Trials Of The State

by Jonathan Sumption

A SUNDAY TIMES BESTSELLERIn the past few decades, legislatures throughout the world have suffered from gridlock. In democracies, laws and policies are just as soon unpicked as made. It seems that Congress and Parliaments cannot forge progress or consensus. Moreover, courts often overturn decisions made by elected representatives.In the absence of effective politicians, many turn to the courts to solve political and moral questions. Rulings from the Supreme Courts in the United States and United Kingdom, or the European court in Strasbourg may seem to end the debate but the division and debate does not subside. In fact, the absence of democratic accountability leads to radicalisation. Judicial overreach cannot make up for the shortcomings of politicians. This is especially acute in the field of human rights. For instance, who should decide on abortion or prisoners' rights to vote, elected politicians or appointed judges?Expanding on arguments first laid out in the 2019 Reith Lectures, Jonathan Sumption argues that the time has come to return some problems to the politicians.

Genres: Law, Politics, Nonfiction, History

128 pages, Paperback

Published March 5, 2020

About the author

The son of a barrister, Jonathan Philip Chadwick Sumption attended Eton then Magdalen College, Oxford, where he graduated with first-class honours in history in 1970. After being called to the bar at Inner Temple in 1975, he became a Queen's Council in 1986 and a Bencher in 1991. He is joint head of Brick Court Chambers and was appointed to the UK Supreme Court in 2011. He has written numerous books on history and is a governor of the Royal Academy of Music.

Reviews

[Liam O'Leary · Rating 3 out of 5]

February 2021 Reading Wrap-Up
I'm not too knowledgeable about modern law and politics in the UK, and recently returning here from Canada has made me curious. My cousin is a lawyer and recommended me this, and as an introduction to the main issues between law and politics in the UK this book is really great. Four essays addressing how the lack of a UK written constitution means a democracy requires a politically active nation to prevent lawyers writing laws that are not in the public interest. This is on the basis that contentious issues are moral conundrums (i.e. abortion and contraception) rather than those best left to specialists in the laws related to it. It's concise and important to the general issues creating division in the UK, but some people might want something that goes deeper and further. A great introduction and summary for the general public!

I can easily see why people will give this 4* and 5*, it's definitely a high 3* from me.

[Will · Rating 3 out of 5]

Rather like Dame Mary Beard's similarly short book on social issues, which I reviewed in miniature, Lord Jonathan Sumption spends over 100 pages of this dinky hardback telling readers what has happened and shouldn't happen in the making of our laws, and he devotes only a few words to telling us what should. The text is largely that of Sumption's BBC Reith Lectures in 2019. The intended audience is an educated but non-specialist public. You don't need a law degree to understand this book. The former judge's contention is that, to protect democracy, a resurgence of political activism is needed to fill a gulf in important political and moral decision making, which otherwise will be taken (and, according to the learned author, already has been) by his brother judges.

Chapter 1 is by far the most interesting, charting the law's expansion into more areas of life than ever over the last 50 years or so.

Chapter 2, "In Praise of Politics", never really takes off. Sumption seems to commence a defence of representative politics and insinuates that referenda are poor decision-making mechanisms, but falls short of pinning his colours to the mast.

Two chapters tell us why we don't need a written constitution and why human rights law should stop evolving, particularly in the Strasbourg Court. Wedged between them is a kind of cautionary tale, a chapter comparing the composition of the British state to the USA. Sumption's central argument in these chapters is that "you do not need to entrench values in the constitution if they are universally accepted. You only need to entrench them if they are controversial and therefore liable to be discarded by people with a free choice in the matter."

Ultimately this is a defence of the status quo. But not. Because Sumption is manifestly concerned about the growing discontentment with democracy. In particular, those pesky under-30s and climate change activists come under fire, whose values are apparently increasingly anti-democratic. Likewise, we learn that lawyers – not Sumption himself, of course – are often distrustful of the power of the populace. As a thirty year old myself at the time this book was published and an aspiring lawyer with an interest in the environment, I want to voice my so-called free choice in the matter... If there has been a failure to engage with politics since the 1960s, when political party membership began to dwindle, and if there has since been a tendency for judges to usurp law-making powers, it can hardly be surprising that subsequent generations like mine feel disenfranchised. Modern democracy has improved things over the last two centuries. But why would we wholly trust the politico-legal system that ushered in two world wars, sat quietly through genocides, wrecked the environment as we know it and gave rise to astonishing levels of corporate greed and inequality that have enabled the likes of Jonathan Sumption QC to get rich charging £8M for a single case? (His chambers, Brick Court, refuted this gross overstatement: he only earned £3M at most from his final case as a barrister.)

