Jonathan Sumption, "The Challenges of Democracy: And the Rule of Law" (Profile Books, 2026)

Summary

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Podcast Summary: Jonathan Sumption, "The Challenges of Democracy: And the Rule of Law"

Podcast: New Books Network
Host: Dr. Charles Coutteo
Guest: Lord Jonathan Sumption
Date: December 26, 2025
Book: The Challenges of Democracy: And the Rule of Law (Profile Books, 2026)

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Episode Overview

This episode explores Jonathan Sumption's new book, The Challenges of Democracy: And the Rule of Law. In discussion with Dr. Charles Coutteo, Lord Sumption—a former UK Supreme Court justice, historian, and legal scholar—dissects the current pressures facing democracies, the evolving role of the rule of law, and pivotal controversies in constitutional government. The conversation traverses topics such as the fragility of democracy, the legitimacy of judge-made law, crises in party systems, and judicial activism, with special attention to climate change, the decline of US and UK politics, and events in Hong Kong.

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Main Discussion Points & Insights

1. Purpose and Structure of the Book

• The book compiles Lord Sumption's lectures, lightly edited for publication.

  “The book essentially reprints, with minor modifications, those lectures.” (02:41, Lord Sumption)

2. Fragility and Modern Challenges to Democracy

• Democracy is historically recent and geographically limited.
• Current decline in public faith is complex and multifactorial:
  • Collapse of traditional party systems
  • Rise of demagoguery
  • Disillusionment post-Brexit

  “Democracy is fragile… It’s vulnerable to changes of sentiment of the kind that we are currently experiencing.” (03:41)

The US as a "Flawed Democracy"

• The Economist Intelligence Unit demotes the US in its Democracy Index.
• Lord Sumption questions whether the US still qualifies as a democracy under current conditions:

  “I rather question whether The Economist would today rank the United States as a democracy at all.” (04:10)

Aristotle and Democratic Vulnerability

• Aristotle’s concern: susceptibility to demagogues promising sweeping change in exchange for power:

  “Democracies were vulnerable to demagogues who offered people the world in return for absolute power.” (04:40)

Climate Change: The Looming Democratic Test

• Climate action requires international coordination, but democratic accountability is nationally rooted.
• Populist temptations and political short-termism inhibit necessary, but unpopular, measures.

  “There will always be people who will be tempted to vote for a party that says it's all fake... reducing consumption... is unlikely to appeal to democratic electorates. Unless a catastrophe is imminent…” (04:59)

3. The Crisis of the Party System

• In the UK and beyond, there’s a collapse of the political center.
• Brexit fractured parties, particularly the Conservatives, splitting both liberal and Euroskeptic factions.
• The electoral “first past the post” system fails to represent the complexity of modern issues.

  “The voters are obliged to decide at election times which party they least wish to support, rather than which party they feel enthusiastic about supporting.” (06:11–08:37)

4. Presidential vs. Parliamentary Systems

• Presidential systems (e.g., US, France) concentrate dangerous powers in one office.
• Parliamentary systems ensure more collective accountability.

  “The President... has absolute control over the executive... the main constraint... is the judiciary, which the current President... has tamed.” (08:45)

5. The "Modern Tragedy" of Hong Kong

• Loss of civil freedoms and the rule of law under increasingly authoritarian Chinese rule.
• The 47 democracy activists prosecuted for exercising legal rights, which undermines basic law and justice.

  “If you believe in democracy in Hong Kong at the moment, you are likely to be prosecuted for a variety of offenses such as sedition… witnessing its degradation... is a very depressing experience.” (10:19)

On the Indefensibility of Recent Court Decisions

• The High Court's treatment of democracy activists is “legally indefensible” because their conduct was protected by the Basic Law:

  “If you have a political right conferred upon you by the Constitution, the suggestion that it’s a criminal offense… is quite absurd.” (11:45)

Why Sumption Resigned from Hong Kong’s High Court

• The legal system became too subordinate to Chinese leadership, especially after the 2020 National Security Law:

  “I considered that the court system was becoming too subordinate to China and why the democracy activists case was the most recent and persuasive evidence of that.” (13:35)

6. The Proper Place of Judge-Made Law

• Judge-made law is vital for technical/legal questions, but courts should not resolve contentious political issues.

