Jonathan Sumption has always been more than just a lawyer. For many years he was the brilliant QC and then supreme court justice who somehow found time on the side to write a definitive, multivolume history of the hundred years war: a true Renaissance man. Over the past 12 months he has emerged as a very different sort of public figure: the take-no-prisoners lockdown sceptic. He gained recent tabloid notoriety by telling Deborah James, who has stage 4 bowel cancer, that her life was “less valuable” than that of others with longer life expectancy. Sumption claims that his words were taken out of context, though as a historian he must know that we don’t always get to choose the context in which our words are read. It is certainly a case study in how quickly one sort of reputation can morph into another.
This collection of essays, based on speeches Sumption has given over more than a decade, tries to pull the different sides of his intellectual persona together. Though law is their unifying theme, he begins with reflections on history and ends with a blistering attack on the government’s draconian response to Covid-19. It is as a historian that he is at his most urbane and appealing. A believer in the power of history to broaden our minds and constrain our hubris – he says that the world would be in better shape today if Woodrow Wilson, US president 100 years ago, had been a historian rather than a political scientist – Sumption also manages to celebrate his status as a gentleman amateur among the professionals. How, his friends ask him, have you managed to write all those books while doing all that law? By not being an academic, is his answer. The professionals are far too busy being academics to have proper time to reflect.
Sumption’s historical theme, if he has one, is that the most ambitious schemes often have the most unfortunate consequences, whereas stable institutions invariably come from more modest beginnings. In a brilliant essay on the overselling of Magna Carta, he punctures that document’s pretensions to be a grand statement of principle, rather than a piece of hard bargaining from an unsavoury crowd of self-interested opportunists – “a group of muscular, conservative millionaires from the North of England”, as he calls them. He insists Magna Carta is more interesting for what “people wrongly believe it says” than for what it actually does say.
Sumption is also a skilled debunker of unthought-through plans drawn up with the best of intentions. He opposes moves to introduce more transparency into the world of state secrets, not because he doesn’t want to know what’s going on – as a historian, he longs to gain access to the room where it happened – but because he believes that humans will always find ways to hide what they don’t want to be known. Telling politicians that their decision-making will be made public only drives them to take those decisions in places where no one is watching. Transparency does not breed openness; it breeds paranoia.
This sense of historical perspective gives him a detached vantage point for discussing some current political controversies. He writes about Scottish independence and the fate of the union with a nice sense of irony and remarkably little agitation, given what might be at stake. He is drawn to the fact that the UK, unlike most European states, had “unemotional origins”. It was built on economic advantage and political compromise, not religious zeal or high principle. The problem with promoting the union today is knowing how to defend something that has so little emotional heft behind it. Sumption is no fan of Scottish nationalism, which he considers a recent contrivance. But he knows that history does not always belong to the reasonable. Sometimes it goes the way of the people who make the most noise.
He is even more even-handed when it comes to Brexit. Though a remainer – which is slightly surprising given his other political positions – Sumption fully understands what motivated the other side. He is scathing about the idea that the referendum was won by racists peddling propaganda and lies. It was an argument about the value of sovereignty over the pull of practicality, and though Sumption prefers pragmatism to principle, you sense he is not too upset to see principles sometimes gain the upper hand. His argument for the UK to be part of the EU is simply that “Britain will be dominated by the European Union whether we belong to it or not”, so we might as well have a voice in its decisions. He also believes that the future belongs to internationalism, not because of what it stands for but simply because of what we all face. Problems such as climate change, which require international cooperation, mean that at some point “we are going to have to develop international structures for making collective decisions in a way that national electorates find legitimate”. Since we have no choice, we might as well get on with it.
All this reasonableness, however, means that what really stands out is when Sumption loses his cool. One question about which he cannot contain himself is the pulling down of statues and the attempt to airbrush the past, which he considers “irrational and absurd”. “What has happened has happened. It will not unhappen, however angry we are about it.” But people who pull down statues are not trying to change the past, simply to change how we commemorate it in the present. Sumption, who spends much of this book arguing for the deep, complex, intractable hold of history, seems to decide that on this issue it is vulnerable to a bit of contemporary agitation. Why so sensitive all of a sudden? He reminds me of the Oxbridge alums of a certain generation who are forever complaining about “safe spaces” and growing intolerance in universities. Students should be forced to listen to views that make them uncomfortable, they insist. Yet they seem unable to listen to views that make them uncomfortable. If they hate safe spaces so much, by their own logic they should be forced to put up with them.
But where Sumption really goes overboard is when it comes to Covid-19. He describes the government’s attitude to law enforcement over the last year as “my definition of a police state”. He calls the criticism faced by lockdown sceptics such as himself as “the authentic ingredients of a totalitarian society”. Not much sense of historical perspective here. He also argues that, with the healthy and the young suffering, “the unequal impact of the government’s measures is eroding any sense of national solidarity”. Any? Some, maybe, but I still see a surprising amount of national solidarity from where I’m standing.
Worse, Sumption seems to have completely lost the historian’s sense of the counterfactual. If we hadn’t locked down, and if many more had died, the pressure on the government to act would have grown and the threat to the things Sumption values – freedom of choice, personal assessment of risk – would have been even greater. He despairs of the fact that public opinion seems set on putting safety first. But given that is who we are – and for that reason, comparisons with past pandemics have very little relevance for what is possible now – democratic governments had relatively little freedom of manoeuvre. On this issue he sounds much more like a sclerotic judge than an urbane historian. But whatever else he is, he is no politician.
• Law in a Time of Crisis is published by Profile (£16.99). To order a copy go to guardianbookshop.com. Delivery charges may apply.