Now that he's retired, Sumption's cautions about the worrying stirrings of social and political discontent all feel just a bit too late.

When he finally gets around to a solution, on page 110 of 112, the "brain of Britain" (as the cover labels him), paints his vision for the future in only the broadest of strokes. It seems to require: the simple matter of abolishing the first-past-the-post electoral system; Britons engaging in a resurgence of grassroots politics to buck the almost worldwide trend of declining political party membership; Britain embracing coalition governments henceforth; and a turnaround from the "wholesale rejection not just of politicians but of the political process itself". That none of these outcomes seems remotely likely, and still leaves us with the political and legal vacuum that prompted him to write the book in the first place, does not deter Sumption from ending with a rhetorical flourish: when democracy dwindles away before our eyes, "the fault will be ours", he concludes. Speak for yourself! Supreme Court Justices who double as reputable academic historians might not have time for sci-fi, but I couldn't help hearing Senator Amidala lamenting that "this is how liberty dies" in Star Wars: Episode 3, having herself seen at close quarters the rise of the evil Sith Lords and done nothing to stop it.

Ultimately, Sumption embodies the very problem he so eloquently writes about. He notes that "a stable democracy requires a minimum level of public engagement with the political process." He also identifies the paradox that "annual surveys [...] show us to be a country with [...] a real interest in public affairs", yet "Hansard Society's latest annual Audit of Political Engagement records a marked rise in the number of people who say that they do not want to be involved at all in either national or local decision making". Without boasting an ounce of Sumption's genius, to me there seems a simple explanation: yes, people love to complain about politics; but no, they wouldn't dream of lifting a finger. People opt out of active politics for many and varied reasons: they think it's enough just to kvetch; they're afraid to offend; they don't have the time or financial freedom to opt in; they hear no intelligent voices within mainstream politics expressing views similar to theirs; or perhaps because the current system suits their interests very nicely. Sumption would like to see political decisions made by the electorate not by judges. That might be the reason he always veers away at the last moment from revealing his personal views on issues including Brexit, abortion and assisted suicide, declaring "I am not presently concerned with its merits". He might have needed to be careful speaking on the BBC; or possibly he feared activists might pore over his old judgments in an attempt to undermine them if he expressed any opinions. Whatever the reason for his apparent vacillation, however, Sumption proves himself just like most Britons whose engagement with politics begins and ends with idle chatter. Admittedly, when he talks politics, he does so from a more erudite and privileged vantage point than most. Alas, however, all his learning brings us no closer to any answers.

[Dipesh Mittal · Rating 4 out of 5]

thought-provoking

[jonathan luker · Rating 4 out of 5]

Thanks for the recommendation @rossplowman. I look forward to his updated take following recent constitutional/ legislative hijinks!

[Katherine]

Interesting to look at law and politics, and where the boundaries of each should lie. I'm sure a lot of this went over my head though

[S C · Rating 4 out of 5]

Sumption’s arguments are better read than heard (as they were in the 2019 Reith lecture series on which the book is based) I learnt as I found myself re-reading sections, somethings more than once.

It can be difficult to know where politics ends and law begins, or vice versa. Sumption deals with the tension between the two with unrivalled clarity.

[Paul Kuntze · Rating 4 out of 5]

This impressed me. Short and concise, a supreme court judge arguing decisively against the power of judges and for politics, and a very interesting angle on populism and the crisis of modern representative democracy. Very enjoyable, will keep me thinking for a while.

[Connor O'Brien · Rating 3 out of 5]

Lord Sumption has used this book to argue his views on human rights being unnecessary in a democratic society, in addition to judges often overstepping their boundaries and adjudicating on political issues. As an ex-Supreme Court judge, Sumption makes some interesting and valid points that have provided an alternative perspective I use to view fundamental rights and assess the legal validity of a matter the courts have been asked to adjudicate. Though, I believe this book provides no real insight, wisdom or food for thought. Sumption strikes me as a traditionalist reluctantly agreeing with a modernist legal system that reflects the, arguably, liberal morals of our society. Meanwhile, backhandedly saying, 'I suppose I like it, but it shouldn't be like that in a democratic state'. I believe he undervalues human rights and more importantly, the judiciary and that is apparent in this book.

[Lewis · Rating 1 out of 5]

The number of assertions and contradictions in such a slim book is honestly mind-blowing. The contents are interesting but not persuasive in the slightest unless you buy into most of what the author takes for granted/ glosses.

