Billigung

Billigung (pronounced bill-a-ghin)

(1) To approve.

(2) To acquiesce.

(3) Tacitly to accept; not to oppose.

(4) "Looking the other way" from something one would not wish to admit knowledge of; a means of creating a defense of plausible deniability; a self-denial of knowledge.

1300s: A Modern German form from the Old High German billīh (appropriate), from the Proto-Germanic biliz (merciful, kind, decent, fair), the variant being Billigung (approval; acceptance), the construct being billig(en) +‎ -ung (from the Middle High German -ung & -unge, from the Old High German -unga, from the Proto-Germanic -ungō; it was used to forms nouns from verbs, usually describing either an event in which an action is carried out, or the result of that action).  The third-person singular & simple present tense is billigt, the past tense is billigte, the past participle is gebilligt and the auxiliary haben.  In German, bein a noun there's always an initial capital but when used in English as a general descriptor (sepecially in a legal context), it usually all in lower-case.  Billigung is a noun and in German, there's no plural form although in English-language texts it might appear as "billigungs" for the sake of clarity. 

When wishing not to know, look the other way

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Reich Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.

Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.

Looking the other way.

In what he described as a “...leadership failure...", former Australian cricket captain Steve Smith (b 1989) has admitted he "didn't want to know about it" when he became aware “something” was being planned after seeing team mates in a dressing room discussion.  Their talks he witnessed were about ball-tampering, a form of cheating which came to be known as sandpapergate.  Billigung is one of those useful German creations (zeitgeist, schadenfreude etc) which in one word conveys what might in English take a dozen or more.  Operating somewhere on the spectrum of plausible deniability, Billigung is where someone hears of or perhaps “senses” something of which they’d prefer there be no admissible evidence of their knowledge; they “look the other way”.

Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

For some, Billigung might have come to mind when pondering the recording of a telephone call between then New South Wales (Australia) Premier Gladys Berejiklian and Daryl Maguire, another member of the same parliament with whom she was in an intimate relationship, a man forced to resign as an MP as a result of an (ongoing)  investigation by the NSW Independent Commission against Corruption (ICAC) for allegedly using his political influence in business activities.  Of interest was the premier’s use of the phrase "I don't need to know about that bit" when the former member began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of her then lover.  The words used by the then premier: "I don't need to know about that bit" may be compared with how Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.     

At the time the recording was made public, the former premier denied any wrongdoing beyond having appalling taste in men.  Apart from the men in her life (and not a few women would ruefully admit to having "had a Daryl"), she probably was unlucky.  Billigung has long been a part of that essential tactic of political survival: "plausible deniability".  Actually, as practiced these days, because standards of accountability seem to have declined a bit, denials needs no longer be plausible, just not actually disproven by a publicly available audio tape or film clip.  Others, beyond NSW, might be taking interest, especially those south of the border intimately involved in party machines who, apparently for decades, didn't notice certain things going on around them.     

On 1 October 2021, the NSW ICAC announced certain investigations into the former premier's conduct in office.  Specifically, ICAC is focusing on the period between 2012-2018 and her her involvement in the circumstances in which public money was given to a shooting club and a conservatorium of music and whether that conduct was “...liable to allow or encourage the occurrence of corrupt conduct by Mr Maguire”.  The ICAC will explore whether the conduct constituted a “breach of public trust” by placing the former premier in a position where a conflict of interest existed between her public duties and private interests “...as a person who was in a personal relationship” with Mr Maguire.  The commission will also investigate whether she failed to report what could be defined as reasonable suspicions that “...concerned or may concern corrupt conduct in relation to the conduct of Mr Maguire”.  As a point of law, the ICAC is concerned with actual substantive conduct and conflicts of interest.  It is not the test of "apprehended bias" applied to the judiciary where judgements can be set aside if a court finds there could have been a "reasonable perception" of bias or conflict of interest in some way involving a judge.  To the ICAC, any degree of perception, reasonable or not, is not relevant, their findings must be based on actual conduct.

On 1 October 2021, Berejiklian announced her resignation from both the premiership and the legislative assembly.  There are critics of the NSW ICAC who oppose the public hearings and feel its rules permit an exercise of powers rather too much like the Court of Star Chamber which they say it too closely resembles.  However, the former premier can reflect that unlike the IMT at Nuremberg, neither the Star Chamber nor the ICAC were vested with capital jurisdiction so there’s that.

Dieselgate and implausible deniability

Former Audi CEO Rupert Stadler (b 1963, right) with his lawyers Ulrike Thole-Groll (left) & Thilo Pfordte (centre) during his trial, Munich District Court, May 2023.

