Jonathan Sumption on Gaza, lockdown and the ECHR Will humanity ever escape the shadow of war?

Jonathan Sumption is a difficult man to define: revered historian, esteemed lawyer and one of Britain’s greatest public intellectuals. He came to greatest popular prominence during the Covid pandemic as one of the most lucid opponents of the Government’s lockdown policies. But as that era came to a close, he returned to a lifelong project — his acclaimed history of the Hundred Years’ War, now completed with the publication of the fifth volume.

This week, he joined me at the UnHerd Club to discuss everything from our evolving attitudes to war and Joan of Arc, to Covid, the ECHR and Roe v. Wade. Below is an edited transcript.

 

Freddie Sayers: Lord Sumption, you’ve kindly agreed that we are on “ask me anything” rules. Our ambition is to move between your recently completed history of the Hundred Years War and contemporary controversies that a historical perspective might shed light on. Let’s see how that goes! 

To begin with, it’s remarkable how much the historical period you’ve devoted 43 years of your life to is defined by war.

JS: War is crucial. Until the beginning of the 20th century, the two principal collective activities of mankind were religion and war. The purpose of the state was to serve the second of those things, but usually the first as well. War is at the heart of the experience of societies. It is what created the state, in that war made it necessary for the state to find a way of organising the resources of a country. It’s something that, during the Hundred Years War, the English government initially did very much better than the French, which is why, although they were a smaller, less populated, less rich country, they won their battles initially. The tables were reversed later. But war is absolutely critical to an understanding of the creation of the state and of human societies. That doesn’t just apply to this country. It applies to pretty well every country.

Medieval societies had a completely different attitude towards conflict. We regard war today as an unwanted catastrophe that periodically breaks in on us against our wishes. They regarded war as the norm, the normal way of settling international disputes, and quite a few internal disputes. And so, people didn’t say: “This is terribly wasteful, we could be spending the money on new universities or the National Health Service.” It was not felt that the duty of the state extended to relieving poverty or to promoting human happiness. Therefore, there was nothing wrong with war, it was a perfectly reasonable thing to spend what money you had on. It’s an attitude that, today, it’s quite hard to work your way into.

FS: Although given the news of the past fortnight, it is clear that primal war over territory, between peoples that don’t have any hope of seeing eye to eye, is still a feature of today.

JS: It is as old as the hills. In the 14th century, the English adopted what I can only describe as terrorist tactics to try and batter the French government into submitting to their demands. They conducted huge raids in which they indiscriminately killed large numbers of people and burned whole villages. This is what we would call terrorism. It really wasn’t until the 18th century that war became a battle between organised armed forces. We’re now reverting to an earlier pattern in which at least one side in any war is a disorganised group of people. Hamas is a good example. They’re semi-organised, and their object is indiscriminate violence because they do not have the resources to confront whoever their enemy is with the same sort of weapons. If you are a semi-state, and the underdog, this is how you wage war. England was 100% of a state in the 14th century, and they still waged war that way.

FS: So you think what we saw on 7 October in Israel — the killing of infants, the kidnapping of elderly people: there would be no qualms about that in the 1400s?

JS: None at all. There were theoretical qualms about killing priests and pilgrims. But that was it. Everyone else was fair game. We have an image of the late Middle Ages as an age of chivalry. Actually, chivalry was a purely decorative concept, a form of aristocratic showing off. It had almost no implications for the conduct of war, except that it governed the rules about taking prisoners and ransoming them — taking prisoners was very profitable because you could sell them. So apart from that, chivalry was a decorative illusion. It was actually a very grubby and violent period. On the whole, I don’t believe that humanity changes very much. The technological possibilities which enabled them to achieve their objectives have changed quite radically, obviously. But their ambitions and moral sensibilities have not changed at all and we can see that all around us.

FS: Do you think we are regressing back to a more medieval mode of warfare?

JS: Organised wars, conflicts between disciplined armies — I’m certainly not suggesting we won’t see more of those. That would be tempting fate. But all the wars since the Second World War — possibly the Korean War is an exception — have involved loose associations of guerrillas and terrorists either facing other similar groups or facing organised armies like the Western armies in Iraq and Afghanistan.

FS: Much of your history is concerned with the formation of England and France as nations. Do you think that nations are receding from the prominence they have historically enjoyed?

JS: On the contrary, I think nations, after a period in which they were thought to be rather old hat, are coming back. I think that national self-interest is reasserting itself in quite a big way.

