Jolyon Maugham QC (Photo by Jeff J Mitchell/Getty Images)

Taking the clown seriously

Jolyon Maugham’s prose is funny, but his ideas are dangerous

Jolyon Maugham cannot help but be a comic figure. His new “book”, Bringing Down Goliath, is a tedious, almost unreadable combination of Pooterisms, delusions of grandeur, and descriptions of his tweeting — intermixed with rambling thoughts. It has been ably taken down for its absurd lack of substance by Yuan Yi Zhu’s coruscating review in The Times. Since then, Maugham has reinforced his commedia dell’arte role as a stock fool by comparing himself to  Gandalf and Gandhi, attacking reviewers as conspiratorial, and generally behaving with all the decorum of a fox caught in a chicken coop. Like any good fool, Maugham believes himself to be a tragic hero, and lashes out, usually quite amusingly, at anyone who fails to see him as a modern day David (hence the book’s title), a shepherd selected to bring in a new era of justice. 

As much as it pains me to say it, I think that Maugham has a point, though not in the way he intends. His work is worth taking seriously, not because it has any scholarly, literary, or other value (it is precisely as awful as Zhu’s review describes), but rather, because beneath the many, many layers of accumulated idiocy, Bringing Down Goliath represents an ideological attack on the foundations of the rule of law. Its rhetoric would be dangerous in the hands of a competent author, but even allowing for Maugham’s fumbling fingers, the ideas espoused in this book should worry anyone who cares to maintain the rule of law in the United Kingdom.

Bringing Down Goliath: How Good Law Can Topple the Powerful, WH Allen, £16.69

Maugham’s thesis can initially seem paradoxical. If adhering to the rules should frustrate a political goal he dislikes, he insists upon it; if adhering to procedure frustrates it, he condemns judges’ inability to look beyond a case in isolation. Judges who agree with him are heroic for breaking with legal orthodoxy, while judges who disagree let their Tory bias overcome the same orthodoxy. Maugham is not against wide judicial power — he wants judges to use a political end goal as justification to unilaterally abrogate Parliamentary sovereignty, yet he also thinks that judges put right-wing political ends ahead of following the law. The government ought to be confronted and reined in, except where the government does something he likes (like the provision of gender medicine), in which case he condemns “judicial overreach”. The judges of Scotland are wrong for not using the nobile officium in an unprecedented action to (pre-emptively) compel the government not to break the law in future, but when a ruling goes the other direction, and judges break new ground in a way that hurts the Good Law Project, Maugham demands restraint.  

This is, surprisingly, not hypocrisy.  Like many convinced of their own righteousness, Maugham arrives at a seemingly hypocritical conclusion by fanatical sincerity. The explanation for these contradictions is simply that, to Maugham, ideology is the first condition of judging, and the law is merely an instrumentality to achieve his preferred political ends.  A good judge, to Maugham, is a judge who will implement Maugham’s preferred political outcomes. 

Given how confused the rest of his writing is, Maugham is strikingly clear on this point. Judicial diversity, for example, is not good if judges simply reflect the population they serve. The “real problem” which diversity must solve is changing the sort of judgments that come down, so that judges take the “political context” into account in the way Maugham likes. A judge who comes from a demographic that makes them close to a “feminism of privilege” (apparently, being older and female?) is likely to issue suspect decisions. Maugham wants a judiciary which speaks not with many voices (which, of course, is the definition of diversity) but rather “a single voice”, presumably one which is in perfect concord with him. Maugham doesn’t mind if his political goals are achieved either by a written constitution (which judges cannot pass) or judges simply judicially inventing one. 

From his perspective, independence is not a good per se

To this end, Maugham criticises the British system of drawing lawyers from the legal profession, because lawyers are professionally trained to preserve the public image of neutrality. (Maugham seems not to realise that countries with professional magistratures on the Continent often have administrative judges more deferential to the government than British ones, but law, comparative or otherwise, isn’t his strong suit, so we can forgive him here)  He also calls for databases, to be used for judicial promotion, tracking the outcomes of judicial decisions and identifying which judges produce the right (ie, left)  sort of outcomes. Maugham is not simply talking about jurimetric analysis of decisions, since that has existed for decades, with many academic studies quantifying judicial ideology. (It is possible Maugham simply doesn’t know this field exists) Instead, he wants judges’ professional futures to be tied to the content of their decisions. From his perspective, independence is not a good per se. It is only good insofar as it means judges are independent of the ideas and politicians he happens to dislike. 

On my (woe is me) second read of the book, as I tried my best to approach this as a serious ideological document, Maugham’s view of the judiciary increasingly seemed to me to resemble that advanced (with similar bloviating and tedium) by Chinese president Xi Jinping. The Chinese Communist Party is eager to tout its commitment to the ‘rule of law’, by which they really mean rule by law. The purpose of the judiciary is to achieve the end goals of the parties, and the idea of judicial independence is a trap. Judges are held responsible for their decisions, which are tracked in much the way Maugham desires.   

Maugham would presumably point out that his instrumentalism is distinct because Maugham is not an authoritarian.  Maugham is certain his ends are right and therefore his desired means must themselves be right. The problem, however, is that Maugham doesn’t realise that the means of the rule of law are an end in themselves. I happen to agree with Maugham on many political ends — I share, for instance, his distaste for Brexit and dislike of the venal Matt Hancock. However, where I (where anyone who believes in a liberal democracy) must irrevocably part with Maugham, is that I prize the rule of law far above any particular political end. There is no political goal I have which comes before the maintenance of the rule of, not by, law.  

For that reason, this book deserves to be taken seriously, because the ideology underlying it is disturbing and dangerous. It is fortunate that the book is so incompetently written that it is likely to turn readers against Maugham’s philosophy, but that is no reason for complacency. It may not be quite coherent enough to be a threat to the rule of law, but it is a dangerous watershed in the mainstreaming of an ideology utterly inimical to our present legal system.

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