Retired Supreme Court judge believes we have no moral obligation to obey the law. Jonathan Sumption was once the archetype of the system – a brilliant barrister who represented the government at the Hutton Inquiry, a Supreme Court judge, a supporter of the Remain campaign and an esteemed historian of the Hundred Years War. But then came Covid.
In the past year, his outspoken criticism of foreclosure policies has made him something of a renegade. It’s a development that puzzles him, because in his view, his opinions have always been mainstream liberal, and it’s the world around him that has changed.
During the course of our conversation, the retired judge does not hold back. He claims that it is becoming morally acceptable to ignore Covid regulations and even warns that a campaign of “civil disobedience” has already begun.
Below you can hear what he has to say:
About civil disobedience
“Sometimes the most public-spirited thing you can do with despotic laws like these is to ignore them. I think if the government persists long enough with locking people down, depending on the severity of the lockdown, civil disobedience is likely to be the result. It will be discreet civil disobedience in the classic English way – I don’t think we’ll be taking to the streets waving banners. I think we’ll just calmly decide that we’re not going to pay any attention to it. There are some things to pay attention to: You can’t go into a store when it’s closed. On the other hand, you can invite friends for a drink no matter what Mr. Minister says. People already do that to a certain extent.
“Everyone will have a different threshold. But I think in the eyes of a lot of people who oppose lockdown and some people who support it, we’ve already reached that point.”
The ethics of breaking the law
“I think it’s sad that we have the kind of laws that people with a sense of citizenship may have to break. I have always taken a position on this that is probably different from most of my former colleagues. I don’t think there is a moral obligation to obey the law… You have to have a high degree of respect, both for the goal the law is trying to achieve and for the way it was achieved. Some laws invite transgression. I think this is the case here.
The renunciation of civil liberties
Thomas Hobbes believed in the absolute state – it didn’t have to be a monarchy, but it had to be absolute. He said that there was nothing, apart from killing people, that the state had no right to do. He was, shall we say, not a supporter of liberty. This is because of his experience with anarchy, which resulted from the Civil War in England. Hobbes believed that we surrender our liberties unconditionally and permanently into the hands of the state in return for security. Now this is a model that has been almost universally rejected since the emergence of a recognizable form of modern liberalism in the mid-19th century. But in the current crisis, we have tended to fall back on it. And I think that’s a very striking and very sinister development.
The dangers of public fear
John Stuart Mill
“John Stuart Mill regarded public sentiment and public fear as the chief threat to a liberal democracy.”
“The tendency would be for it to influence policy in a way that reduces the island within which we are entitled to control our lives to almost nothing. That’s what he saw as the great danger.”
“It didn’t happen in his lifetime; it happened in many countries in the 20th century, and it’s happening in Britain now.”
The fragility of democracy
“Democracy is inherently fragile. We have the idea that it is a very robust system. But democracies have been around for about 150 years. In this country, I think it’s fair to say they’ve been around since the second half of the 19th century – they’re not the norm. Democracies were considered inherently self-defeating forms of government in ancient times. For, according to Aristotle, democracies naturally turn into tyranny. Because the people will always fall for a demagogue who makes himself absolute ruler….
“Now it is quite remarkable that Aristotle’s gloomy predictions about the fate of democracies have been falsified by the experience of the West since democracy began. And I think one has to ask why this is so.”
“In my view, the reason is this: Aristotle was basically right about the tendencies, but we have managed to avoid them through a common political culture of restraint. And this culture of restraint, because it depends on the collective mentality of our societies, is extremely fragile, quite easy to destroy and extremely difficult to restore.
About being a liberal
“I regard myself as liberal with a small L. Until the Covid outbreak, that was a very middle-of-the-road-position to be in. Since the outbreak, it’s becoming controversial, even in some people’s mind extreme. This is, I think, an indication of how far our national psychology has moved.”
About what the government should learn
“My first suggestion is that governments should not treat information as a tool to manipulate public behavior. They should be calmer than the majority of their citizens; they should be completely objective. My second lesson would be that governments dealing with scientific issues should not be influenced by a single faction of scientists. They should always check what they are told, just as, for example, judges check expert opinions by producing a counter-expert and finding out which set of views fits best.”
About his critics
“I would have much preferred if the kind of arguments I have been making over and over again for the last year had been made by anybody else. Those colleagues or former colleagues who disapprove of what I have done have a very good point. But there are some issues that are so central to the dilemmas of our time, that are so important, that I think you have to be willing to stand up and be counted.