  “I do not think that judges should decide controversial political issues which are properly matters for the electorate at large to decide.” (14:32)

7. The Rule of Law: “Thick” vs. “Thin” Definitions

• “Thin” = procedural adherence; “Thick” = substantive rights, notably human rights.
• Lord Sumption sees a middle ground—essential rights vs. merely desirable social goods.

  “A good thing is no doubt desirable, but you can be without it and still have the rule of law.” (15:23)

8. Judicial Precedent and Landmark US Cases

• Brown v. Board of Education vs. Dobbs (overruling Roe v. Wade):
  • Overturning Brown was justified by changed circumstances; overturning Roe was not.

  “[With Roe] you require a very strong case in order to justify departing from the precedent. That case existed in Brown... It did not exist in the case of Roe.” (16:43)

9. On Trump v. United States: Presidential Immunity

• Sumption finds the Supreme Court’s broad immunity for the president “absurd and dangerous”:

  “To immunize the President from criminal liability is completely unjustified in law and extremely dangerous constitutionally.” (20:09)

10. Parliamentary Sovereignty & Constitutional Tradition

• The UK lacks a written constitution owing to continuous, evolutionary history:

  “In Britain, we have never had a revolution... We are not a desert island waiting to be colonized by its lawgiver. We are the as of several centuries of history.” (22:03–24:30)

11. The European Court of Human Rights: Judicial Activism

• Criticizes the Court for overstepping and creating new rights not grounded in treaty text.

  “If you have a court that makes the law up as it goes along, that requirement [of legal certainty] is not satisfied.” (24:36)

12. British Empire: An Assessing View

• Recognizes both benefits and grave wrongs; economic development, rule of law, and communications as positives, but with clear historic failings.

  “The British empire, I think, was on the whole, a benign force. Of course it did some terrible things… Taking the record as a whole, the British Empire... led to the economic development of major parts of the world.” (27:41)

13. Free Speech and John Stuart Mill

• Sumption admires Mill’s foundational ideas, but notes limitations for today’s debates.

  “He formulated rational principles which are the basis of modern liberalism. I don’t have heroes. But I greatly admire the clarity and vision of his work.” (29:43)

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Notable Quotes & Memorable Moments

• “Democracy is fragile… It’s vulnerable to changes of sentiment of the kind that we are currently experiencing.” (03:41)
• “There will always be people who will be tempted to vote for a party that says it's all fake... Sooner or later there will be a strong movement among those who take it seriously to impose a solution.” (04:59)
• “All that the 47 democracy activists did was to run a primary for the purpose of selecting a common slate of candidates... All of that was entirely legitimate.” (11:45)
• “To immunize the President from criminal liability is completely unjustified in law and extremely dangerous constitutionally.” (20:09)
• “We are not a desert island waiting to be colonized by its lawgiver. We are the as of several centuries of history.” (24:30)

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Key Timestamps

• 02:41 – Why Sumption wrote the book (purpose)
• 03:41 – Fragility of democracy
• 04:59 – Climate change as a challenge to democracy
• 06:11-08:37 – Crisis in party systems (UK, US, France, Brexit)
• 08:45 – Presidential vs. parliamentary systems
• 10:19 – Hong Kong: “a modern tragedy”
• 11:45 – The “legally indefensible” prosecution of democracy activists in Hong Kong
• 13:35 – Rationale for resigning from Hong Kong’s Court of Final Appeal
• 14:32 – Judge-made law and political controversy
• 15:23 – Rule of law (“thick” vs. “thin” definitions)
• 16:43 – On precedent: Dobbs (Roe v. Wade) vs. Brown v. Board
• 20:09 – Sumption on Trump v. United States (presidential immunity)
• 22:01 – Parliamentary sovereignty in UK constitutional history
• 24:36 – Critique of the European Court of Human Rights’ activism
• 27:41 – The complex legacy of the British Empire
• 29:43 – John Stuart Mill and the principle of free speech

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Final Thoughts

Sumption’s conversation displays his characteristic blend of historical context, legal reasoning, and skepticism of judicial overreach. He urges respect for constitutional and democratic traditions, warns against unchecked executive power, and advocates for nuanced approaches to urgent contemporary questions like climate change, free speech, and political rights.

