The best books on The Rule of Law

recommended by Jonathan Sumption

What is the relationship between law and human society? Does the rule of law entail
certain rights? What are the justifications for legal constraints on human conduct?
Jonathan Sumption, a former Justice of the UK's Supreme Court, discusses these and
other issues related to the rule of law.
Interview by Benedict King

1 2 4 5
Oresteia

Leviathan

by Thomas
3
On Liberty
Justice for The Rule of Law

by Aeschylus Hobbes by Tom Bingham

by John Stuart Mill Hedgehogs

by Ronald
Dworkin

T
he books on the rule of law you’ve chosen to talk
about today deal a lot with legal theory. Do you need
to be a good philosopher and historian to be a good
lawyer? Or is that just an incidental achievement?
No, you don’t. The rule of law is rather an abstract subject. It invites Jonathan Sumption
questions about what the rule of law means and what the purpose of law Jonathan Sumption is
a British judge and
is. These are not questions that practitioners tend to ask. They arise historian. He served as
prior to the grubby stage where you actually have problems that you a Justice of the UK's

need to solve. Supreme Court from

2012 to 2018. In the
2019 Reith Lectures he
Let’s explore those questions as we look at the books. First argued that the law is
taking over the space
up we have Aeschylus’ Oresteia. This is a trilogy of plays— once occupied by
what do they tell us about the rule of law? politics. Those lectures
The Oresteia is an immense political and legal allegory. It’s about the were expanded into a
book, Trials of the
replacement of a world in which justice meant vengeance by a world in State: Law and the
which you have a serious investigation of the facts and an examination Decline of

of the relevant law. It’s about the creation of courts as an alternative to Politics. Lord Sumption
has also written several
anarchy and despotism. books of medieval
history, including four

The critical part of it is in the third play of the trilogy, The Eumenides. The books on the Hundred
Years War, the third of
first two plays are essentially a reprise of the Homeric legend. You have which, Divided
a succession of murders. Agamemnon, king of Argos, sacrifices his Houses, won the 2009
Wolfson History Prize.
daughter, Iphigenia, to persuade the gods to send him a favourable
wind to conquer Troy. He returns 10 years later and his wife,
Clytemnestra, kills him to avenge the killing of their daughter. Their son
Orestes is then commanded by Apollo to avenge his father’s murder by
killing Clytemnestra, which he does. So this is a world in which justice is
vengeance. In Greek mythology, avenging injustice was the job of the
Furies. They were creatures of hideous aspect who hunted sinners from
their communities.