FS: Since we touched on the current conflict, it would be remiss not to ask what you think the legal situation should be here in the UK regarding Israel-Palestine protests. There has been a lot of discussion of whether slogans like “Palestine shall be free, from the river to the sea” should be deemed illegal as they are supporting a terrorist organisation or advocating the destruction of Israel. Where do you think the line should be?

JS: There’s been an awful lot of nonsense talked about this, some of it coming from surprising authorities like the Home Secretary. Hamas is a proscribed organisation. It’s illegal to support them. I don’t think that it’s illegal to support — lawfully, without violence — the cause which they support violently. I do not think it’s illegal to say that Palestine should be a distinct state. I don’t think it’s illegal to say that Palestinians have a legitimate grievance. (These are not necessarily my views, but they are views, which it’s perfectly legal to express.) The mere fact that most Palestinians live in an area, Gaza, which is controlled by Hamas, does not mean to say that everything that you say in favour of the Palestinians is necessarily to be treated as equivalent to supporting Hamas. So a great many of the slogans, the demonstrations, and the flags that we’ve seen in the streets are not illegal at all, at least not on that ground.

FS: Are you worried that normal freedom of expression is being imperilled?

JS: I don’t think so far it’s been imperilled. I think what we’ve seen so far is some rather silly and ill-considered statements from people who should know better. We’ve got to see how the situation develops. My impression, for what it’s worth, is that we are tending slightly to recede from the initial feeling that all good men and true must necessarily support Israel. I think that a realisation of the humanitarian consequences of the Israeli invasion of Gaza has caused quite a lot of people — not everybody, but a lot of people — to pause. And on the face of it, it looks as if an invasion of Gaza would have some of the indiscriminate qualities that people quite rightly objected to when practised by Hamas.

FS: I’m going to take us back to the late Middle Ages now. Joan of Arc is perhaps the standout character of your last volume. And it’s just the most extraordinary story and oddly quite a contemporary one.

JS: She is the most interesting phenomenon, I agree. The Middle Ages basically believed that women were unfit for any responsible job other than heads of state. You could be a queen, but you couldn’t be anything else. Joan of Arc clearly and spectacularly broke that convention. She was a 17-year-old peasant who reversed the course of the war in the space of a year. That was a very remarkable thing. She challenges objective history. No serious historian can really believe in miracles, however religious he may be (and I don’t). On the other hand, some of the things that she did are difficult to explain short of divine intervention.

So what is one to do if the probability points to something that you can’t possibly believe in? I think the answer is that, in war, there are risks and there is bluff. And people who take risks, and try bluffing, often get somewhere. It’s usually luck. It’s not an act that can be sustained for that long, but it wasn’t sustained for very long. Joan of Arc’s military career lasted less than a year. Napoleon said that, in war, three quarters of it is morale, and the rest of it is manpower and all the rest. And I think a lot of experienced soldiers, certainly a lot of historians, would agree with that.

FS: So a 17-year-old girl — you describe her as anorexic in your book, illiterate, who dresses in men’s clothes, somehow manages to get herself to the court of the Dauphin and become the mascot of the French within months. So, she was a sort of influencer?

JS: Yes. She transformed the morale of the French, and completely destroyed that of the English. And that was something that not only the French thought, but the English agreed with. The Duke of Bedford, who ruled the English occupied parts of France, in his post mortem on what had happened, said: this woman was a miracle worker. He didn’t think that she was inspired by God — the miracles were the work of the Devil — but that she had supernatural powers, and that they destroyed the English morale was something that he regarded as self-evident. The records that we have of the interrogation of English prisoners of war taken by the French around that time bear out exactly the same story.

FS: Is it ridiculous to make the comparison to someone like Greta Thunberg?

JS: Well, Greta Thunberg has this much in common with Joan of Arc: Joan of Arc was widely regarded by the professional soldiers as a damn nuisance. They kept their councils of war in the middle of the night when she was in bed, or when she was somewhere else. And I think there’s a lot of feelings of the same sort, among people who are actually serious climate change authorities, about Greta Thunberg. But Greta Thunberg was a demonstrator; Joan of Arc was a fairly active doer.

FS: Although she didn’t actually fight. 

JS: No, she didn’t actually fight. She was in the middle of the melée, and she had a sword and axes and things, but she never killed anybody. She told her judges that, and all the evidence bears it out. She was there essentially as a morale booster.