“I would hope that they would take away many things from my book, so I decline to choose.” (30:10)

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Transcript

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May apply welcome to the New Books Network.

[Dr. Charles Coutteo]

Good day. Welcome to New Books in History, a podcast channel in New Books Network. My name is Dr. Charles Coutteo. I'm a host on the channel and today we are greatly pleased and honored to have with us Jonathan Lord Sumpton. Lord Sumpton was a graduate of Eton and Madeline College, Oxford, where he graduated with the first in Medieval History. He was subsequently appointed a Fellow of the College, eventually giving up his Fellowship. Lord Sumpton became one of the UK's leading barristers. He was appointed justice of the UK Supreme Court from 2011 to 2018. He was additionally appointed as a non permanent Judge of the Court of Final Appeals in Hong Kong, which resigned a matter of principle topic which we will discuss subsequently in this podcast. In 2011, Lord Sumpton was appointed to The Privy Council of the United Kingdom. In addition, Lord Sumpton achieved renown for his definitive five volume history of the 100 Years War. Today we're discussing his newest book, the Challenge of Democracy and the Rule of Law, published by Profile Books. Welcome, Lord Sumpton. Why did you write this book?

[Podcast Host]

Well, it is a subject which has interested me for a considerable amount of time. I have given a number of lectures on the subject and the book essentially reprints, with minor modifications, those lectures.

[Dr. Charles Coutteo]

What do you mean when you state that, quote, there are three factors in particular which have had an important impact on the current perceptions of the political process, unquote?

[Podcast Host]

Well, I set it all out in the essay which you're referring to. There are a number of reasons for the rather complex phenomenon that we are currently witnessing a broadly based decline in public faith and democracy. I identified some of the factors, not all of them, which appear to me to have explained this.

[Dr. Charles Coutteo]

What do you mean exactly when you state, quote, that democracy is fragile?

[Podcast Host]

Well, it's a form of government which is relatively new. It's only existed for about 150 years and then only in Europe and North America. It's vulnerable to changes of sentiment of the kind that we are currently experiencing.

[Dr. Charles Coutteo]

Why has the United States, as per the Economist Intelligence Unit, fallen to a level of, quote, a flawed democracy?

[Podcast Host]

Well, that's a reference to the Economist Democracy Index from a number of years ago. I refer to it in my book. But since then, of course, things have declined considerably and I rather question whether the Economist would today rank the United States as a democracy at all.

[Dr. Charles Coutteo]

What for Aristotle was the fundamental problem about democracy?

[Podcast Host]

Well, he was concerned that that democracies were vulnerable to demagogues who offered people the world in return for absolute power.

[Dr. Charles Coutteo]

Why do you state that climate change will be in the future, quote, the major challenge to democracy, unquote?

[Podcast Host]

Essentially because it's a problem which is a real one. I don't subscribe to the various skeptics who say it's unimportant or a fake. It's a problem that can only be resolved at an international level. And lines of democratic accountability are essentially national. Moreover, there will always be people who will be tempted to vote for a party that says it's all fake, it doesn't matter, we don't need to do anything. That's, in the short term a very tempting position to adopt. Sooner or later there will be a strong movement among those who take it seriously to impose a solution. It will involve reducing consumption and therefore is unlikely to appeal to democratic electorates. Unless the a catastrophe is imminent, which of course eventually it will be.

[Dr. Charles Coutteo]

Why, in your opinion, has there been in the past 10 years a crisis of the party system and in particular a crisis of the Conservative Party, unquote?

[Podcast Host]

Well, that's a reference to the state of politics in the United Kingdom, which is where I come from. The phenomenon is fairly general. It's the result of the collapse of the center, which one can see in the United States, in France, and in a number of other advanced democracies. In the United Kingdom, it has arisen in particular out of Brexit. Brexit has basically taken over the Conservative Party, which is Britain's oldest and historically most successful party. The result has been that. The basic problem has been that the Conservative Party has lost votes at both ends of the spectrum. It has lost its former significant liberal wing, which thought that Brexit was a bad idea. And it's lost much of its. Its support among those who wanted to leave the European Union because they're disappointed by the outcome. It was always a very bad idea, but they persuaded themselves that it could have been done better and therefore they've transferred their allegiance to other parties which they feel will offer them the real thing. This is the single most important reason for the failure of the party system in the United Kingdom. But there are others. We have a very primitive system of elections first past the post, which is no doubt inevitable if you have simply two candidates for a single office, but is a bad idea if you have a complicated slate of policies being advanced by different parties. You also have the problem that the parties nowadays represent a range of policies which is much narrower than the policies which interest the electorate at large. So essentially, the voters are obliged to decide at election times which party they least wish to support, rather than which party they feel enthusiastic about supporting.

