The Challenges of Democracy and the Rule of Law

The retired Supreme Court judge Jonathan Sumption is one of the few modern British jurists to acquire any sort of profile beyond the courtroom. Aside from his formidable legal career, he is a distinguished academic historian, and more recently has become a frequent media commentator and public lecturer on a range of contentious legal and political issues. Since retirement, he usually dispenses with his title and is at pains to point out he is no longer speaking in any kind of judicial capacity. 

His new book is a collection of lectures and one original essay, grouped under the headings of democracy, human Rights, the place of international law, and freedom of speech. He approaches each from a perspective one might broadly call classical liberalism or ‘small–c’ conservatism. 

Sumption covers some fundamental, abstract questions of political philosophy, such as what democracy actually means, as well as real-world crises such as Covid-19. When the latter was unfolding, he remarked on the value of life and the role of government. In this book, he advances a more measured critique of governmental restrictions, while retaining his view that lockdowns were often unjustified. 

In terms of democracy, Sumption makes the obvious point that in modern societies it does not and cannot mean that every decision is decided by majority. Inevitably, it means citizens electing a group to make a vast array of decisions on their behalf. That in turn creates a political class dependent for their careers on politics alone, and a feeling among voters that politics becomes ever more remote.  

As to contemporary politics, Sumption exercises his ex-judicial freedom. He does not hold back on issues such as Hong Kong’s judiciary (from which he resigned in protest at the continued abrogation of rights – he calls the constitutional outlook there ‘bleak’); or the legal allegations against president Donald Trump, in respect of which he concludes: ‘The United States has never stood in greater need of impartial constitutional arbiters in its highest court, and has never been further from getting them.’ 

Few will agree with all of Sumption’s propositions, nor would he expect them to do so. One has the feeling of being in the company of an erudite and provocative thinker. The book is highly recommended. 

James Wilson FRHistS is an independent legal author. His most recent book is Lord Denning: Life, Law and Legacy (Wildy, Simmonds)