“I think that Mill would have deplored

the pressures created by social media to
conform to particular ideas.”
The Eumenides is about the trial of Orestes for the murder of his mother.
Athena, the goddess of wisdom, puts an end to the cycle of lawlessness
and violence and anarchy by founding a court to decide whether Orestes
has a defence.
Orestes raises two defences. His first defence is that Clytemnestra had it
coming to her because she murdered Agamemnon. His second defence
is that Apollo told him to do it—superior orders. The outcome is that
Orestes is acquitted by Athena’s casting vote. Now, that’s a very crude
and short summary of a play which is really a very profound analysis of
the process by which law comes to restrain the violent instincts of men
and replaces capricious violence and despotism with something more
ordered and predictable. The great phrase of Athena in the translation
that I use is “let no man live uncurbed by law or curbed by tyranny”,
which is a very exact description of the function of law. It is something
that constrains the activities of men and spares them the tyranny of
arbitrary violence.
It’s not just an allegory of law—the Oresteia is also one of the greatest
achievements of human civilization. It’s profound, it’s intense, it’s
dramatic and, above all, the language is exceptionally beautiful. There is
a problem about translations. In many translations, you won’t get the
beauty of the language. Greek is a very allusive language. It’s rich in
subtle synonyms and metaphors, and therefore hard to convey in the
kind of down-to-earth language that is now fashionable for translators.
Most people I suspect read the Oresteia in the Penguin Classics versions
or the Oxford Classics translation. I have to say I find them rather flat.
I much prefer the old-fashioned Victorian translations. The best of them
is by Edmund Morshead. He was an eccentric Victorian schoolmaster
who wrote a verse translation. Verse translations inevitably mean you
have to take some liberties or resort to paraphrase. It’s not literal. It’s
dramatic and rhetorical. It’s high-flown. But it conveys the ideas better
than an exact translation would do.
It is still available?
Yes, it’s available on Amazon.
Let’s move on to Leviathan by Thomas Hobbes. Hobbes was
also concerned with the curtailing of violent human
instincts.
He was concerned with exactly the same problem, yes.
Although in my recollection of studying him at university, he
didn’t think that the law was there to curb tyranny. He
thought the monarch must be absolute. Is that right?
He certainly believed that law was there to curb the tyranny of violence,
but he believed that the only way to curb the tyranny of violence was to
have an absolute ruler—it didn’t have to be a monarch, but obviously
Hobbes thought in those terms, because in the seventeenth century
most societies were monarchies. Hobbes was saying that law is the
instrument of government, and government’s purpose is to defend us
against anarchy. He was an apologist for absolute government. He
believed the law was a creation of human societies, and not some kind
of eternal moral truth. Societies were composed of people who had
surrendered their liberty to an absolute ruler in return for security and
protection from arbitrary violence. So the law was whatever the
sovereign commanded in order to achieve that.
The best reason for reading Hobbes is that no other philosopher has ever
used the English language to such powerful effect. It is a really
remarkable feat of dialectic. You find yourself agreeing with him at each
stage of the reasoning as he builds up his case then, quite suddenly, you
find that you’ve arrived at a conclusion which seems intolerable. You say
to yourself, “Goodness, how did I end up here?” I read Hobbes as a first
year student at Oxford. I had never read him before, although I had
vaguely heard of him. I rejected his conclusion root and branch, but I
was completely bowled over by the power of his deductive reasoning and
the seductive force his language.
What are the intolerable conclusions that he draws?
The intolerable conclusion is that there is no alternative to absolute
government, that you have to have total surrender to government
because nothing short of that can be guaranteed to produce civil peace.
He actually recognized only one limitation on the power of government,
which is that the sovereign was not entitled to do something which
would require his subjects to end their own lives, because the whole
purpose of the sovereign’s powers was to avoid that result.
People don’t concentrate much on the end of his Leviathan
which I think covers the Christian commonwealth. But even
there, are there any sort of limitations put on a Christian
monarch?
Hobbes needed God to provide a moral rule. We now have the problem
of devising moral rules without external authorities like God, but that
was a refinement that Hobbes did not have to grapple with.
Your next book choice illuminating the rule of law is John
Stuart Mill’s On Liberty. Mill was very much opposed to
Hobbes’ absolutist position, I think.
They start from opposite ends of the spectrum. Hobbes regarded
absolute government as necessary for human contentment, and thought
it required no other justification. John Stuart Mill regarded human
contentment as depending on an altogether wider range of factors than
mere security. He starts from the proposition that every exercise of
coercive power has got to be justified because all constraints of liberty
inhibit the development of human talent. On Liberty is the classic
statement of traditional liberal values about the limits of state coercion.
It’s an eloquent argument for personal liberty on the grounds that it’s
the condition in which human beings are most likely to flourish and be
happy.

“Tom Bingham’s book is a wise book . . .