[Dr. Charles Coutteo]

Why do you state that presidential, as opposed to parliamentary systems are more vulnerable to political breakdown?

[Podcast Host]

Because the presidential system, such as the United States and France, have concentrates awesome powers in the hands of a single chief executive. Parliamentary systems don't do that. They basically make the government collectively responsible to the legislature. The President of the United States is not responsible to Congress except by way of impeachment for anything. He has absolute control over the executive. He also has the right to nominate judges, federal judges, that is. And if he chooses to nominate sufficiently prejudiced judges, he can remove the only effective constraints upon his power. The main constraint on his power is the judiciary, which the current President of the United States has tamed. The other constraint upon his power is Congress, which He has also tamed by the simple device of saying that he will oppose the adoption at the next primary of anybody who makes trouble for him. So the result is that you have a constitution which confers extreme power on the President with certain constitutional constraints that the President has rendered ineffective.

[Dr. Charles Coutteo]

Why do you characterize Hong Kong as, quote, a modern tragedy?

[Podcast Host]

Hong Kong has never been a democracy, but it was a place where in British times, the rule of law applied. And that continued to be the case for the first few years after the handover to China. Since the current leadership of China took office in 2012, it has become increasingly intolerant, not simply of the idea of Hong Kong becoming a democracy, but even of the idea that people should want it to become a democracy. If you believe in democracy in Hong Kong at the moment, you are likely to be prosecuted for a variety of offenses such as sedition. That is a. I think, witnessing the transformation of a vibrant and multicultural society in which a diversity of opinion, political opinion exists. Witnessing its degradation into a state of affairs where it is not permitted to criticize the government is a very depressing experience.

[Dr. Charles Coutteo]

Why do you say in the case of the 47 democracy activists in Hong Kong, that the decision by the Hong Kong High Court was, in your words, quote, legally indefensible because the defendants who.

[Podcast Host]

Were convicted of an offense had done nothing other than exercise rights expressly conferred upon them by the Constitution. The Constitution provided for elections. It was a somewhat defective system because the constituencies were organized in such a way as to make it very difficult for a. A group opposed to the government to obtain a majority in the Legislative Council. But they were certainly permitted to try. And all that the 47 democracy activists did was to run a primary for the purpose of selecting a common slate of candidates who would have the best possible chance of winning a majority in the Legislative Council. They then proposed, if they got a majority, to make their support for the government conditional on the introduction of a greater measure of democracy. All of that was entirely legitimate. The Constitution of Hong Kong, which is known as the Basic Law, expressly provides for the Legislative Council, by a majority, to reject the government's budget. If they do it twice, it expressly provides that the Chief Executive must resign. And that was something that the 47 democracy activists wished to do. It seems to me that if you have a political right conferred upon you by the Constitution, the suggestion that it's a criminal offense, if it results in a change of the Chief Executive, that it's quite absurd.

[Dr. Charles Coutteo]

Why did. Why? I'm sorry? Why did you resign? In 2024 from the court of Final.

[Podcast Host]

Appeals in Hong Kong because I considered that the court system was becoming too subordinate to China and why the democracy activists case was the most recent and persuasive evidence of that.

[Dr. Charles Coutteo]

And why did you not Resign prior to 2020?

[Podcast Host]

Because I thought that the system could survive. I thought that the National Security law introduced in 2020 was consistent with respect for basic political and human rights. And I thought that the judges would have the courage to say so. I was wrong about that.

[Dr. Charles Coutteo]

Would it be the case that you are not an adherent of judge made law?

[Podcast Host]

Sorry, could you say that again?

[Dr. Charles Coutteo]

Would it not be the case that you're not inherent of Judge maid law?