On the coronation march to Reims to crown Charles VII, all the towns opened their gates because she simply appeared in front of them and said: “Open your gates, in the name of God.” They had heard slightly exaggerated stories of her miracle-working in the Loire Valley and they were terrified. And that worked a dream until she came to the walls of Paris. They didn’t open the gates. Paris was the great capital of the English and the Dukes of Burgundy, and the population was onside and they fought back. She announced her mission, demanded that they open the gates, and said they would be sent to Hell by the God of justice if they didn’t. And the response from a quite lowly crossbowmen was, “Shall we now, you brassy trollop,” whereupon he loosed his crossbow and caused her quite serious injuries, which prevented her from taking any further part.

FS: The beginning of the end for Joan of Arc.

JS: It rather damaged her credibility!

FS: One other event that took place in this huge period between the 1300s and the mid-1400s was, of course, the Black Death, the huge plague that ravaged both England and France. Do you think this history and your sense of proportion were part of your background thinking when our own pandemic took place in 2020? 

JS: My sense of history told me that there had been an awful lot of epidemics, which were at least as serious, usually more serious than Covid. And it seemed to me, therefore, that to overreact, to treat this as an occasion for closing down all social life, was, frankly, absurd. It was a serious enough illness. But it was not unprecedented. And humanity has survived without inflicting these appalling tortures on itself perfectly satisfactorily through much worse epidemics. The Black Death was one example. But there are very many others.

There is one similarity, which is worth noting. In the Black Death and during other epidemics of bubonic plague in the Late Middle Ages, people used to believe that they had suffered a terrible infliction sent to them by God. It was due to their sinfulness. So they organised processions around the walls of the towns in which they lived in which they flagellated themselves. And during the Covid inquiry, we flagellated ourselves quite unnecessarily.

In my view, they were more sensible approaches than lockdowns. But what the two incidents had in common was a feeling that if you didn’t modify the flesh, if you didn’t inflict some misfortune on yourselves, you were going to be a sucker for this disease. People did it without any kind of religious motivation. So that’s an important difference. But the desire to inflict damage on yourself in order to ward off what you believe to be an impending catastrophe is a fundamental feature of human psychology at most historical times.

FS: If we look at other dissenting figures of authority, I think you could almost observe a trend, that people who had a broader learning, a broader interest than purely one particular branch of one particular science, tended to take a view more similar to yours. Sunetra Gupta for example, the scientist from Oxford, is also a novelist. Do you think there’s something in that?

JS: I think the more experience that you have of life — and history is essentially a source of vicarious experience — the more sceptical you are likely to be about any magic bullet solution. What was remarkable about Covid was that in deciding upon lockdowns the Government didn’t even look at perfectly modern examples of reasons why you shouldn’t do this. It is absolutely clear that they never considered, and discouraged other people from considering, the downsides — economic, financial, educational, social, mental health issues. This was a classic example of an extreme magic bullet mentality: “We are going to lock people down, we do not care what the collateral consequences might be, because we’re only interested in one thing, which is reducing deaths from Covid. We don’t mind if deaths from dementia go up, if deaths from untreated or undiagnosed cancer go up.” It is the most narrow minded conceivable approach to any major policy issue. You don’t need to go back to the 14th century in order to see why.

FS: When you look back at the Covid period, now three years on, do you think you can now say with confidence that you were right and that lockdowns were a mistake?

JS: I felt I could say that with confidence at the time actually! I think that the proportion of people who think lockdowns were a good idea has diminished, but a majority still think that. I also think that I converted very few people. What I did do I suspect was cheer up a lot of people who already agreed with me.

Now, lots of people come up to me and say: “Thank you for what you said, during the lockdown.” And I got a huge postbag of 200 letters a week and I would think 90% of them were supportive. I’m not suggesting for a moment that this is a statistically representative sample of the British population. But the sorts of people who take the trouble to write your letter are people who want to say: more power to your elbow. And that’s obviously cheering — you feel you’re doing something useful, even if it’s not persuading people on the other side of the argument.

FS: Do you look at society differently — with greater trepidation — or feel like the institutions of our liberal society are more fragile than you had thought they were? Has it changed your world view?

JS: Yes. I was surprised by the readiness of people to submit to this. I have always been fascinated and appalled in roughly equal measure by the political writings of Thomas Hobbes. Ever since I was a teenager, when I first read Leviathan. Everybody should read Hobbes, because he is the most persuasive master of the English language and of advocacy that I know. If you follow his syllogisms, one after the other you agree with them all, and you suddenly end up in a place you didn’t want to be. And you say, “Blimey, how did I get here?”