The billigung defense is still heard in German courts and if not always exculpatory, lawyers still appreciate its effectiveness in mitigation.  Rupert Stadler began his career with Audi AG (a subsidiary of the Volkswagen Group) in 1990 and between 2010-2018 was Audi’s Chief Executive Officer (CEO).  The scandal which came to be known as “dieselgate” involved companies in the Volkswagen group (and others) installing “cheat” software in diesel-powered vehicles so excessive exhaust emissions wouldn’t be detected during official testing and, after years of obfuscation, Volkswagen in 2015 admitted that was what exactly they’d done.  Civil and criminal proceedings in a number of jurisdictions ensued and thus far the fines alone have cost the group well over €34 million.  There have also been jail sentences imposed, something which presumably would have been in Herr Stadler’s thoughts when, in March 2018, Munich prosecutors named him as a suspect in their investigations.  A week later, he was arrested and held in an Augsburg prison, apparently as a precautionary move because it was claimed he was tampering with evidence by making a telephone call in which he suggested putting a witness “on leave”.  After a month, he was released on bail, subject to certain conditions.

In September 2020, Herr Stadler’s trial on charges of fraud began and for years (proceedings now take rather longer than in 1945-1946) he denied all wrongdoing until, in May 2023, he accepted a plea deal offered by Judge Stefan Weickert which would require him to admit guilt.  To date, he’s the highest-ranking executive to confess, tempted apparently by (1) the preponderance of evidence before the court which made it clear he was guilty as sin and (2) the deal limiting his punishment to a €1.1 million fine and a suspended sentence which would not see him jailed, an attractive alternative to the long term of imprisonment he otherwise faced upon conviction.  As confessions go however, it was among the more nuanced.  His lawyer read a statement saying the defendant (1) did not know that vehicles had been manipulated and buyers had been harmed, but (2) he acknowledged it was a possibility and accepted that, adding that in his case (3) there was a need for more care.  A classic piece of billigung, was the line (4) “I didn't know, but I recognized it as possible and accepted that the properties of diesel engines might not meet legal approval requirements” while the statement (5) “I have to admit the allegations overall” had an echo of Speer’s admission of “a general responsibility” while denying personal guilt.  Still, it must have conformed with the terms of the plea bargain because it was accepted by the judge.  His lawyer read the statement, apparently because he couldn’t bring himself personally to utter it but when asked by the judge if the words were his own, Herr Stadler replied (5) “Ja”.

Lindsay Lohan with Audi A5 cabriolet, Los Angeles, May 2011.  Ms Lohan apparently avoided being affected by the dieselgate scandal, all the photographs of her driving Audis have featured gas (petrol) powered cars.

Outside the court, his lawyer was a little more expansive, admitting her client had allowed vehicles equipped with manipulating software to remain on sale even after learning of the scam.  “In the course of addressing the diesel issue" after the revelations became public, Stadler “neglected” to inform business partners that cars with so-called defeat devices were still going on the market, meaning he was “accepting that vehicles equipped with the illegal software would go on sale” she said.  Although it may have been stating the obvious, she added Herr Stadler regretted he’d been unable to “resolve the crisis”.  The carefully composed text may however have averted another crisis, lawyers noting the cryptic nature of some of his comments might be explained by a desire not to create grounds for additional claims by consumers for financial compensation.

How that might unfold remains to be seen but on 27 June 2023 the Munich court handed down a 21 month sentence, suspended for three years, a fine of €1.1 million (US$1.2 million) also imposed; that will go to the federal government and charities, the court ruled without providing details.  Herr Stadler was the first member of the Volkswagen board member to be sentenced for his part in the scandal, the judgment coming some four years after prosecutors first laid fraud charges.  Guilty verdicts were also delivered against two former Audi executives: head of engine development Wolfgang Hatz (b 1959) and lead diesel engineer Giovanni Pamio (b 1963) who were handed suspended jail sentences of 24 months and 21 months, respectively.  Hatz was fined €400,000 (US$437,000) and Pamio €50,000 (US$55,000).  All three were guilty as sin so the verdicts were unsurprising.

Dr Angela Merkel (b 1954; chancellor of Germany 2005-2021) & Dr Martin Winterkorn (b 1947; CEO of Volkswagen AG 2007-2015).