[Podcast Host]

No, not always. Judge Maidlaw has a perfectly proper place in a judicial system. In a common law country it's particularly important. But I do not think that judges should decide controversial political issues which are properly matters for the electorate at large to decide. You can have judge made law, for example, in areas like the law of contract or the law of trusts. Those are not contentious political issues. To have judge made law on a question like abortion or single sex partnerships seems to me to be usurping a proper function of the electorate in a democracy.

[Dr. Charles Coutteo]

What are the differences between thick, as opposed to thin, definitions of the rule of law?

[Podcast Host]

Well, those are slang shorthand. The thin definition is essentially procedural. It simply says that. The rule of law exists provided that the law is respected. It doesn't have to have, in other words, any particular content. The thick definition says that the rule of law requires that the law should have a particular content. In particular, it should have a content which respects certain human rights. My own position is somewhere between those extremes. I think that there are certain rights which are essential to the rule of law, others which are not. I think it's important to distinguish between a human right and a good thing. A good thing is no doubt desirable, but you can be without it and still have the rule of law.

[Dr. Charles Coutteo]

Why do you disagree with the Dobbs decision on the right to an abortion as opposed, I presume, support the Brown versus the Board of Education decision of 1954. Do not both violate the doctrine of steradesis?

[Podcast Host]

No, because Brown and the Board of Education was decided in circumstances very different from those which had been decided in the earlier case in Plessy at the beginning of the century. The circumstances have not changed in the case of abortion and indeed the Supreme Court made that clear. They just said that they thought that the earlier decision had been wrong. Now that decision had stood for 50 years. Very large numbers of businesses and individuals had adjusted their lives in accordance with the law as declared in Roe and Wade. I think Roe and Wade was a bad decision because it usurped a function properly belonging to the electorate. However, it seems to me that when a case has stood for 50 years and indeed been endorsed by subsequent decisions of the Supreme Court itself, you require a very strong case in order to justify departing from the President. That case existed in Brown and the Board of Education. It did not exist in the case of Roe and War.

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[Dr. Charles Coutteo]

Characterize, at least in my opinion, the decision in Trump versus the United States as, quote, an absurd decision, unquote?

[Podcast Host]

It was based upon the Proposition that the President should not be distracted by having to consider the criminal liability that might attach to his acts. It seems to me possible that civil liability named, for example, in tort of negligence can be committed by a President without him realizing it. And so the idea that he should be immune has at least a respectable argument behind it. I don't think it's a good argument, but it's a respectable argument. Crime is a different matter because crime requires a guilty mind, what lawyers call mens rea. It requires a consciousness that what you are doing is wrong. Presidents cannot commit crimes by accident. They have to do it on purpose. To my mind, to immunize the President from criminal liability is completely unjustified in law and extremely dangerous constitutionally. It also means that the President is effectively above the law, because the only way that courts can enforce their injunctions against a President who acts illegally is is by way of criminal sanctions for contempt of court. Remove those sanctions and there is nothing that the courts can do to prevent the President from behaving illegally. I would not wish to live in a country in which the President is above the law and is permitted by its highest court to act illegally whenever he feels like it.

[Dr. Charles Coutteo]

Do you adhere to the doctrine of parliamentary sovereignty?

[Podcast Host]

Yes.

[Dr. Charles Coutteo]

And if so, why?

[Podcast Host]

I think that it depends very much on the history of the country which one is talking about. I approve of the. Well, it's not a question of approving of it. I accept the doctrine of a parliamentary sovereignty in the United Kingdom because that is where our long history has taken us, all formal constitutions. The United States, for example, has a constitution, a written constitution, like most other countries, which is, to quote the constitution itself, the supreme law of the land. Therefore, Congress cannot do anything, which it's not constitutionally empowered to do. In Britain, we have never had a revolution. We have never had the kind of new beginning which creates written constitutions which are the supreme law of the land. We are therefore in a position where Parliament can, as a matter of law, do anything. Now I say as a matter of law, it can do anything politically. Of course it can't do anything politically. There are many constraints on what governments can do in the United Kingdom, but we do not have a constitution that limits the power of our legislature. That is where we are. We could change that if we had a written constitution. But I cannot think of more than one case in any country in the world which has adopted a constitution. In ordinary, peaceful circumstances. Constitutions essentially are adopted in place of an old system which has been comprehensively destroyed. Thus revolution War, decolonization, all circumstances in which you start with a blank sheet of paper. Britain has never had these events, and it has never therefore been in a position of having a blank sheet of paper. We are not a desert island waiting to be colonized by its lawgiver. We are the as of several centuries of history. It therefore seems to me to be naive and absurd to think that we can dispense with a principle which has been the cornerstone of our Constitution for many centuries.