But the serious point about Hobbes is that he believed life was horrible, and that fear of its horrible qualities was what made people accept despotism. Hobbes believed in absolute government and he quite correctly noted that fear was what drove people to support absolute governments. Now, we have actually managed, since Hobbes was writing in the middle of the 17th century, to live our public lives on quite different principles. We’ve managed, without fear and without the systematic application of coercion, to achieve a moderately civilised system of political discourse and decision making. And that’s very remarkable. But what struck me about the Covid epidemic, was that quite suddenly, you found yourself reverting to a pattern which I thought we had abandoned for nearly 300 years. That was a dismaying experience.

And it was one reason why I took a reasonably public and prominent role in criticising it. And I actually believe in the principle that former judges should, on the whole, not engage in politically controversial things unless they have a strictly constitutional or legal nature. But it seems to me that everybody has a threshold beyond which the issue is so serious that you have to stand up and be counted. And I felt that this was a change in the collective mentality of not just this nation, but European nations and North American nations generally, which had really sinister implications for the future of liberal methods of government. And it seemed to me this was far more important than any conventional limitations on what former judges ought to say.

FS: Do you think we’re going to get it back, that liberal mood, or do you think it is broken? 

JS: I’m both an optimist and a pessimist on this. It depends on what your timeframe is.

FS: How about the next 50 years?

JS: At the moment, we are in a mood which progressively jettisons basic liberal positions, like the observance of Rules of Procedure for government, which are more important than the outcome of any particular issue. And you’ve got to have a devotion to the rules, which transcends your attachments to particular issues, so that you do not regard it as an outrage when you lose on some, as you inevitably will. I also think that the classic liberal position on free speech is seriously undermined. I would expect these trends to continue for a while, certainly beyond my lifetime, and possibly beyond yours, I don’t know.

What will happen is that the current trend which is common to both Left and Right, to favour more authoritarian ways of doing things, to favour the idea that society should only have one view on something, and it is a political responsibility to determine what that view is going to be — all that is going to get worse. And I think that the ultimate result will be an authoritarian style of government across Europe and North America. North America may well be the first place that one sees it in its ultimate culmination. I think that at that point, people will say: “We don’t like this very much.” And at that stage, you will see a reversion to a more considerate model of social existence. I can’t say how long that’s going to take, but it might be decades.

FS: One example that you’ve been in the news talking about recently — which might seem to go against what you’re saying, in that it’s about leaving behind a set of rules — is the European Court of Human Rights. To some people, that court would be a nice example of a liberal institution respecting rules beyond individual tribes and nations. And yet, you want the UK to leave it?

JS: Yes. I don’t think this is likely to happen, but it would be a good thing if it did. I am not against a rule-based system and I am not against human rights. I simply think that we need to decide what human rights we want and to what degree we want them. At the moment, the problem is not the Convention itself, which is a collection of principles, not a single one of which I would question in any way. What I oppose is the legislative process by which the Strasbourg court, the European Court of Human Rights, has emancipated itself from the only thing that the states party to the Convention ever agreed, which was the text of the Convention. I do not think that it is the function of judges to revise the laws to bring them up to date — that is a function of representative institutions, certainly in a democracy.

So I would favour withdrawing from the European Convention and substituting it for an identical text, but simply interpreting it responsibly in accordance with what it’s intended to mean, and not in accordance with a wider political agenda — which I’m afraid is the animating spirit currently of the Strasbourg Court. I had hoped before that the Strasbourg Court would learn from the occasions when, particularly in this country, we have jibed at what they’ve done. I had hoped that things would improve as a result of the Brighton declaration, and its statement in favour of what was called, rather pompously, “subsidiarity”. I no longer believe that the Strasbourg Court is capable of independent reform.

FS: So you don’t mind the rules, but you think they’ve been politicised or they’re being incorrectly applied?

JS: I think the point about rules is that they’re designed to bring some kind of order to human affairs. If you have a rule which depends on whatever a legislator in Strasbourg thinks it ought to be, the essential predictability which rules are designed to achieve is gone. I have no problem about the notion of a foreign tribunal deciding whether our observance of human rights is adequate provided that the tribunal in question follows the rules. What I object to is a situation in which they require everyone else to follow rules of their own devising, but recognise no rules governing their own decisions.