The long-running scandal (the fines and settlements thus far ordered having cost the group some €33 billion (US$36 billion)) still has some way to run because the case against former CEO Martin Winterkorn has yet to be heard although he’s already agreed to pay VW €11.2 million (US$12.3 million) after an internal investigation found he failed properly to respond to signs the company may have been using unlawful technology which enabled its diesel engines to evade emissions testing and it's not yet clear if Dr Winterkorn will try the billigung defense.  Herr Stadler was required to pay VW €4.1 million ($US4.5 million) under terms agreed following the same investigation.  The company clearly wished to move on and in separately issued statements, Volkswagen and Audi said they were not party to Tuesday’s proceedings, which should be “viewed independently” of proceedings against the companies which had (in Germany) been finalized in 2018.  Audi seemed anxious to confirm it was now a righteous corporation, saying “Audi has made good use of the crisis as an opportunity to start over.  We have updated our systems, processes and checks to ensure compliance company-wide.”  It concluded by noting it had since “cultivated and strengthened a culture of constructive debate.”  In exchange for agreeing to pay the fines, prosecutors dropped criminal charges against Volkswagen and Audi.  

Appellate

Appellate (pronounced uh-pel-it)

(1) Of or pertaining to that which can be reviewed by a power or authority vested with the necessary jurisdiction.

(2) A court, tribunal or other body having the power or authority to review and decide appeals made against decisions issued by subordinate individuals or institutions; that which legally can be appealed to.

1726: From the Classical Latin appellātus (called upon, summoned), past participle of appellāre (to appeal) and perfect passive participle of appellō (address as, call by name), the construct being ad (to, towards) +‎ pellō (push; impress).  The noun appellant (one who appeals from a lower to a higher court) dates from the 1610s, from the Anglo-French & French appellant, noun use of present participle of the French appeller (make an appeal), from the Old French apeler, from the Latin appellare (appeal to).  Appellate is an adjective and appellant is a noun; the noun plural is appellants.

Unrelated to the hierarchy of courts, there are words used formal grammar and linguistics including the noun appellative (a common noun; an epithet), the adjective appellative (of or pertaining to an appellative noun or common noun; of or pertaining to ascribing names), the noun appellativeness (the state or quality of being appellative), the adverb appellatively (after the manner of appellative nouns; so as to express whole classes or species and the noun appellativization (the process of a proper name becoming a common noun (such as hoover; kleenex; google etc)).  The antonym is proprialization (White House, Grand Canyon etc).  The noun appellation (designation, name given to a person, thing, or class) entered English in the mid-fifteenth century, from the twelfth century Old French apelacion (name, denomination), from the Latin appellationem (nominative appellatio) (an addressing, accosting; an appeal; a name, title), the noun of action from the past-participle stem of appellare (address, appeal to, name).  An appellation is a descriptive and specific term (Joan of Arc’s appellation was Arc; John the Baptist's was Baptist while those who were most associated with the political discussions which culminated in the formation of the United States of America (USA) are given the appellation “Founding Fathers”.  An appellation differs thus from an official or honorary title such as earl, bishop, general, professor etc but technically, these too are appellations.  The adjective appellative dates from the early fifteenth century (of a noun, serving to name or mark out, common (as opposed to proper))," from the Latin appellativus, from appellat-, past-participle stem of appellare (address, name, appeal to).  As a noun, it was in use by at least the 1590s in the sense of “a common” and by the 1630s as a “title or descriptive name”.

Courts of appeal

Appellate courts, usually styled as courts of appeal, are those vested with the jurisdiction to an appeal from a subordinate court within the same hierarchy.  In Australia, as a general principle, the court system exists in three layers (1) a trial court, (2) an intermediate appellate court and (3) a final court of appeal although variations exist and appeals from lower courts are not always of right; in many cases an application for leave to appeal can be declined.  Details of appellate jurisdiction in English courts appear in Sir William Blackstone's (1723–1780) Commentaries on the Laws of England (1765–1769), a matrix which has since been a thing of repeated change.  The hierarchical nature of the appellate food-chain is of significance because ultimately it's the final stage which is decisive: A case might for example be heard by eleven eminent judges, one in the supreme court at first instance, three on a court of appeal and seven at a high court so if the first appeal is decided 3-0 and the final 4-3 then one party can have enjoyed the concurrence of 7 of the 11 yet still lose.  That's how the appellate system works.

The Australian court systems are now unitary which means that, depending on the law(s) involved, the avenue of appeal lies to a state, territory or Commonwealth court, appeals to the Privy Council (actually the Judicial Committee of the Privy Council (JCPC)) in London sundered for Commonwealth matters in 1968 and for those involving the states in 1986 by the Australia Acts although there is one historic relic.  Section 74 of the constitution provides for an appeal from the High Court of Australia (HCA) to the the Privy Council if the court issues a certificate that it is appropriate for the Privy Council to determine an inter se (a case concerning constitutional relations between the Commonwealth and one or more states or between states) matter.  The only such certificate was issued in 1912 and in 1985, the High Court judges (unanimously) observed that the power to grant such a certificate “…has long since been spent… and is obsolete".  However, it’s there with full legal force so, in the strict constitutional sense, an appeal from the HCA to the JCPC, however unlikely, remains possible.

