In his new book, Jonathan Sumption explores the different components – legal, institutional and cultural – that allow democracy to flourish
The Challenges of Democracy and the Rule of Law (Profile Books) by Jonathan Sumption
The theme of Jonathan Sumption’s new book is a weighty one. Across this collection of 12 essays, previously delivered as lectures or published elsewhere, he addresses nothing less than the future of western democracy. Sumption is an intellectual powerhouse: a former academic historian, he became a high-flying barrister and was, from 2012 until 2018, a member of the UK Supreme Court.
This is a sweeping set of pieces, which canter over subjects from the suppression of dissent in Hong Kong to the contested character of British colonial history. Two themes bind the collection together. The first is the rule of law, where Sumption, drawing on copious amounts of case law, has mastery of his terrain. These essays ask what role law should play in a democracy and how the decisions of judges should interact with those of elected politicians. The second theme is broader and subtler. Laced into Sumption’s essays are reflections on the culture of democracy: the combination of institutions and attitudes that fortify our societies against democratic backsliding.
Notwithstanding its timeless themes, this is a timely book, particularly given Donald Trump’s return to the White House. “The United States is one of the world’s oldest democracies,” Sumption writes, “but its recent history shows how easy it is for even a sophisticated modern state to slide into autocracy.” The UK has experienced its own political turbulence: Boris Johnson was a populist adventurer who, Sumption argues, “showed a cavalier disregard for basic standards of decency and political integrity.”
But Sumption’s true concern is not the personalities involved but the deeper forces at play and the constitutional landmarks that reveal something about the current state of democracy. In a powerful essay titled “The President’s Crimes”, he examines the recent decision of the US Supreme Court to grant presidents immunity from prosecution for crimes committed in the course of their duties, a judgement he describes as “absurd”. The president is already immune from civil litigation, on the grounds that the risk of it may encourage overcautious decision-making. The court’s move to extend this to criminal litigation – threatening democratic principles “of an altogether higher order” – is, to Sumption, inexplicable.
It’s a mark of Sumption’s independent-mindedness that the criticism he levels against the European Court of Human Rights is essentially the opposite: rather than erasing legal accountability, he believes it is stretching the law’s reach into every corner of public life. In one essay titled “Mission Creep” he zooms in on Article 6 of the European Convention, which protects the right to a fair trial. He lambasts the judgement last year in the so-called “Swiss Grannies” case, in which the applicants argued that Swiss law was not sufficiently alive to the risk of climate disaster. Their claim was heard by three Swiss courts but failed because they were judged to have no personal stake in the issue beyond that of the public at large. But the ECHR disagreed, concluding that climate disaster was a direct concern for them. They were entitled to bring the case, and they won. The verdict outraged Sumption, who calls it an “abuse of Article 6”: a right created to protect access to justice was, in his view, used to overrule the fair proceedings of national courts.
The same judgement observed that “democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law” – a remark almost tailored to infuriate Sumption, and one which speaks directly to the arguments of this book. The rule of law is a necessary condition for democracy to exist, but it is not a sufficient one. Sumption knows that, and the true purpose of this collection is to explore the different components – legal, institutional and cultural – that allow democracy to flourish.
Sumption never loses sight of the big picture. Amid detailed legal analysis, he zooms out to remind us that “the world is full of countries with impeccable constitutions and courts to enforce them, which have been subverted perfectly legally by governments.” In these places, which serve as a warning to democracies everywhere, “the democratic label remains on the bottle but the substance has been poured out of it by governments” – “often”, he adds grimly, “with public support”.
This article is from New Humanist’s Summer 2025 issue. Subscribe now.