FS: Do you think we should be renegotiating or reconsidering the Geneva Convention on refugees as well?

JS: I don’t know. I certainly think that the Geneva Convention was made for a different world: a world in which travel across national borders was a lot more difficult, and a lot more expensive. Originally, asylum rules were designed for very prominent national leaders of rebellious movements such as Lajos Kossuth, the great Hungarian nationalist of the 19th century. Then, in the wake of the catastrophe involving millions of displaced persons at the end of the Second World War, there was a strictly temporary Refugee Convention designed to enable these people to be resettled. In 1951, that was changed so that it became a permanent institution, and not limited to the persons displaced by the Second World War.

I think the people who agreed to that at the time did not appreciate that, with the disappearance of the European colonial empires, a lot of the world would come into chaos; that people suffering persecution would become very numerous — millions and millions in many countries of the world; and that, simultaneously, the improvements and the easing of the actual logistical difficulties of travel over long distances would enable lots of them to make their way towards the remaining ordered parts of the world.

FS: It sounds like you think the Geneva Convention is no longer fit for purpose?

JS: It isn’t fit for purpose, but whether one should depart from it is a different question. I confess that I’ve not studied this as carefully as I have studied the problems associated with the European Convention on Human Rights. I think it’s obvious that the Refugee Convention was made for a world that no longer exists. I am much less certain about what we should do about that.

FS: We’re going to go back to the late Middle Ages one last time. The whole series of volumes is about Britain (or England) and France — and whether they were to become one country or not. There was a moment when it looked like the Lancaster kings would manage to unify the kingdoms. That obviously didn’t happen. We retreated and the Channel became our border. 

You have a house in France. You spend a lot of time there. You were against Brexit, even though you’re now in favour of leaving the Strasbourg Court. Do you feel like we are more separate from Europe than at any time since the Hundred Years’ War?

JS: Well, before the Hundred Years’ War, England was a European polity because it ruled a significant chunk of western France. It was never an island politically until the Hundred Years’ War: it became one as a result of the war. But Britain has always engaged with the Continent. William Pitt the Younger was one of a number of people who remarked that the frontier of England is actually on the Rhine. He wasn’t asserting a right to rule everything on the western side of the Rhine. He was saying: that is the boundary on which our security depends. It’s not the Channel. So there’s a mixture of insularity and pre-European integration with Europe. It’s part of the dualism around British foreign policy that has always existed.

One of the reasons why I think that Brexit was a mistake was that it is a repudiation of five centuries of intelligently conceived foreign policy in Britain. The main policy of successive governments in Britain, since the 16th century, has been to avoid a situation in which a single power dominated the whole of continental Europe. That is why we went to war with Louis XIV at the start of the 18th century, with Napoleon at the beginning of the 19th century, and with Germany twice in the course of the 20th century.

What we have done by withdrawing is, first of all, to remove from the European system the principal opponents of the federalisation of Europe. We were undoubtedly the leading objectors to this, and we had actually successfully resisted it for many years. In this way, we have contributed to what will over the next few years become the greater unification of Europe. And at the same time, we have abandoned any possible claim to influence what it does. So we have done something that, it seems to me, has negated decades, centuries of serious thoughts about the strategic position of the United Kingdom in Europe.

FS: Would you vote to rejoin?

The problem about rejoining is that we wouldn’t get the golden terms that were there when we left — and that is a really serious problem. What I think will probably happen is that we will, over the next generation or two, conclude a succession of agreements with the European Union that will bring us closer to it without actually being members. And I would applaud that personally. Eventually, we may well decide that we might as well join and recover our influence.

FS: This is the perfect time to take some questions

Question One: In your Reith lectures, you talk about how the judiciary has usurped the legislature throughout many Western countries — and you give the particular example of the United States, and the controversial Roe v. Wade Supreme Court ruling. If you could advise the six conservative Supreme Court justices, what would you advise them moving forward?

JS: I can’t imagine a situation in which I would end up advising them — or a situation in which they would pay attention to me if I did. But it would be quite difficult.

The rationale of Dobbs v. Jackson Women’s Health Organization — the case which overruled Roe v. Wade — was that there was no constitutional right to abortion, from which it necessarily follows that the right to legislate on this subject reverted to the individual states. That view has been in keeping with the conservative view on the Supreme Court for a long time — although it was until recently a minority view: that the federal government, and the federal legislature, have intruded too far on the autonomy of the states.