In the matter of Grand Theft Auto (GTA5): Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

Truly a martyr, Lindsay Lohan hasn't had much luck in appellate courts.  In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey (b 1951; associate judge of New York Court of Appeals from 2015-2021) wrote in his ruling.  Judge Fahey's words recalled those of Potter Stewart (1915–1985; associate justice of the US Supreme Court 1958-1981) when in Jacobellis v Ohio (378 U.S. 184 (1964) he wrote: “I shall not today attempt further to define… and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it…”  Judge Fahey knew a basic white girl when he saw one; he just couldn't name her.  Lindsay Lohan's lawyers did not seek leave to appeal.

In happier times: Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

Also not having much luck with a matter taken on appeal is former New South Wales (NSW, Australia) Premier Gladys Berejiklian, compelled in 2021 to resign after being found to have committed an act of Billigung, her crucial phrase in a secretly recorded conversation being "I don't need to know about that bit" when her then (secret) lover began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of Mr Maguire.

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Nazi Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.  Had he then told the truth, he'd have been hanged.

The words used by Ms Berejiklian: "I don't need to know about that bit" are best understood in modern use as an attempt to manufacture "plausible deniability" and may be compared with how Herr Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.  There's obviously quite some difference between knowledge of the Holocaust and the dodgy dealings of a politician but the Billigung principle is the same. However, the former premier may have been comforted that unlike the IMT at Nuremberg, the ICAC wasn't vested with capital jurisdiction so there was that.

Enjoying their pipes: Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.     

On 1 October 2021, the NSW ICAC (Independent Commission against Corruption) announced an investigation into the former premier's conduct in office, later handing down a finding she had committed “serious corrupt conduct”.  Interestingly,  despite that, the ICAC made no recommendation criminal charges be pursued because the evidence Ms Berejiklian was required to provide to the ICAC wouldn’t be admissible in a court because there, the rules of evidence are different and a defendant can’t be compelled to provide an answer which might be self-incriminating.  In other words a politician can be forced to tell the truth when before the ICAC but not before a court when charged.  That’s an aspect of the common law’s adversarial system which has been much criticized but it’s one of the doctrines which underpins Western law where there is a presumption of innocence and the onus of proof of guilt beyond reasonable doubt lies with the prosecution.

Ms Berejiklian challenged the findings and validity of the ICAC’s findings, her appeal heard by the NSW Court of Appeal, the state’s highest appellate court.  Her grounds for the appeal were claims (1) the ICAC made errors of law and (2) their report may have been delivered outside its legal authority due the expiration of the term of one of the ICAC’s assistant commissioners prior to the report being delivered.  In a split (2-1) decision handed down in July 2024, the court dismissed the appeal (with costs), the dissenting judge finding that because one assistant commissioner was engaged as a consultant after her term had expired (a role which included assisting in drafting the final report and writing assessments of the credibility of witnesses including Ms Berejiklian) what they did was act outside the limits of the authority conferred on a consultant.  The majority disagreed, finding the appointment as a consultant was in all ways “valid and effective” and also rejected the other grounds cited in the appeal.

So the ICAC’s finding of “serious corrupt conduct” stands.  Responding to the court’s decision, Ms Berejiklian didn’t mention that “c-word”) but thanked the court for its consideration given “...the limited nature of a challenge that can be made to ICAC findings by any citizen.  As the court noted, the ICAC Act does not permit a ‘merits’ review of the findings of ICAC.”  She also noted the split decision and concluded “Serving the people of NSW was an honour and privilege which I never took for granted. I always worked my hardest to look after the welfare and interests of the people of NSW.” 

Appellate courts, the hair police and black letter law

Appellate courts are best known for their rulings in cases of great public interest or legal significance; in the former category these typically are those involving celebrities, sex or anything especially gruesome and in the latter, constitutional matters.  There are exceptions (and some appellate courts do also function in certain specialized matters as courts of first instance) and the US Supreme Court (USSC) has agreed to hear parking-ticket and other minor matters if the law under which a conviction was obtained happened in a jurisdiction where the offence was deemed one of absolute liability and an appeal not permitted.  In those matters, the court held that in the US, a legal principle existed that the state could not convict a citizen of something without granting a means of appealing the decision.  Courts of appeal also hear the quirky and bizarre and in 2022 an appeal was lodged in the Supreme Court of Japan, a young woman in Osaka Prefecture seeking to overturn a ruling from the Osaka High Court that her former high school’s rules and guidance forcing her to dye her brown hair black were lawful.