[Dr. Charles Coutteo]

Why? Excuse me, why are you critical, correctly, in my opinion, of the European Court of Human Rights?

[Podcast Host]

Because it has turned itself into a legislative body. Its function is to apply a treaty, the European Convention of Human Rights. The European Court of Human Rights has emancipated itself from the terms of that treaty, and it therefore essentially makes up human rights as it goes along in accordance with its view about what sort of rights would be desirable. That seems to me to have two problems associated with it. One is that it means that it's inconsistent with the rule of law, because the basic requirement of the rule of law is that the law must be asset attainable in advance so that people can be guided by it. If you have a court that makes the law up as it goes along, that requirement is not satisfied. The other problem is that the European Court of Human Rights essentially decides politically controversial issues which belong to the electorate. I refer to my earlier answers in the context of judicial activism and the activities of the United States Supreme Court. It seems to me that if you want to update a document like the European Convention that is a matter for the original parties and not for a court, I think that that is a bad way to behave.

[Dr. Charles Coutteo]

In retrospect, were not the diplock courts and the policy of internment as employed in Northern Ireland a classical example or examples of serious breaches of fundamental human rights?

[Podcast Host]

The internment was the diplock courts were not. Human rights law doesn't require juries. Many countries don't have juries, but have a perfectly respectable human rights record. The diplot courts were not courts associated with internment. That was a governmental policy. You didn't have a court decision to intern somebody. It was simply a direction by a minister. The diplock courts were courts which operated in place of juries because experience showed that it was impossible in Belfast and other parts of Northern Ireland to find a jury which would be free of the prejudices associated with the serious religious divisions that lay behind the troubles in Northern Ireland. There was also a serious problem about the nobbling of juries, sometimes with extreme violence. So the only way that you could have a fair trial was to do it before a judge. That was what the duplot courts were and what they did.

[Dr. Charles Coutteo]

Why, on the whole, do you believe that, as per the author Nigel Begar, whose case you discuss in your book, was the British Empire on the whole, a good thing?

[Podcast Host]

I think it was a mixed thing. The history of the world is the history of empires. Democracy is a form of government that has existed only relatively recently and in relatively sophisticated countries with high levels of education, public education. The British empire, I think, was on the whole, a benign force. Of course it did some terrible things. But all governments, if you go back in history far enough, occasionally do terrible things. Taking the record as a whole, the British Empire that led to the economic development of major parts of the world. It introduced the rule of law to much of the world. It created great world cities like Hong Kong, Singapore, Sydney and others. It created international networks of cables and communications. These are all considerable benefits. They would not have occurred if the British empire had not taken those countries over. I'm thinking particularly of India, of course. As countries belonged to the British empire became better educated and more sophisticated, that form of government became inappropriate and was abandoned. We voluntarily surrendered power in relation to the colonies in Canada, in Australia, in New Zealand, in South Africa. We voluntarily did so in India in 1947. That's the way that things should happen.

[Dr. Charles Coutteo]

Would it be accurate to say that, as per the issue of free speech, that John Stuart Mill is the hero of your book?

[Podcast Host]

John Stuart Mill did not anticipate all the problems that associated with the debate on free speech today, but he formulated rational principles which are the basis of modern liberalism. I don't have here is. But I greatly admire the clarity and vision of his work.

[Dr. Charles Coutteo]

If you wanted people to take one thing away from your book, your lordship, what would it be?

[Podcast Host]

I would hope that they would take away many things from my book, so I decline to choose.

[Dr. Charles Coutteo]

Duly noted. On that observation, I would like to thank you very much, Lord Sumtion, for being so kind to speak with us today. This is Charles Catillo. You were listening to New books in history, a podcast channel on the New Books network. Thank you, Lorchen, very much.