FS: Do you think it’s a good thing that it’s gone back to the states?

JS: Yes, I do. I thought that Roe v. Wade was a bad decision because it took an intense moral issue on which a very large proportion of ordinary Americans had strong views of their own, and decided it in a way that marginalised and rendered irrelevant the views of the public. I think that was the main reason why in Europe, where regulated rights of abortion were introduced by legislation, the issue is pretty uncontroversial now. In every case, it was done by statutes. (The only country which doesn’t have a right of abortion tool now is Malta.) The result was that people, whatever their initial views, accepted it; they don’t in the United States because they were never consulted.

Although I think that Roe v. Wade was a very bad decision, I think that Dobbs was in a way an even worse one, because I actually believe that there ought to be a regulated right of abortion. But I do not believe that it is a fundamental right. I don’t believe that it is part of the United States Constitution or any other constitution that I know of. I think it’s a matter for legislative choice. And I think the sensible legislators will do what most European legislators have done.

I think the problem about Dobbs was that Roe v. Wade had survived for 50 years, and there was no respectable reason for departing from a judgement that had become part of the basic legal structure of life in the United States. The reasons given by the Dobbs court for overruling Roe v. Wade in spite of the precedence were to my mind wholly unconvincing. I do not agree with Justice Breyer’s justification of Roe v. Wade in principle, but I wholeheartedly agree with his view that — having decided Roe v. Wade the way that they did, and having in successive decisions of the Supreme Court reaffirmed it — they should not have disabled it.

Question Two: You said that the nation-state was coming back, and I wonder what your comment would be about the level of migration which we see in this country. The figure of net migration last year of about 600,000 was widely reported — do you think that will alter the legitimacy of the nation state?

JS: I don’t believe that the nation-state is inconsistent with very high levels of migration. I think there are other objections to very high levels of migration, but not that one. The classic example of the nation state in the modern world is the United States of America, which is entirely made up of ethnic and cultural minorities coming from elsewhere. It’s the great migration state.

An awful lot depends on the culture within the state, the ability of a society to absorb migrants, and to encourage them to adopt collective attitudes which are the same as those of the rest of the original population. I actually think that this country has been quite good at that — better, for example, than France, to name one obvious country, which has also suffered even higher levels of migration.

As to what can be done about it — the argument against high levels of migration is that it promotes insecurity, it strains resources, although migrants also create wealth as well as consuming it. But these are different arguments to the ones about the existence of the nation. What can one do about it, if one takes the view that migration is excessive? The answer is it’s a mixture of national and international measures. We have the misfortune to be an island. And it’s easier to get into an island than it is to a country with land borders. This sounds ironic, but the fact is, if you’ve got a land border, you can erect a physical barrier and keep people out who do not satisfy whichever test you choose to impose on new arrivals. If you are an island, you can’t erect a barrier in the middle of the sea. But actually, our own migration figures are not as large as those of Italy, France, Greece, Germany, or Sweden. So we are not we’re not in a unique position here.

FS: It’s notable also that the French are not being especially helpful in solving the boats situation in the Channel.

JS: One can understand that — they have a bigger migration problem than we do. And they are, no doubt, happy to see some of their migrants disappearing across the Channel.

Question Three: In the last 10 days or so we’ve heard a great deal about the law of armed conflict, and international humanitarian law, which seems to be a way of possibly stilling Israel’s hand. Both concepts grew out of the just war tradition, and I’m wondering, how recognised was that in the Hundred Years’ War and did it make any difference? And will international humanitarian law make any difference or is it really about the battle of the narrative?

JS: The notion of just war is a form of natural law. And it was much favoured by theologians and civil lawyers, the successors of the Roman law tradition. In the Middle Ages, it had virtually no practical impact on the way that wars were conducted. Current just war theories are very different because they’re essentially based on treaties, in particular the various Hague and Geneva Conventions, which control the way that we use force.

One of the rules, which has been in existence at least since 1908, is that you may not target civilians, and you may not conduct operations in a way that will inevitably produce casualties among civilians disproportionate to those among actual fighters. Now, these are quite difficult concepts to apply to a fighting force, which is not a disciplined army — of the sort that people had in mind in 1908 — but is a semi-organised group of, for want of a better word, thugs, like Hamas.

FS: Should we try, though?