The young lady had in 2015 enrolled in a high school (operated by the prefectural government) and in the original case (decided by the Osaka District Court) she alleged teachers had at least weekly told her to dye her hair black, instructions which continued despite her explanation she was born with brown hair and it was her natural color.  In September 2016, she began refusing to go to school, her suit against the prefectural government alleging she had suffered mental stress.  In 2021, the district court ordered the prefectural government to pay ¥330,000 (US$3,100) to the former student for certain actions (such as such as removing her name from school rosters after she stopped attending) but ruled also the school’s enforcement of the hair-related regulation exceed the discretionary authority it had been granted.  The plaintiff took the case to Osaka High Court (the first appellate layer) which held that, on the basis: “a wide range of discretion must be permitted for school education in order to allow diversified educational guidance in line with individual and collective conditions”, the ruling of the district court was upheld.  The case was well publicized and attracted much public interest (and comment) and, presumably nudged, the Osaka’s Prefectural Board of Education undertook a survey of rules at high schools under their control but concluded the “compulsory black hair” rule was “necessary”, issuing a statement saying “We will meticulously explain the necessity in order to gain understanding from students’ parents”.  That didn’t please the by now bolshie (former) schoolgirl and in her appeal to the Supreme Court (the next appellate layer) claimed banning brown hair was “unconstitutional”, citing Article 13 of Japan’s Constitution, which stipulates people’s right to pursue happiness.

The case attracted the interest of Doshisha University’s Professor Kayoko Oshima (b 1959) who explained the substantive matter was more the repeated demands the girl “dye her hair black rather than the rule itself”, his point being that the purpose of the rule was to prevent the dying of hair to ensure lurid greens or blues (or, God forbid, blondes) weren’t seen and in the case of someone with natural brown hair, the ruling shouldn’t be enforced.  In other words, for these purposes there should be the legal fiction that “brown is black”, something like the “honorary white” status the Apartheid-era South African government would sometimes grant to visiting PoCs (persons of color; typically athletes or politicians).  The rule, according to the professor, was thus rational but, in certain circumstances, its enforcement was not; an example of the “unintended consequences” which sometimes occur in the application of “black letter law”.

While the matter proceed through Japan's not especially rapid civil system, news organizations began reporting other interesting rules school impose on their female students including mandating white underwear and banning pony-tails on the basis that were the nape of the neck so scandalously to be exposed, it would risk “sexually exciting” male students.  Hair color, length and pony-tails are subject obviously to visual inspection but it's not clear if the underwear dictates are enforced by the same method.  The wide publication of these rules drew much derision and in response, early in 2022, the Tokyo prefecture announced those with natural hair other than black would no longer be required to dye to conform and that underwear need no longer exclusively be white.  The Tokyo authorities took an omnibus approach to reform, announcing also that a wider range of hairstyles would be permitted including the “two-block” (short on the sides and back while long on top) which was interesting because like the also permitted bob, the risk of napes being flaunted was obviously there.  Legal observers commented it was an example of a typically Japanese attempt to be flexible yet not be seen over-turning long defended-rules.  Thus the pony-tail proscription stands even though its rationale was undermined by the new permissiveness extending to the bob; again, black letter law.  Collectively, the “draconian rules” are known in Japan asブラック校則 (buraku kosoku) (black rules) and they have existed since the 1970s when it was noted “foreign influences” were beginning to intrude, resulting in previously unknown "behavioral issues".  As well as hair color and seductive pony tails, the most rigorously policed seems to have been skirt length, particular attention devoted to detecting the devious trick of “skirt-folding”, the standard workaround for those seeking the “above-knee look”.  Knees, it would seem, are thought as potentially provocative as the naked nape of the neck.

Ai Nishida San (b 1992) as she is (left) and as her school decided history would remember her (left).

Interestingly, high-tech Japanese school administrators have proved that even if the day comes when they can no longer make black hair compulsorily, with a little judicious digital editing, retrospectively they can make it seem as if uniformity is maintained.  In 2021, one student circulated a “before & after” pair of images, one her school photograph in untouched form (left), the other as it appeared in her school’s yearbook (right), the latter with hair in an acceptably shiny black.  Commenting on the editing, the former student said the message conveyed by the practice was it “…enforces the idea that black straight hair, a stereotypically Japanese look, is right”, the obvious implication being anything else is wrong and thus un-Japanese.  Her school had actually been accommodating, telling her that because it was her natural color, she was exempt the attention of the hair police and she thought little more about it until she received her 2007 yearbook when she realized she had been rendered “more Japanese”.  Ai Nishida San called the school’s actions “racist” and while, in the narrow technical sense, it might be more correct to suggest the motives were “racialist”, it’s certainly either and hardly in the spirit of the submission Japan’s delegation made to the Paris Peace Conference (1919-1920), arguing for racial equality to be recognized as one of the core concepts underpinning international relations in the post-war (which turned out to be the inter-war) era.

