The latest skirmish in a long-running and bitter dispute between a publisher and a philosopher could soon unfold in Oxford University's "Parliament of Dons". Philosophy teacher Andrew Malcolm is taking his grievances to Oxford's Congregation, where members, including all senior academic staff, debate and vote on university business.
Malcolm is hoping that Congregation will vindicate him in his latest battle against Oxford University Press (OUP). Malcolm lost a court case to OUP in 2001 when he sued for breach of an agreement sealed in court in 1992 concerning his book Making Names. He was ordered to pay £12,500 in legal fees. Steadily building inside support, Malcolm hopes to soon have enough signatures from congregation members to have a motion to annul the legal costs discussed.
This is the latest development in a long saga which has veered back and forth from farce to tragedy. The story begins in 1984 when Malcolm submitted Making Names - an original and unconventional A-level philosophy text - to Oxford University Press. In the book, Malcolm, takes an approach to the subject which has been hailed by one critic as "fun, deserving and resourceful". A 200,000-word Platonic dialogue, Making Nameswas described as "an exceptional piece of work, highly unusual in both its content and presentation" by Roy Edgley, a former professor of philosophy, in his courtroom testimony.
The two main characters of the book, Professor Cause and Doctor Effect, discuss everything philosophical from the mind/body problem to atomic theory as they encounter their relevance in the practical situations of an eventful day. Sir Karl Popper, who thought "very highly of Malcolm's gifts", described Malcolm in writing Making Names as having "the heart of a dramatist and the soul of a poet." When Malcolm first approached OUP, they judged Making Names would appeal to "people with a general interest in science on the one hand and literature on the other", being "a very unconventional piece of publishing".
All books published by OUP have to be approved by a meeting of "delegates" - dons who are the ultimate arbiters of what OUP publishes. According to the political philosopher and then delegate Alan Ryan, the managing director Richard Charkin, wanted to "gallop ahead" with the book. Ryan said that "it would be nice to take a chance and win, and after all the 'downside risk' isn't too drastic if we don't."
After Malcolm worked for months implementing changes to Making Names suggested by OUP, the new philosophy editor Nicola Bion wrote to him saying, "I have now had the reports on your revised typescripts and discussed them with colleagues. The news is not good, I'm afraid... We still don't feel that it works." Consequently, no publishing contract was offered.
Malcolm sued for breach of contract in 1986 and won on appeal in 1990. The terms of settlement were then agreed out of court. In what would prove to be a crucial move, these terms including a "gagging order" and were sealed in court by Chancery Master Barratt in 1992. The gagging or "Tomlin" order ordered "Oxford University, it servants and agents not to publish or solicit the publication of any derogatory statements letters or articles about Mr Malcolm or about the merits or quality of the work (Making Names)." Malcolm believed that the terms of the consent order made legal history, since it was the first time that a gagging order had restricted a university's freedom of speech.
That might have been the end of the story. It turned out just to be the beginning. Malcolm continued his battle, morally rather than legally this time. He published Making Names himself in 1992 under the imprint AKME and in 1998 followed it up with The Remedy, the story of Malcolm's in and out of court ordeal with OUP.
Malcolm was clearly refusing to let the issue die and in 2001 the debate returned to the letters pages of the Times Higher Educational Supplement (THES). In one letter published in April of that year, Alan Ryan, now a professor in political philosophy at Oxford, described Making Names as "coarse and jeering". In Malcolm's view these comments contravened the gagging order, so he sued the Oxford University once again. However, this time he lost. In the name of academic freedom, the Honourable Justice Lightman defined the Tomlin order so that Ryan's comments in the THES were not in fact a breach of contract. Malcolm was ordered to pay £12,500 in legal fees.
Justice Lightman's ruling, described by Malcolm as an "exaggeratedly mad judgement" vindicates Ryan on the basis that he is paid by New College Oxford where he is head of house, rather than by the university. He is therefore considered to be an independent contractor (albeit without a contract) and not an agent or servant of the university. On this ground Ryan was under no legal obligation that prohibited him writing the offending letter to the THES. Malcolm protested that such a ruling rendered him and his book defenceless against the kinds of criticism that the Tomlin order was supposed to prevent. But according to Ryan "the notion of a legal agreement that would curtail his opinion is not on."
According to Malcolm, in what he describes as a "a Lewis Carroll situation - the more powerful you are the less you have to do with it," it follows from the judge's ruling that the university's vice-chancellor and pro-vice-chancellor are not servants or agents of the institution and over which they exercise the highest authority. Echoing Malcolm's thoughts, Henry Hardy, the OUP commissioning editor involved in the original botched publishing deal, thinks "law and morality have parted company".
Oxford literature don Valentine Cunningham agrees. "Strictly legally speaking, Alan Ryan is not an employee of Oxford but morally speaking he belongs to the university. It makes me very angry that [Oxford University] can wash their hands of responsibility on convenient occasions." Both sympathisers think it "shabby" and "unfair" to make Malcolm pay and would definitely support a move to have the issue discussed in congregation. In order to stir up some indignation and to raise awareness, Cunningham is proposing to write an article in the Oxford Magazine - an in-house platform on which to voice grievances.
In order to raise the legal costs he was ordered to pay, Malcolm turned from author to merchant. He opened up a shop, Akme Expression, in the heart of Oxford in April of this year. With walls adorned with newspaper clippings of every story that has embarrassed Oxford in recent times, and effigies of Oxford dons clutching bloodstained knives, Malcolm's shop also served as a way of venting his frustrations. It is clear that the fight has taken its toll.
Trading for just three months, the lease ran out at the end of June and Akme Expressions is now closed. However, according to Malcolm, his shop has defiantly sowed some seeds. Although he would have liked to see more students venture in, at a ball to mark the shop's closure, strategically timed to coincide with Oxfords Trinity May Ball, Henry Hardy, local MP Dr Evan Harris and Oxford University physics professor Josh Silver all came to show their support.
Malcolm refuses to disclose how many books he sold in his shop, but whether or not Making Names is a commercial success it did receive some good reviews. So why didn't OUP publish it?
According to to Charkin, 100,000 books get published a year and most get good reviews somewhere along the line. He now claims that Making Names was ultimately rejected on the grounds that it did not fill what he considers to be the three main criteria for publishing a book. For Charkin, who now works for Macmillan, a book should be published if it is a good book, if a good author writes it or if it is a book that would make money.
Malcolm, of course begs to differ. He claims that internal tensions between Charkin and Hardy were the real reason for the book's rejection. Hardy himself said there was a "personal absence of chemistry" between himself and Charkin.
After 16 years and over half a million pounds, whatever the merits of the book, it is clear that all parties would have saved a lot of time, money and aggravation had a few copies been published. Even Alan Ryan agrees. He thinks that OUP was silly not to publish Making Names. "Publishing", he says, "is like taking any other gamble, you only bet if you can afford to lose and OUP could." Despite his distaste for the way the book was written he also concedes that a lot of people would have liked it.
But, as it is, Malcolm is forging onwards, although he will have to wait until the start of the next academic term to see where his fight will take him. To have his case discussed by congregation Malcolm believes he needs 20 signatures from congregation members. At present he has a mental list of 12. In the meantime his campaign continues as his "name and shame" display on the shop front of Akme Expression remains - at the discretion of the local council.
Making Names and The Remedy can be ordered from Andrew Malcolm's website at www.akme.btinternet.co.uk
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