It is the fruit of a good deal of
experience.”
The question which he is trying to answer is, “what restrictions on
personal liberty is it legitimate to impose by law?” He famously believed
that people should only be prevented by law from doing things that
harm others. So you should not prevent people from harming
themselves and you should not prevent them from doing something
simply because other people disagree or disapprove. The law exists to
protect us from harm. It doesn’t exist to recruit us to moral conformity.
Mill was very concerned about pressures to conformity, which he
believed were an inherent problem in democracies, such as Victorian
Britain was becoming when he wrote. Some of his concerns are
extremely pertinent to today’s world.
I got a sense from reading it that he’s often thinking about
the pressures of religious conformity when he’s thinking
about the individual’s own good not being a sufficient
warrant for coercion. Is that true?
Well, he certainly objected to the idea that the law should save us from
sin. Of course, in his day, the main pressures to enforce standards of
behaviour, regardless of their impact on others, came from religious
groups. But that is not always true, nor did Mill imagine that it would
be.
The criteria which I sought to apply in choosing my five books is that
each one has to be thought-provoking and it has to have high literary
quality. And Mill does write beautifully. His style couldn’t be more
different from that of Hobbes, but it’s elegant and it’s reasoned, like
everything that Mill wrote. His autobiography is a masterpiece.
What is particularly pertinent about On Liberty today?
We live in an age that expects conformity and believes that moral
judgments should be made collectively and enforced on those who don’t
agree. I think that Mill would have deplored the pressures created by
social media to conform to particular ideas. He would have deplored all
of the laws which require us to act in particular ways even though there
is no harm to others, for example the rules about fur farming. Much
modern law gives coercive effect to moral principles about which we
don’t all agree and whose observance by an individual makes no
difference to anyone else. It just gives true believers the satisfaction of
knowing that they’ve imposed their values on someone else. This was
the essence of what Mill objected to.
Let’s move on to Ronald Dworkin’s Justice for Hedgehogs. I
really didn’t know anything about him at all. But as I
understand it, Hobbes has this idea of positivist law, that
law is a creation of society rather than external to it. But
Ronald Dworkin rejects that. Is that right?
He totally rejects it. He’s at the opposite extreme. They are similar in the
skill with which they deploy language and the tightness of their
techniques of argument. But I think that this book, which was
Dworkins’ last, actually published in 2011, not long before his death in
2013, is a modern classic. The fact that I completely disagree with its
central thesis does not stop me from saying so.

“The Eumenides is about the trial of

Orestes for the murder of his mother.
Athena, the goddess of wisdom, puts an
end to the cycle of lawlessness and
violence and anarchy by founding a
court to decide whether Orestes has a
defence.”
Dworkin was an American legal philosopher, although much of his
career was passed in British universities, particularly London and
Oxford. He was famous for pungent, opinionated and elegant essays
contributing to public debates about rights.
But you’re right that he rejected the view of the legal positivists that
rights were the creation of human societies. He believed that there were
basic rights, including what we would call human rights, which existed
in the abstract. He asked himself, “can you have a moral principle, which
is true regardless of whether anyone believes in it. Can you have a moral
principle which nobody is aware of and nobody believes and yet is a true
moral principle?” I find that conceptually extraordinarily difficult
because moral principles are essentially the creation of the human
intellect. They are responses to perceived social needs. The idea that they
can exist apart from society strikes me as bizarre, but Dworkin’s book is
very skilful in the way in which he builds the argument up. I think that
he is one of the great modern legal thinkers.
What is the hedgehog of the title exactly?
The book is not about animal rights! The title is derived from an
aphorism attributed to the archaic Greek poet, Archilochus, that the fox
knows many things but the hedgehog knows one big thing. So what he’s
talking about is the difference between thinkers who bring insights into
a single great idea (hedgehogs) and thinkers who just skate over the
whole surface of human knowledge (foxes).

