The abandoning of the ‘constitutional concept’
Clause 1 of the IGC mandate for the EU’s proposed ‘Reform Treaty’ states: ‘The constitutional concept, which consisted in repealing all existing treaties and replacing them by a single text called “Constitution”, is abandoned.’
This phrase has been reiterated time and again in defence of the decision to deprive the British people of a referendum on the matter, despite around 96% of the original Constitution being incorporated into the new Treaty. Exactly like the Constitution, the Reform Treaty is not a final settlement, because it was never intended to be. It is a basis for evolution towards perpetual deepening integration – ever closer union, which was declared in the preamble to the Treaty of Rome.
It is time to debunk the phrase, for it does not say that the Constitution is abandoned, and neither does it state that the intended legal effects of the Constitution are abandoned. It is the ‘concept’ which is abandoned, and it is therefore the concept of ‘concept’ which needs to be expounded.
On the meaning of ‘concept’ as a theoretical term, from standard philosophical usage, it is usually either (i) an intentional content of a mental representation structure, or (ii) an internal physical structure in the brain that intrinsically has or determines such a content or a worldly extension. In the first case, a concept is an abstract object (an intention); in the second, it intrinsically relates to some external object or set-theoretic construct that it is ‘true of’. The term is the modern replacement for the older term ‘idea’, stripped of the latter’s imagist associations, and thought of as more bound up with language.
A ‘concept’ creates or constitutes its own world. The meaning of concept is revealed through its relation to other concepts. The basic meaning of ‘concept’ is an idea that can be applied to many ‘objects’: it is an idea which is universal across a type or genre, and not particular to an instance in time. It is abstract, signifying a classification by virtue of common features. And it is general in its extension, identifying various particulars that satisfy conditions for class-inclusion.
Kant drew the important distinction between ‘things in themselves’ (noumena) and things as we perceive them (phenomena). The ‘world that is’ informs our theories, but our understandings of it are always human concepts and constructs. On the Kantian view, a concept is a product of the understanding operating on empirical content supplied by the sensory faculties. That which appears to be the same will be of one concept. Thus a concept has a stable meaning associated with its object-class’s essential properties. It is these properties which render it of the same concept. The concept is a unity of rule that determines all that is manifold in sensory intuition of objects and limits it to conditions that make possible a conformity to type.
It is a fundamental contradiction to insist that the constitutional concept is abandoned, when everything that constitutes the Reform Treaty is of the same object-class as the ‘abandoned’ Constitution. That which constituted the Constitution also constitutes the Reform Treaty: the latter is therefore manifestly of the same concept, ergo Clause 1 of the IGC mandate is insidious deception.
Interestingly, whether a treaty or a constitution, the German word for ‘treaty’ – grundvertrag – displays clear kinship with that for constitution – grundgesetz. The language establishes that they are of the same foundational concept. A change of name does not facilitate the deception in Germany at all.