JS: We should try. The difference is that more is expected of organised states like Israel, with disciplined armed forces recognising an orthodox hierarchy of command. So it seems to me to be perfectly clear that for the Israelis, to conduct the war on a basis that indiscriminately targets civilians is contrary to international law, and has been for quite a number of years. It’s also contrary to international law to forcibly displace people from their homes, to blockade them in the way that Israel has been doing certainly since 2007.

FS: So you believe Israel is breaking international law?

JS: I certainly believe that it has done and that what it threatens to do now would do.

Question Four: You mentioned the destruction of civil liberties that took place during the pandemic and what struck me especially was the abolition of negative liberty, and in particular, bodily sovereignty. Given the Hobbesian view that the security of the people is the supreme law, and given that power-hungry despots must certainly share that outlook or be aware of that, what’s to stop supranational opportunists, who may want a Leviathan, from seeking or even creating continuous insecurity and crises in order to impose their supreme law? Will we have solutions in search of problems?

JS: Well, the notion that Salus Populi Suprema Lex is actually due to Cicero and it is, to my mind, complete rubbish. The authorship of Cicero lends to it spurious respectability. But it’s actually a recipe for tyranny at a time of crisis. So I’ve never been impressed by that as a maxim of government. As to whether foreign powers or supranational authorities might promote disorder for the purpose of taking advantage, I don’t know any example where that is actually happening.

FS: I suppose maybe she was thinking about the World Health Organization, organisations like that, which might try to get the right to dictate pandemic policy in the future.

JS: That’s not creating disorder. The problem about that kind of thing is that it assumes that one size fits all. It seems to me that a completely uniform, internationally-regimented approach to dealing with, for example, a pandemic, would deprive us of the possibility of experimenting with a different approach. I think that one of the principal lessons of the pandemic was the success of Sweden in achieving a lower death toll than this country and a death toll broadly in line with the European average, without a lockdown. And it seems to me, therefore, that had we been deprived of that possibility by some kind of international arrangements, we would be much poorer. I’m in favour of a situation in which different pressures, different political situations, different constitutional positions, can produce a variety of solutions, because they are much more likely to ensure that one of them is right.

Question Five: You said previously that you think that in the near-future we probably will see a major shift towards authoritarianism across the West, and that the US might well be the first country to exhibit it. What concrete aspects, practically speaking, might take America, both politically and judicially, in that direction?

JS: I wasn’t necessarily thinking of judicial interventions. The United States has a very rigid Constitution. It has a fair-weather constitution. And the United States has had remarkably and unusually fair weather throughout its history. There have basically been only two periods of American history in which there have been serious economic difficulties. One was in the immediate aftermath of the Civil War, and the other was in the Thirties. So, America has experienced an upward trajectory, both in absolute terms, and relative to the rest of the world, for the greater part of its history.

The Great Destroyer of civil society is the disappointment of entrenched expectations. That was why most of Europe turned totalitarian between the wars. The Depression of the Thirties disappointed expectations of continuous upward movement which had become entrenched for a long time and had only briefly been interrupted by the First World War. I think that the problem that the United States has is that its rigid constitution, and in particular its legislative immobility is very ill-adapted to deal with a situation of long-term decline. I don’t think that the United States will decline in absolute terms. But I think it’s pretty clear that it will decline in its relative position in the world.

And I think that the implications of that for jobs that aren’t at the cutting-edge of technology are really very serious. And I don’t think that the Americans are likely to be very good at managing it. A much more flexible political constitution such as ours has managed to accommodate a significant relative decline since the Second World War rather successfully. And I am concerned that Trump and Trump’s doings and followers are not simply an incident related to this particularly extraordinary individual, but a symptom of a much broader malaise in the United States associated with capricious patterns of inequality, with the decline of traditional skills, and with the exportation of jobs, which is the inevitable result of the decline of traditional skills.

I am not optimistic about the future of the United States because I think that its current political travails are essentially part of a pattern that is dictated by the general situation of the country and its history, and not an unfortunate accident of the arrival of this particularly monstrous individual.

FS: Does that mean that you’re more optimistic about the prospects of the UK? Will our flexible constitution mean that we weather future declines better? 

JS: Yes, I think it will. But that doesn’t mean to say that we will avoid future decline. I think that the political consequences of decline will be much more serious in the United States than they are here. But decline is an uncomfortable experience, whether you accommodate it politically or not.

Triumph and Illusion, Volume V of Jonathan Sumption’s history of the 100 Years War, is out now.

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