Former Supreme Court Justice Lord Sumption gave the 2019 Reith Lectures, covering the relationship between the law and politics.
Richard Ekins, Head of the Judicial Power Project and co-author of Lord Sumption and the Limits of the Law, responds with this series of commentaries on the lectures.
Questioning Law’s Empire
Judges are ever more significant in our public life. This was true before the Brexit process began and it will remain true even if the UK leaves the EU. Courts, domestic and European, have come to exercise ever more authority over an ever wider range of public questions. For some judges and lawyers, this is a development in which to delight. Others are less enthusiastic, doubting the wisdom of reposing to courts questions that ought to be decided by other means, and especially by politics. These doubts come into sharp focus in this year’s Reith lectures, given by Jonathan Sumption, a distinguished medieval historian, barrister, and Justice of the Supreme Court from 2012 to 2018. The first lecture traces “Law’s Expanding Empire”, outlining how and why the domain of law, and the courts, has come to reach so widely.
Representative Politics and the Limits of Law
In his second Reith lecture, “In Praise of Politics”, Jonathan Sumption aims “to make the case for the political process, with all its imperfections.” He develops a forceful argument for the capacity of representative politics to secure political legitimacy and elucidates, in sharp contrast, the limits of law as a technique to restrain majority rule.
Sumption is no radical democrat. Even more than his first lecture (on which I commented elsewhere), this second lecture is at times ambivalent about democracy. It opens with the premise that “In a democracy, the state… is ultimately in the hands of electoral majorities”, which gives rise to the dilemma of how to “control the potentially oppressive power of democratic majorities without undermining democracy itself”. This framing obscures, it seems to me, the truth that control of the state by electoral majorities is not the default but is a hard-won, precarious political achievement. Quite how this control should be exercised is obviously vital. Democracy changes who it is that should govern, not what it is to govern. The exercise of self-government should involve the people participating in government that is capable of securing the common good.
Human Rights and the Morality of Law
In his third Reith lecture, “Human Rights and Wrongs”, Jonathan Sumption examines international human rights law, “the main battleground between law and politics”. His strategy is to consider the nature of rights before explaining what human rights law requires of judges and pointing out how this threatens democracy. It is a powerful argument, but may in the end understate the problems with human rights law.
The idea that there are inalienable rights which human beings enjoy by virtue of their humanity is an old one, as Sumption points out, noting Blackstone’s recognition of “natural rights”. The problem, he maintains, is that it is not easy to determine “which rights are inherent in our humanity, and why”. Sumption takes Hume to have refuted natural law and he concludes that rights “are the creation of law, which is a product of social organisation, and is therefore necessarily a matter of political choice.” I would say that this is true for human rights law, but not for human rights properly understood, which are moral standards to which law should answer and which the law should help secure and instantiate. Sumption goes on to say that the assertion that some rights are fundamental is “a personal moral judgment that some rights ought to exist because they are so fundamental to our values and so widely accepted as to be above legitimate political debate”. The assertion only works, he says, for rights that “are truly fundamental and generally accepted”, which he takes to mean “rights not to be arbitrarily detained, injured or killed” and “rights without which a community cannot function as a democracy”. Everything else is a matter of reasonable disagreement.
Constitutional Lessons from America
In his fourth Reith lecture, entitled “Rights and the Ideal Constitution”, Jonathan Sumption turns to the American experience of struggling to reconcile democracy with rights adjudication. It is a cautionary tale, illustrating some of the damaging political consequences of relying on courts in an attempt to ward off majoritarian tyranny.
The lecture opens by noting and quoting Alexis de Tocqueville’s observation, in the 1830s, that American lawyers had become the new aristocracy, united in contempt for public opinion and serving as “the most powerful, if not the only counterpoise to the democratic element of the constitution”. For Sumption, this is not necessarily a criticism. He recalls his argument, articulated especially in his second lecture, “that democracies depend for their survival on their ability to mitigate the power and the impulses of electoral majorities”, arguing that representative politics is a more effective technique to this end than is judicial enforcement of legal restrictions on legislatures. Here, as throughout this lecture series, an old-fashioned liberal sensibility is on display, in which democracy (or at least the unruly temper of the people) is a problem to be managed.
Reflections on Democracy’s Foundations
In his fifth and final Reith lecture, “Shifting the Foundations”, Jonathan Sumption brings to a conclusion his reflections on “the decline of politics and the rise of law to fill the void”. The lecture encourages us to resist calls for a written constitution, calls which, Sumption says, “mark the extreme point” of “our persistent habit of looking for legal solutions to what are really political problems”. He makes the case instead for the merits of our historic constitution and for efforts to shore up the political foundations of our democracy.
Sumption notes that a written constitution would almost certainly expand the constitutional role of judges and that the point of every scheme for such has been to cut down legislative power. He reiterates his scepticism “about claims that our system of government can be improved by injecting a larger legal element into it”. I share the scepticism. Of course, not all legal changes are made equal. The devolutionary settlements, which the lecture goes on to praise, involve change to constitutional law, and expand the jurisdiction of the courts in important ways, but do not transform the constitutional balance between political and legal authorities. The key question, as Sumption implies, is whether legal changes disable or dilute legislative power and parliamentary democracy.