[Ellie · Rating 2 out of 5]

had SOME fun bits i enjoyed like sociology and law surround abortions but the rest was SO BORING i didn’t know what was happening🤞😛

[A.A. Ali · Rating 4 out of 5]

"Two and half millennia ago, Aristotle regarded democracy as an inherently unstable form of government, precisely because it was vulnerable to demagogues like these. The genius of western representative democracy has been to defy that for some two centuries. But for how much longer?"

"The candid citizen must confess that if the policy of government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, [...] the people will have ceased to be their own rulers" - Abe Lincoln


The thesis of this little book is relatively straightforward: People in a well-functioning, civilised society obey their governments not simply through perceived threats of force, but because of the perceived legitimacy of its political order. This legitimacy is found in the general acceptance of its decision-making process. The rule of judges, that is to say adjudication by judges on matters that should solely be in the purview of political institutions (i.e., the people and their elected representatives), undermines this legitimacy.

The first two chapters of this book, entitled "Law's Expanding Empire" & "In Praise of Politics" respectively, provide the backdrop for the authors subsequent arguments. The first chapter deals with the ever increasing reach of judiciary since the mid-18th century and it's causes. The second deals with the centrality and necessity of politics, and political parties, in any democratic society. Continuing with the theme of the first chapter, the second chapter also goes on to detail the increasing role the judges in resolving issues through judicial, not political resolution. Adopting Clausewitz's famous dictum, Lord Sumption writes that "law [has become] the continuation of politics by other means".

The third chapter deals with European Convention of Human Rights and the Strasbourg Court. It contends that questions of rights (beyond the fundamental one's) are complex social and moral matters that need to be contended with society-wide (i.e., through the democratic political process), not through the adjudication of unelected representatives. The author goes on to detail how the Strasbourg Court has empowered itself beyond its initially conceived limits, and that it has taken it upon itself to decide on certain issues that squarely fall in the political domain (See: qualified convention rights and their exceptions). It also outlines how domestic courts, through recent legislation and membership to the EU, have been empowered to hear cases and make decision on issues that again should be decided upon by the people and their elected representatives. The role of judges is judicial application, not judicial invention.

The fourth chapter contends with the American system of constitutional supremacy, or what the authors calls the 'legal model'. He offers some criticism of it that I necessarily don't find myself agreeing with but, he also points out certain instances where the judiciary have empowered themselves, whether for good or bad, to adjudicate on matters that should fall outside their purview. The author brings up an interesting point that I would like to mention: abortion. He writes that he "suspects... that one reason why abortion remains so controversial in the United States is that it was introduced judicially" as opposed to through "extensive Parliamentary debate" in countries like the UK, where it was once equally controversial, but has become increasingly less so. An interesting observation.

The fifth and final chapter deals with constitutional reform (namely the establishment of written constitution) as a remedy to our current political ills. The author remains sceptical of this position and mounts an impressive defence of Britain's current constitutional arrangement. Concerning our political ills, he looks more squarely at declining political participation and reduced civic engagement, and offers, quite briefly, some solution.

All-in-all, a thought-provoking book that has changed how I view the role of the judiciary within our political (and thus, quite naturally by extension, in our social) world. Additionally, despite the authors impressive arguments, I still find myself remaining a constitutionalist. Moreover, I felt I learnt a number of interesting things from this short book such as: reasons for the increasing role of law in our lives; foundations of political legitimacy; the role undertaken by the Strasbourg Court; judicial attitudes and more.



[Solid 4 Stars]

[Xavier Tan · Rating 5 out of 5]

Observing that the courts are deciding on more issues that traditionally have been out of the law's hands (eg. matters of personal judgment), Sumption first sets out the benefits of the political process: representative democracy forms part of the solution to the 'tyranny of the majority' (the other solution is law) as representatives have an interest to "accommodate the widest range of opinion" and, as James Madison put it, are "less likely to sacrifice the true interests of the country to short-term considerations, unthinking impulses or sectional interests" (contra. direct democratic rule, where people have "no reason to consider any opinion but their own", eg. the Brexit referendum). In contrast, "Litigation is not a consultative or participatory process", one party wins and the other loses, and this puts severe limitations on courts deciding political issues.

Even concerning humans rights (where courts have expanded the reading of the express words in the ECHR and US Constitution, effectively "a form of non-consensual legislation"), Sumption opines that "identifying which rights are inherent to our humanity [is] essentially a matter of opinion" (apart from 2 groups of rights: rights without which "social existence is not possible" (eg. freedom from arbitrary detention and injury) and rights necessary to a democracy (eg. freedom of thought and expression)). Thus, as "there is room for reasonable people to disagree", they should be "confer[red] by collective political choice". One may argue that courts are better qualified to consider some questions of policy "because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner" (as Lady Hale did in Re Northern Ireland Human Rights Commission's Application for Judicial Review), but legislative policy is not a "purely technical question", but can involve "profound moral issue[s]".