“Hobbes was saying that law is the

instrument of government and
government’s purpose is to defend us
against anarchy. He was an apologist
for absolute government.”
Dworkin characterized himself as a hedgehog, because he basically
thought that all thinking on the subject of law and rights was
interconnected, so it was basically one great big subject. When you read
his book you find that it wanders disparately over a large number of
different fields to make his point. My own view is that Dworkin was not
really the hedgehog he claimed to be. He was actually a fox in
hedgehog’s clothing.
If moral values are external to human society or
independent of it in some way, there must be some
independent criteria of judgment, which could be God, but
what’s Dworkin’s criteria?
He doesn’t have one. That’s the great weakness of his argument. You
need a source of legitimacy. If the legitimacy of a moral rule is not
conferred by collective social choice, what is it that makes it legitimate?
As you point out, in a religious age the answer would have been
straightforward, that moral laws came from God. The same could be
said with totalitarian dictatorships. Moral principles come from the
ideology of their ruling groups. But if you’ve got a democracy, as
Dworkin is assuming, it becomes extremely difficult to identify a source
of legitimacy other than the choice, directly or indirectly made, of the
people.
But your view is that he fundamentally fails to do that.
I am a legal positivist. I wouldn’t describe myself as a legal philosopher,
but most legal philosophers these days are positivists. And I think that
they’re right. The great positivist who disagreed constantly with
Dworkin was Dworkin’s teacher, Herbert Hart, whose book, The Concept
of Law, is probably the finest modern statement of the positivist
position.
Let’s move on to Tom Bingham’s The Rule of Law.
This is a short book, published in 2010, shortly before the author’s
death. It certainly isn’t a philosophical work on a par with Dworkin’s.
And Tom Bingham would never have suggested that it was. It doesn’t
seek to grapple with the profound philosophical problems about the
moral basis of legal coercion. It’s essentially a basic introduction to the
social and political functions of law in modern Britain, which is
addressed to non-lawyers. My main reason for including it is to pay
tribute to the memory of one of the great judges of our time, somebody
who combined legal learning with a profound understanding of the
workings of society and very great personal wisdom. He was a truly
remarkable man.
Again, The Rule of Law is a book with which, in one very critical respect, I
profoundly disagree, because Tom Bingham believed that the rule of law
required the recognition of a broad range of legal rights, more or less
corresponding to the Human Rights Convention. I find that very
difficult. Privacy, freedom of speech, freedom of assembly; obviously
these things are desirable and a civilized society should want them, but
a society can be governed by the rule of law irrespective of the contents
of the law, with only one exception. The exception is that you clearly do
have to have a right not to be arbitrarily imprisoned or assaulted
without legal authority, or you’re not really a society at all. But, apart
from that, I think that there are serious problems about saying the rule
of law requires the law to have a certain content.
What drove Tom Bingham to insist on that?
That’s not entirely clear. Basically what he says is that a decent society
ought to want these things and I would entirely agree with that. A
decent society ought to want them. But you want them because they are
in themselves desirable and not because they’re eternal truths implicit
in the rule of law. Was there really no rule of law in England before the
rights that Tom Bingham is talking about were created? In some
instances that wasn’t until the Human Rights Act was passed in 1998.

“If you’ve got a democracy, as Dworkin

is assuming, it becomes extremely
difficult to identify a source of
legitimacy other than the choice,
directly or indirectly made, of the
people.”
I would say that Victorian Britain was characterized by the rule of law,
notwithstanding that many of the rights that Tom Bingham is talking
about did not then exist.
Is he is trying to grapple with the same problem that Ronald
Dworkin was trying to grapple with or is it slightly different?
No. I think it is different. Ronald Dworkin is trying to justify the
proposition that moral principles are prior to law and can constrain the
laws which is legitimate for societies to make. Tom Bingham’s is a much
more practical and down-to-earth book. It is basically describing how
law works in modern Britain. He is undoubtedly right to say that human
rights are an important part of it, but where I find it difficult to agree
with him is when he says that this is inherent in the rule of law. It isn’t;
you can have the rule of law even if the laws are repellent. There are
societies that are undoubtedly characterized by the rule of law. They ban
arbitrary interference with people’s liberty and or lives, but they do not
have the full range of basic rights that we have.
Tom Bingham’s book is a wise book that has many other things beyond
those that we’ve just been discussing: for example his views about
international law; or the sovereignty of Parliament. It is the fruit of a
good deal of experience.
Interview by Benedict King

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