Ensorcell

Ensorcell (pronounced en-sawr-suhl)

(1) To bewitch; to cast a spell.

(2) Figuratively, (ie not involving witchcraft proper), a  woman's ability to captivate or enchant another (historically a man or men).

1535–1545: From the French ensorceller, from the Middle French ensorceler (to bewitch), a dissimilated variant of the Old French ensorcerer, the construct of which was en- (from Old French en-, a prefixation of Latin in (in, into)) + the verb from sorcier (sorcerer; wizard).  The ultimate root of sorcier was the Latin sors (fate, lot; oracular response; destiny, fate or fortune of an individual), from the primitive Indo-European ser- (to bind).  The alternative spelling is ensorcel.  Ensorcell & ensorcelling  are verbs, ensorcelled is a verb & adjective and ensorcellment is a noun; the noun plural is ensorcellments.  In English, the French verb ensorceler has been used as a noun.  

Despite the pedigree of the words from which it comes reaching back to antiquity. the verb ensorcell (to cast a spell or bewitch) didn’t appear in English until the sixteenth century and then only briefly, use not revived until the nineteenth century when the explorer Sir Richard Burton (1821-1890) included it in The Tale of the Ensorcelled Prince, a translation of a title of one of the Arabian Nights Tales (1885).  Ensorcell had appeared in Henry Torrens’ (1806-1852) earlier (partial translation) The Book of The Thousand Nights and One Nights (1838) which Burton had read and admired.  Prior to this, the only known instance in English was in George Puttenham's (1529-1590) Arte of English Poesie (1589), which was reprinted in the early nineteenth century and Torrens may have picked it up from there.  Thanks to the efforts of Burton, Torrens and others, in the imagination of the West, the art of ensorcellment became much associated with the women of the East, one of the themes Edward Said (1935-2003) would explore in his still controversial Orientalism (1979).

Victims

“She came forward swaying from side to side and coquettishly moving and indeed she ravished wits and hearts and ensorcelled all eyes with her glances.”  (The Tale of the Ensorcelled Prince in Arabian Nights stories (1885) by "Scheherazade", translated by Sir Richard Burton).

Ensorcell is one of those words in English which may have proved useful had it ever come into general use but it remained rare and now inhabits the niche of translations of exotic texts or tales of witchcraft and sorcery.  For most purposes the many alternatives are preferable:  hypnotize, fascinate, enthrall, stupefy, tickle, bewitch, captivate, please, delight, beguile, cajole, wow, enrapture, attract, mesmerize, enamor, gratify, charm, entice & thrill.  However, the word can be used to discuss men who are victims of beguiling women and there have been many:

Men who have been victims of ensorcellment, clockwise from top left: Bill Clinton (b 1946; US president 1993-2001) with Monica Lewinsky (b 1973); Barnaby Joyce (b 1967; thrice (between local difficulties) deputy prime minister of Australia 2016-2022) with Vikki Campion (b 1985), Welsh actor Richard Burton (1925–1984) with Elizabeth Taylor (1932–2011) (depicted here by Grant Bowler (b 1968) with Lindsay Lohan (b 1986) on-set in Cleopatera (1963) (Liz & Dick, 2012); & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018) with Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021).

Bill Clinton was one of the best & brightest minds ever to become POTUS but he was way too simple for Washington DC.  Anyone from New York could have told him there are low-risk ways to have affairs but if you have a fling with with a Jewish girl from Beverly Hills it's going to cost you something sometime.  So he's a victim but has only himself to blame, having already been ensorcelled by crooked Hillary Clinton (b 1947; US secretary of state 2009-2013).

Barnaby Joyce was a happily married man with four daughters until ensorcelled by his media advisor (a profession which appears to regard ensorcellment as a calling given their history with other National Party politicians).  Still, the adulterous couple later married and their two children were able to attend the wedding so all's well that end's well.