I think the learned former justice is correct that political questions should not be decided by courts, but I am not sure that the only effective constraints on abuse of democratic power (i.e. the tyranny of the majority) are political, which "depend on active citizenship, on a culture of political sensitivity and on the capacity of representative institutions to perform their traditional role of accomodating division and mediating dissent." It is not great that Sumption points out that where the above no longer happen (as is the case in the US and to some extent, Britain), it "is a potential catastrophe in the making", but he does not forward any alternative, simply saying "there is nothing that law can do about it." While Sumption advocates for the British unwritten constitution (one of the benefits being that it is easier to incrementally amend the constitution and arrive at political compromises and solutions), I think that there is much merit to a written constitution, out of the hands of the simple majority, but which the judiciary should restrain itself from expanding. The constitution should also not be so hard to amend that it excludes political compromises entirely. Granted, this requires the courts to exercise self-restraint (if the courts wish to be activist, even a constitutional provision would not stop them), but if those who advocate for judicial intervention are right concerning the ability of courts, courts should be sufficiently dispassionate and learned to know when they do not have the technical expertise to weigh in on questions of morality, or other questions of policy such as finance, security, or defence.

[Steve Dragon · Rating 3 out of 5]

A stark book, opinionated and unafraid. In some ways, terrifying. Prophesying doom, analysing tragedy, provoking thought. The power here is brevity and clarity, a simple case that is well-presented and decently argued. It lacks depth, but makes up for it with lucidity. A thoroughly enjoyable and interesting read that I will be thinking about deeply before drawing opinions.

That said, certain bits felt a bit thin. Definition of human rights was a bit dicey, almost contradictory to some of the examples used. Though that is a judgement I will hold on till a second read, I can say that on closer examination the argument is not as obvious as presented. Well-written, though there were very specific bits where the structure lost me a little. Especially when contrast is presented across comparatives, it isn’t obvious at first that it is a case of contrast which makes for a few (isolated) jarring paragraphs.

And, of course, the scope is limited. This is a book unapologetically about the UK. Something to bear in mind.

So, read with a critical eye and think about what you are reading, but read it you should if you’re interested in law and politics.

[Gabby Wan · Rating 4 out of 5]

Lord Sumption makes the case that some issues should not be judicially resolved, but rather left to the hands of politicians in a democratic decision-making process, which he argues gives any decision arrived at more legitimacy. He also argues against having a written constitution for the UK, claiming that political/legal conventions upheld in the UK are sufficient.

The essays are well written, succinct and mostly persuasive, but I knocked 1 star off because I do not agree with Lord Sumption's conventionalist bias for the status quo, nor do I believe that moral decisions made by judges are any less legitimate than those by self-serving politicians within the Parliament, nor that what counts as fundamental human rights should lie in their hands when judgments usually offer much more comprehensive, intricate arguments than politicians, and thus are evidence of the rigorous, rational decision-making of courts. Lord Sumption also seems to have glossed over counterarguments in support of judicial legitimacy.

[Pravar · Rating 4 out of 5]

This short book, based on Lord Sumption’s Reith Lectures in 2020, considers the role of law within the constitution, issues of legitimacy and the differences between political and legal constitutions. Although many readers may instinctively disagree with Sumption’s libertarian perspective, this book is worth reading for the important questions he raises. Accordingly, it should be read with a critical hat on and is recommended to anyone interested in liberty and the British political process. Readers with some knowledge of the field and of the cases cited by Lord Sumption will, however, note a number of ‘straw men’ towards the start in particular, where complex arguments are over-simplified to make what are eminently contentious claims about the role of law in the political sphere.

[Leonor Dargent · Rating 4 out of 5]

Livro curto que se lê muito bem. O primeiro capítulo, sobre como a lei invadiu todos os campos da nossa sociedade e possíveis motivos para tal, é uma análise estruturada e inovadora. Infelizmente, os restantes capítulos fizeram-me sentir que o autor jogou de forma errada com os temas que decidiu aprofundar ou abordar superficialmente.
Ainda assim, considerei o livro bastante interessante, até porque desenvolve algumas teorias com uma certa desfaçatez verdadeiramente refrescante; não me considero uma pessoa "contra o politicamente correto" mas não posso deixar de me surpreender e apreciar quando um autor critica abertamente - e de forma fundamentada, com preocupações relevantes - o sistema europeu de proteção dos direitos humanos.

