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THE JACKDAW AND THE CROW

I am privileged to give this lecture not only because of the distinction of my predecessors at the lectern and the lustre of the Centre of European Law, though theseare undoubted, but also because this year falls the 175

anniversary of the foundation of King’s College London, inaugurated by the Duke of Wellington as a sturdy riposte tothat “godless institution in Gower Street”. Having a wife who taught theology at KCL,and having the honour to be a Judicial Visitor at UCL, I conceive that my spiritual andintellectual home must be about half way up Southampton Row; but wherever it ought to be located, my pleasure at this invitation is entirely undiluted.2

The proposed Treaty establishing a Constitution for Europe is the subject of much political controversy. Controversy as to its merits; controversy also as to thegovernment’s recent announcement of an intention to hold a referendum upon the issue,as I assume, whether the United Kingdom should ratify the Treaty. As a serving judge itwould be wrong for me to enter into any general discussion of these matters. However the political debate is to a considerable degree being conducted, and perhaps (as it getshotter) will increasingly be conducted, by reference to two concepts which belong to theoverlapping realms of law and political philosophy, and I think I may say somethingabout those. They are the concept of the State and the concept of a constitution. Thoughthey are common currency, the meaning of these ideas is not self-evident, and I do notthink they are always well understood. Yet I have seen no substantial discussion aboutwhat they mean. I suspect that issues of constitutional theory, some of them quiteintricate, are not a diet consumed with gusto by the popular media. I intend no gibeagainst the tabloids; I have not seen nor heard of any such discussion in the other newspapers, the broadcasting media, or indeed Parliament itself. If it has happened but Ihave missed it, I apologise to those concerned. In any case the vigour of political debate

2is often breathless, and inclined to concentrate on the pit, where the blood is to be spilt,rather than the sideshows. But here the sideshow is not really a sideshow at all. Thedebate is about whether the draft constitution is a good thing. The question cannotcoherently be discussed without an agreed understanding of what a constitution is; or atleast, without a prior debate along clear lines about what a constitution is; and I willoffer some reflections about that.3

In doing so I must also consider what is the meaning of a State. Ascertaining themeaning of a State is a necessary condition for ascertaining what is meant by aconstitution. That is because the central instance of a constitution is the constitution of aState; the State is ordinarily the constitution’s subject-matter. There may certainly beother kinds of constitution, or constitutions of other things, such as private clubs andsocieties, academic institutions, trade unions and charitable organisations. But theconstitution of a State is the paradigm case. It is for consideration whether the EuropeanUnion is an entity of a kind such that its claim to possess a constitution would be anintelligible claim, upon the premise that the term “constitution” here possesses itsordinary sense; or whether the claim only has meaning if some different sense isattributed to “constitution”.4

Further, the nature and meaning of a treaty, that is a treaty between States, must also beconsidered. We are confronted with a draft treaty said to establish a constitution for Europe. In looking at the question, what is meant by the establishment of a constitution by means of a treaty, we need to be clear about “treaty” just as surely as we need to beclear about “constitution”.5

So we have constitution, State, and treaty. There is another theme involved in all of these. It is that of sovereignty. Sovereignty is the possession of States, by whoseconstitutions it is expressed and by whose treaty-making powers it is exercised. Itsmeaning however is perhaps more elusive, or at least more controversial, than any of the

3other conceptions I am concerned with. Like a stinging nettle, it has sensitive edges.Constitution, State, and treaty look like ideas whose nature and whose reach may bedebatable, but the debate seems to belong more in the seminar room than the politicalchamber. I am not sure that that is truly so; but I think it is clear that the debate aboutthe nature of sovereignty is a good deal hotter. It belongs more obviously to the pit thanthe sideshow. It is for that reason especially prudent to keep in mind an elementary philosophical truth which, however, possesses considerable practical importance. It isthat the question, What is?, when asked about an abstract concept such as a constitutionor sovereignty, presents a linguistic trap. The question looks like an unloaded questionof fact, no different from What is that? when the questioner points to an animal or a plant or another thing that he has not seen before. But because you cannot see aconstitution, or a State, or sovereignty, the question What is it? must be understooddifferently. It is first an enquiry as to how the term is used in the language. What do wemean by sovereignty? This is a linguistic and historic form of enquiry. But the questionmay also entail a further enquiry: What

should

we mean by sovereignty? This is anormative exercise, whose outcome will depend upon matters of political and in the broadest sense ethical judgment and opinion. The trap is to confuse these two forms of enquiry – What do we mean? What should we mean? – one with the other.6

The scheme of this lecture is as follows. I will start with what is meant by the State.Then I will discuss sovereignty. After that, the nature of treaties; and after that,constitutions. Only then, towards the end, will I have something to say about the draftTreaty we are considering. For this I make no apology: the meaning of these variousconcepts is logically prior to any sensible discussion of the draft Treaty whose merits or demerits are, as I have said, necessarily outside my remit. As for the lecture’s title, theliterary reference will not have escaped this audience. I will gather it in at the end.

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Jackdaw

Speech By Lord Justice Laws on Constitution Treaty and the relevance of the EU treaties on British Law

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Category:	Research > Law
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Upload Date:	01/28/2009
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Tags:	legal constitution Treaty legal constitution Treaty (fewer)