John Adams, the second president of the United States, concluded that “democracy never lasts long. It soon wastes, exhausts and murders itself”. This observation begins the opening essay in The Challenges of Democracy and the Rule of Law.
The author of this collection, Jonathan Sumption, has served as a member of the Supreme Court of the United Kingdom and has written a five-volume history of the Hundred Years’ War. The scale of his achievements is remarkable and informs this timely and stimulating collection of essays.
His recent public contributions have centred on the role of courts in democracies, where he argued that judges have assumed a decision-making role that has undermined the legitimacy of ministers and of parliament.
Sumption is also a notable critic of the pandemic public health regulations. He contended that the British state had exercised excessive powers over personal lives that was unjustified by the public health risk.
A Time Outworn by Val Mulkerns: a sunlit novel, with shadows
Frogs for Watchdogs by Seán Farrell: Tremendous debut set in 1980s Co Meath floats free of constraints
A breakthrough era for women’s writing, from Edna O’Brien’s risks to JK Rowling’s Harry Potter debut
Jonathan Sumption’s The Challenges of Democracy: Strong arguments on the political consent required to maintain order
This book follows Trials of the State, and Law in a Time of Crisis. All these works analyse the legitimacy and effectiveness of the rule of law and of political decision-making. These essays examine the future of the democratic state, the role and rule of law in our lives and debates on freedom of expression.
Sumption is very clear on the role of politics. It is “to accommodate divergent interests and opinions among imperfect, disputatious and generally self-interested human beings, in order to enable them to live together in a political community without the systemic application of coercion”.
While describing law as a “priestly craft”, he warns against pursuing moral ideals and aims through the making of law. This is because of the importance of consent from citizens and voters in bestowing legitimacy on the creation of the rules within a democratic society.
‘If we dispense with collective consent in pursuit of a nobler morality, we will end up with institutions that dispense with consent in pursuit of other ends that we may regard as utterly ignoble’
— Jonathan Sumption
The opening essays, under the subtitle Politics and the State, justify the purchase of this book. They are provocative, even dark, and very wise.
The author contemplates the future of democracy, warning that western democracies have “lost the capacity to identify common premises, common bonds and common priorities that stand above our differences”.
This is because of the risks of economic insecurity, intolerance and fear.
Low economic growth and stagnating standards of living run the risk of undermining faith in democracies to deliver improved and more inclusive economic outcomes.
Sumption is most prescient in analysing the impact of fear on the role of the modern state. He contends that “the more frequent the perils from which we demand protection from the state, the more frequently will those demands arise”.
This is a reflection on the many challenges, from climate change to artificial intelligence, that are growing in scale and frequency and can only be managed by the state. No other economic or political actor has the power or authority. Voters may resent or be unhappy with the state, but they need it to do more.
Finally, more familiar concerns on the impact of polarisation on support for decision-making by democracies are considered.
These issues are explored in essays on the politics of the United Kingdom and Hong Kong. The author, just about, manages to remain optimistic.
Other works consider the role of law in democracies, with a particular reference to the international dimension to important legal issues.
This is familiar territory for the author, and he makes his arguments elegantly. Decision-making through our courts, particularly on sensitive social matters, creates the risk of undermining the political consensus on the role of the judiciary.
The further risk is that the role of the state is reshaped into a role that citizens are dissatisfied with, further widening distrust between the voter and their government. Sumption identifies case law emitting from the European Court of Human Rights and the European Union as particular sources of such risk.
He warns that “If we dispense with collective consent in pursuit of a nobler morality, we will end up with institutions that dispense with consent in pursuit of other ends that we may regard as utterly ignoble.”
These risks merit serious consideration. However, there is another side to these arguments that should be acknowledged.
Courts have been the bulwark against laws that excessively diminish personal liberties and freedoms. Judges implement the legislation that governments draft and parliaments accept, amend or reject.
The institutions of the European Union, including their judges, wield powers given to them by parliaments. The use of these powers is also vigorously contested.
The Challenges of Democracy is absolutely worth the time and consideration of any reader concerned about the future of democracies and the nature of political consent that is necessary to maintain cohesion and order within free societies.
The arguments will not receive unanimous agreement. However, that they are so powerfully argued points to the strength of this work, not a weakness.
Paschal Donohoe is the Minister for Finance and President of the Eurogroup
