I recalled this now-famous statement when I first picked up Law in a Time of Crisis, a new book by Lord Jonathan Sumption QC. With a such a title, I thought, surely Sumption would engage with that notable dissent and the dilemma in moments of crisis between judicial deference to the government and the courts’ role as a bulwark of liberty. It is no easy question – and, in these Covid times, it is particularly salient. The thoughtful reflections of a former Supreme Court judge (Sumption retired from Britain’s highest court in 2018), I envisaged, would make for a timely and insightful read.

I was disappointed, then, that Liversidge was not mentioned once and that the question of law in a time of Covid was addressed only in the underdeveloped final chapter. That is not a criticism per se – Law in a Time of Crisis is a lively, thought-provoking collection of essays that covers vast ground, from British medieval history to the economics of personal injury law. It is an engaging book, frequently challenging orthodox positions and inviting readers to think critically. The book’s breadth underscores Sumption’s formidable intellect (Tony Blair’s long-time spokesperson, Alastair Campbell, once said that Sumption had a ‘brain the size of a planet’). But it is misleadingly titled. This is not primarily a book about law in a time of crisis, but rather a wide-ranging exploration of law and society. Its final section, four essays under the heading ‘The Constitution: Towards an Uncertain Future’, addresses Brexit and Covid – no doubt the inspiration for the title. But it is not until the final, twenty-page chapter that Sumption engages with the law’s role amid our current crisis.

If one can overlook this disjuncture, there is much to enjoy within Law in a Time of Crisis. Each chapter is drawn from speeches Sumption has given over the past decade, updated to take into account recent developments. In the foreword, he suggests they are linked by a concern with different aspects of ‘law and public affairs’. That is certainly one overarching theme. But the other, which adds a great deal to the analysis, is the history of law – informed by the author’s training.

Sumption began life as a historian at Oxford, before jumping ship for life as a barrister (he concedes the motive was not ‘a thirst for justice’ but instead ‘rather vulgar … I wanted to be able to pay my grocery bills, with perhaps a bit more left over than an academic salary could offer’). But throughout Sumption’s distinguished career at the London Bar and then at the Supreme Court, he still found time to toil in the archives and produce outstanding academic works of history, including a four-volume, 3,000-page history of the Hundred Years War, one volume of which won the Wolfson History Prize.

He brings this dual perspective to the diverse topics considered in this book, Sumption’s second non-history publication, after Trials of the State (2019), though perhaps they are not dual perspectives at all. The first chapter, ‘The Historian As Judge’, explores the nexus between the disciplines, suggesting that ‘the study of the common law is an intensely historical process’. This is no doubt true, and Sumption, given his background, offers some astute observations about the ways law and history intertwine.

Historical enquiry continues through the essays. A chapter on the influence of the Magna Carta, often considered a foundational statement of civil liberties in Britain (and, by extension, Australia) is particularly noteworthy. Sumption arrays a range of sources from before and after King John signed the charter in 1215 to argue that it was actually not all that significant. ‘Claims such as those I have just cited,’ he writes, having canvassed the many adjectives used to describe the Magna Carta, ‘are high-minded tosh.’ Instead, Sumption suggests the document did no more than restate obligations on the monarchy that had already existed for over a century. ‘There are no high-flown declarations of principle,’ he writes. ‘No truths are held to be self-evident.’

Sumption’s thesis is well argued and supported by forensic historical analysis. He recognises that the Magna Carta might still have symbolic salience, even if it stems from a myth rather than any foundation in reality. But, he retorts: ‘Do we really need the force of myth to sustain our belief in democracy?’ It is a thoughtful essay, indicative of the wider tone of the collection – a sideways, often contrarian take on different facets of the law. Sumption’s contrarian nature is evident in the postscript to the chapter, where he notes that it was originally a speech given in 2015 at the British Library to mark the opening of an exhibition on the Magna Carta’s 800th anniversary; ‘an occasion,’ he writes, ‘for a great outpouring of platitudinous humbug and national self-congratulation’. (The audience, according to a Guardian journalist present, was so stunned that no one had any questions.)

Other essays in the collection cover ground from state secrecy to contract law. Sumption makes the astute point that efforts towards transparency – such as archival requirements and freedom of information regimes – may be counter-intuitively detrimental to historical record keeping, as public servants and government officials use post-it notes and WhatsApp messages to circumvent the risk of later embarrassment. Sumption concedes that it is ‘a great deal easier to identify these problems than to suggest ways of dealing with them’, but offers a critique of British reforms that have brought forward the date of disclosure for archival material.

An essay on ‘home truths about judicial diversity’ is similarly engaging, as Sumption explores the challenges of improving diversity among the upper echelons of the legal profession to ensure it better reflects the make-up of society. It is an informed perspective, as Sumption was a member of Britain’s Judicial Appointments Commission, which in 2006 assumed the previously political function of appointing judges (Australia lacks an equivalent). The ex-judge’s exploration of the ongoing barriers to progress are perceptive, although his injunction that ‘we have to make choices and to accept impure compromises. We may even have to learn patience’ does sound a little tone-deaf coming from an Eton-educated white man, however well intentioned.

The final essay, from which the book takes its title, concerns the British response to Covid-19. Sumption has been an outspoken critic of public health measures in Britain throughout the pandemic, and, true to form, ‘Government by Decree’ is the most provocative essay in the collection. Some of his criticisms – such as the lack of parliamentary oversight of pandemic measures – are compelling and have equal salience in Australia. But the essay is heavy on criticism and light on alternatives. Britain’s Covid response may well have been the worst of both worlds – heavy-handed and not all that effective (with ten million cases and 150,000 deaths since March 2020). But other democracies, including Australia, have demonstrated that short-term deference to emergency powers can ultimately be for the greater good.

As the ongoing debate about Victoria’s new pandemic laws has underscored, striking the right balance between legal limitations and executive authority in an emergency is not easy. Greater reflection on the appropriate balance, and the mechanisms to achieve it, is no doubt required. Law in a Time of Crisis is a great read. But it adds little to that wider task.