[Soubresaut · Rating 4 out of 5]

A grown up and literate booklet of stitched together lectures about the usurpation of political decision making by judges at the behest of special interest groups. A reasoned and thoughtful analysis with the insight one would expect from an academic historian and former Supreme Court Justice who was never really one of the gang. Sumption is smart enough to avoid prediction but pointedly asks if there are sufficient numbers of capable compromisers willing to engage in representative politics and outwit the zealots? He should also perhaps ask if there are sufficient numbers of judges willing to stick to the law and leave politics to the people and politicians.

[Ady Lam · Rating 2 out of 5]

To clarify, I'm giving this a 2-star review not because it's a bad book, but simply because I didn't really enjoy it. This is well-written with clarity and precision, and even at a few points interesting. However, I'm pretty sure I'm not the intended audience for this, as I have little to no interest in law or politics, so to me this was SO MINDBLOWINGLY MONOTONOUS that I was planning this review halfway through reading it. Please only read this if you're genuinely interested in law and its relationship with politics because it'll be a waste of your time.

[Rodrigo · Rating 5 out of 5]

Un argumento bien armado para mostrar al público general cómo la ley (y los jueces) está desplazando a la política al momento de resolver las diferencias al interior de nuestras sociedades. También se hace cargo de iluminar algunos de los problemas asociados al uso masivo de los DDHH. No es un libro técnico, no por eso menos valioso. Recomiendo las conferencias que le dieron origen (deben estar por ahí en la BBC)

[David · Rating 5 out of 5]

A truly interesting book. How justice is being called upon to take the role of a democratic system uncapable of compromise. A lived lesson on democracy, legitimacy, unaccountability and the failed promises of institutional reform. Particularly relevant for those willing to inderstand the current political crisis in Spain.

[Harry · Rating 4 out of 5]

Sumption’s concise yet powerful writing is one to admire. His arguments are well-orchestrated and balanced. My only criticism is that this book was almost a replica of his BBC Reith Lectures, only without the supplementary Q&A session and so while this is useful for better understanding his arguments, doesn’t go much further.

[Ömer Faruk · Rating 5 out of 5]

It's impossible not to be impressed by the former judge's ability to present the issues and take a critical approach towards them. He raises important questions that are going to be discussed throughout the 2020s. His language is plain and easy to follow. Strongly recommend it.

I should note that this book is useful for non-Brits to see the British point of view for public law.

[Ben Clark · Rating 5 out of 5]

Very interesting and thoughtful breakdown from his experience of how parliament interacts with law. Really detached from any ideology but a good analysis of various key issues such as Brexit, human rights, legal running of a country as opposed to political running and plenty of explanation and examples backing up his thoughts and ideas.

Pleasure to read.

[Joe Ryan · Rating 5 out of 5]

If you live in the UK or are interested in the UK, there is just no reason not to read this book. If that's not 5 stars I don't know what is. It's short enough to take no time at all and it articulates a whole lot, especially for people with 'no interest' in politics. Whether you agree or not it's worth reading.

[Sushil Goswami · Rating 4 out of 5]

A solid 4 for most of the book. It'd have been even better if the author had delved further into possible solutions for boosting public engagement with politics; only two pages are devoted to it, the last two.
Still, I certainly got a lot out of this slim volume, making me wish that Jonathan Sumption would continue the argument in more detail in another book. Retired, isn't he.

[Nirmalalalala · Rating 4 out of 5]

Agree with most opinions in this however, some are rather brave. Sumption claims FPTP is not the issue, however the coalition govt proves his point wrong. It is obvious that people have such distrust in political after the events that took place over the past years. Constitutional reforms are still required as the branches are still fussed, but the world doesn’t need another federalist regime.

[M · Rating 5 out of 5]

Introducing complex ideas and conceptions in an easily comprehensible way. The ideas of politics-society relationship, the expanding power of the courts and the potential consequences that this considerably recent occurrence may have are well developed.

[Samuel Beswick · Rating 2 out of 5]

Some interesting insight into the functioning (or lack of) of Law and Politics within our system. Felt as though much of the book went over my head, says more about my intelligence rather than the merits of the book.

[Aparna · Rating 5 out of 5]

A brilliant introduction on the relationship between the government and the courts in the United Kingdom. I particularly liked the perspective of how the concept of human rights has evolved over time.

[Meg · Rating 5 out of 5]

Mr Gould's reccs go harrrrrrrrddd
Bangin analysis on the contrast between the executive and judiciary
I thought the conclusion was a bit lack luster
But overall
Great read, super super good logic used throughout each argument is very easy to follow

The Gould slay