The other Richard Burton was the Welsh actor ensorcelled by fellow thespian Elizabeth Taylor.  As his turbulent life would suggest he wasn't one to learn from his mistakes because she managed twice to ensorcell him, their first marriage (1964-1974) enduring a little over ten years, the second (1975-1976) a bare ten months.  It was Dr Johnson (Samuel Johnson (1709-1784)) who said “A second marriage is a triumph of hope over experience.” and Burton doubtless knew of the quote so he too has only himself to blame.  When he died at 58 after decades of heavy drinking, it was said of him his body was like that of Randolph Churchill (1911-1968) who expired at 57: "Everything was just worn-out."

Gladys Berejiklian's ensorcellment of Daryl Maguire didn't end well with the former premier resigning after being found by the NSW Independent Commission against Corruption (ICAC) to have acted corruptly for, inter alia, an act of Billigung.  In the court of public opinion she did rather better, the consensus being something between "she was too good for him" and "what on earth was she doing with him?"  On-line and in print, there was much sympathy for her from other ensorcelers, anxious to assure her she wasn't alone and "every woman has had a Daryl"  Nobody seemed to express any sympathy for Mr Maguire so clearly the verdict was to "blame the victim".

Surplus

Surplus (pronounced sur-pluhs)

(1) Something that remains above what is used or needed.

(2) In agricultural economics, produce or a quantity of food grown by a nation or area in excess of its needs, especially such a quantity of food purchased and stored by a governmental program of guaranteeing farmers a specific price for certain crops.

(3) In accounting, the excess of assets over liabilities accumulated throughout the existence of a business, excepting assets against which stock certificates have been issued; excess of net worth over capital-stock value.

(4) In public finance, an excess of government revenues over expenditures during a certain financial year.

(5) In international trade, an excess of receipts over payments on the balance of payments.

(6) In economic theory, an unsold quantity of a good resulting from a lack of equilibrium in a market.  For example, if a price is artificially high, sellers will bring more goods to the market than buyers will be willing to buy.  In classical economics, the opposite of shortage.

(7) In Chancery law (and its successor courts), the remainder of a fund appropriated for a particular purpose.

1325–1375: From the Middle English surplus, from the Old French sorplus (remainder, extra), from the Medieval Latin superplūs (excess, surplus), the construct being super (over) + plūs (more).  The Italian surplus was a borrowing from modern French where surplus had existed since the twelfth century while in English, surplus has been used as an adjective since the fourteenth century.  Enjoying the same pronunciation, surplice and surplus are often confused.  A surplice is a liturgical vestment of the Christian Church, usually styled as a tunic of white linen or cotton material, with wide sleeves and often some lace embellishment or embroidered edges.  Lengths vary; in medieval times it reached almost to the ground but tends now to be shorter; some still retain the longer garments for the ceremonial.  As surplis, it was a thirteenth century Middle-English borrowing from the Anglo-French surpliz, a syncopated variant of Old French surpeliz, derived from the Medieval Latin superpellīcium (vestīmentum) over-pelt (garment), neuter of superpellīcius, the construct being super (over) + pellīt(us) (clothed with skins or fur) + -ius (the adjectival suffix).  A clerical surplice is thus a kind of frock; a clerical surplus means "too many priests".  Surplus is a noun, adjective & verb, surplusage is a noun and surplused & surplussing are verbs; the noun plural is surpluses or surplusses.

Surplus Repression

German-American Herbert Marcuse (1898–1979), a sociologist and philosopher, highly influential in the mid-late twentieth century.  Even today, Marcuse enjoys a cult following and remains a hate-figure for those on the right who trace the ills of Western civilization to the corrosive influence Marxist & neo-Marxists exerted on youth in the newly expanded universities in the 1960s & 1970s.

A critique of capitalism’s culture and economic arrangements, Marcuse's book Eros and Civilization (1955) drew, inter alia, from Karl Marx (1818-1883) and Sigmund Freud (1856-1939) and described an alternative structure for society.  He didn’t reject Freud’s idea that repression of man's instinctive desires was necessary for civilization to endure but Marcuse distinguished between basic (or necessary) repression and surplus repression, detailing the differences between the biological vicissitudes of the instincts and the socially imposed.  His construct was that basic repression was that which man suppresses to permit peaceful societies to form; repression or modification of the instincts being necessary “…for the perpetuation of the human race in civilization.”  Surplus repression meant those “…restrictions necessitated by [the] social domination” of the particular ruling-class or hegemony.  The purpose of surplus repression was to shape the instincts of individuals to conform to the requirements of modern capitalism, a surrender to what Marcuse called the “performance principle”, a construct building on Marx’s theories of alienation and surplus value.

Lindsay Lohan and her lawyer in court, Los Angeles, 2011.

