
may, however, be stated that the force of the maxim in
general depends on
a
large number of variants from the personal
outlook of judges to the terms in which powers and prohibitions are
framcd.
It
is
also likely to vary greatly
as
between different
branches
of
law; in the field of public law the maxim may fmd its
application in administrative cases, but for the most part they do
not involve the analytical difRcultics of constitutional cases being
more readily related
to
factual
problems of
"
good faith." More-
over,
it
is
rarely that such an issue can be isolated as the only and
the decisive one. Nevertheless, one could with reasonable certainty
Pick out examples in which the maxim,
or
a principle similar to
it,
was argued
or
could reasonably have been argued and applied-
whcre it
was
in some form
or
another an important issue.' In this
1
See
g!Ferally Singh,
"
What Cannot
be
Done
Directly Cannot
be
nono
Indir-
(196&69)
99
A.L.J.
874,
(1960-80)
99
A.L.J.
9.
For
the operation
of
octly
278
VOL.
29
10
274
TEE
MODERN
LAW
REVIEW
VOL.
29
paper
an
attempt is made to understand the meaning of this maxim
and work out its logical status
in
constitutional contexts.
A.
THE
MEANINO
OF
TIIE
MAXIM
I
The maxim itself contains a number of ambiguous terms
or
terms
having blurred edges. By the time these are analysed and their
permutations and combinations taken into account, the resulting
variation in meaning is sumcient in itself to explain the apparent
conflicts between decisions.
A
linguistic philosopher could probably
take this type of analysis very far, and the following discussion
is pitched only at the
‘‘
common sense
”
level.
It
is proposed here
to take the main terms
of
the maxim
seriatim.
‘‘
What
”
This is the subject of the maxim and in the present context
it
refers to some legal act which has to be
characterised.
In
a
constitutional setting,
“
what
”
must be expanded into
a
legally
significant act speciiled in
a
constitution which contains positive
statements laying down propositions as to acts
or
forbearances, and
it
is approved
or
disapproved as being consistent
or
inconsistent with
those propositions.
However, some vagueness
or
ambiguity always exists
as
to
the meaning
of
words
or
phrases and to that extent there is likely
to be
a
certain amount
of
indeterminacy in testing the validity
of
statutes. To deal with
this
“
open-endcdness
”
courts have resorted
to
6‘
supra-constitutional
”
principles and sought guidance
in
com-
mon law
or
natural law
or
some such other concept.2 However,
such principles
or
concepts are related to the
‘(
ideology
”
or
‘(
public opinion
”
reflecting social, economic
or
political attitudes
prevailing in
a
community.
As
these factors undergo
a
change with
the times, the meaning
of
words and phrases which are to be
understood by reference to those factors also undergoes
a
change.
Thus
no
interpretation could be decisive
for
all
times.a
Then characterisation of
‘‘
what
’’
assumes that
a
certain mean-
ing can be given to constitutional provisions and its validity
the
moxim
in
articulor juriedictione
eee
Singh,
”
Whnt Connot
be
Done
Directly Conn$\e
Done
Indirectly:
A
Studx
of
the South
African
Conetitution
in
Retroepect
Whnt
Connot
be
Done Directly
lion Conetitutionol
Low
2
See
Cooley,
Constitutional
Limitations
(8th
ed.),
Vol.
I,
pp.
342544;
Jonee,
IIistorical
Introduction
to
the
Theory
of
Law
(1040),
p.
184.
In
the United Stotee courte’ function
in
the
hendling
of
“
police power
”
caeee
ie
that
of
on
orbitrol body:
me
Corwh,
The
Constitution
af
What
It
Means
Todoy
(1064),
p.
Cia;
in
Conodo
a
“
prncticnl bueineee
eenee
woe
once
token into nccount
in
finding
o
bill
ultra oireu:
Att.-Gen.
for
Alberta
V.
Att.-
Oen. for Canada
1939]
A.C.
117
at p.
132.
8
See
Levy,
An
In
E
roduction
to
Legal Reasoning
(1061),
pp.
51-104.
Neo
rofer
to Juetice
Holmea
in
Loclrner
V.
New
York,
198
U.S.
45
at pp.
76,
76
(1905).
19691
Publio
Law
430;
Cannot
be
Done
k
ndirect!,y:
Some
Illuetrntione of it8 Operotion
in
the Auetrn-
(1063) 6
J.I.L.I.
488.
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