Marcuse's writing did have the attraction of being more accessible than that of Marx or Freud (and certainly that of many neo-Marxists or Freudians) but that also meant it was easier for critics to cherry pick the points they found most objectionable.  For an explanation of why society need to be organized the way it was, conservatives seemed to prefer the rationalization of the "harsh but deliciously clever" English philosopher Thomas Hobbes (1588–1679) best known for his book Leviathan (1651) in which appeared the memorable passage describing the life of man in a world where there existed no restraining authorities forcing people to repress their worst instincts:

In such condition, there is no place for industry; because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving, and removing, such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.

Such a culture Hobbes called the "state of nature" by which he meant not an environmentally sustainable hippie commune but a place in which there was "bellum omnium contra omnes" (war of all against all) and murder went unpunished except by another murder.  Although the distinction is now an unfashionable one to draw, conservatives liked the way Hobbes seemed to know not all cultures were civilizations and that a little surplus repression was a small price to pay for for its benefits.  Hobbes lived through troubled times and his views on the importance of stable, strong governance should be understood as the writings of one who had seen what the alternative looks like but as a list of exculpatory bullet-points, his world view was one which could be ticked off by by the ayatollahs in Tehran or the CCP (Chinese Communist Party).  Marcuse is not so transportable.

Peace man: PotM (Playmate of the Month) Debbie Ellison (b 1949) on the cover of Playboy magazine, September 1970.  That year's PotY (Playmate of the Year) was Sharon Clark (b 1943).  With due respect to Ms Ellison, sometimes, it really may have been bought for the articles: Michael G Horowitz's profile of Marcuse was published in this edition.  The old curmudgeon of the left wouldn’t have had much sympathy for hippies and their piece sign because neither appeared to be doing much to bring on the revolution and was anyway once heard to remark: “Ach, women!  Useless in a revolutionary situation!”

Playboy titled the profile Portrait of the Marxist as an Old Trooper although the author (one of the philosopher's old students) preferred to call the piece a "personality snapshot" and it certainly had a different flavor than what would have been found in the activist press or journals of political science.  Years later, the author would concede some of his critique of Marcuse's work was misplaced and many of the old pessimist's predictions had (unfortunately) transpired.  That said, Marcuse seems never to have complained about the piece, unlike Albert Speer (1905–1981; Nazi court architect 1934-1942; Nazi minister of armaments and war production 1942-1945) whose interview by Eric Norden, conducted over an apparently convivial ten days in the “richly furnished living room of his spacious home” in Heidelberg, was published in Playboy’s June 1971 edition.  Speer would later complain the piece had been “…restructured, with words and formulations entirely foreign to me.”  He did however conclude “…on the whole the interview as printed corresponds with my opinions…” by which he meant Nordon was yet another to accept an recycle his core position: “If I didn't see it [the Holocaust], then it was because I didn't want to see it.”  That was the so-called “Billigung defense” which Speer since 1945 had, in a masterful manner, used simultaneously to accept a collective guilt yet absolve himself of individuality responsibility.  Others no more guilty but less cunning had been hanged at Nuremberg and the Playboy interview was printed years before material was discovered in the German federal archives documenting his part in the persecution of Jews and the unearthing of private correspondence in which he admitted knowledge of the holocaust and its awful, chilling rationale.  As one of his biographers, Gitta Sereny (1921–2012), rightly pointed out in Albert Speer: His Battle with Truth (1995): “If Speer had said as much in Nuremberg, he would have been hanged.”

Marcuse’s work was acknowledged as a landmark in the synthetization of Marxist and psychoanalytic theories but was criticized for being just another of the "pointless utopian myths" written of since antiquity, work cut adrift from the moorings of the political reality which seemed in the 1960s more urgently to demand attention.  Marcuse acknowledged the distance of his work from reality and conceded his theories could reach actualization only by revolution or gradual infiltration of the structures of the power-elite and, after the disappointments of the moments in 1968 when revolution fleetingly was in the air, he preferred the latter.  German student activist Rudi Dutschke (1940–1979) had advocated a "…march through the institutions of power", radically to change society from within government and cultural institutions by becoming part of the machinery and structures under which capitalism operated.  This too owed a debt to the theories of hegemony and Marcuse wrote to Dutschke in 1971 saying he “regarded your notion of the "march through the institutions" as the only effective way.”  It all failed.  It was the highly unusual coincidence of political, economic & demographic circumstances in the post war (1948-1973) Western world which briefly in 1968 made the system seem internally vulnerable and the hegemony learned the lesson: they would control who manned the institutions that matter and the trouble-makers could march through things like theatre trusts, literary festivals and art gallery committees.