Catharsis

Catharsis (pronounced kuh-thahr-sis)

(1) The purging of the emotions or relieving of emotional tensions, especially through certain kinds of art, as tragedy or music.

(2) In psychiatry, a form of psychoanalysis or psychotherapy that encourages or permits the discharge of repressed, pent-up, socially unacceptable affects.

(3) The discharge of pent-up emotions so as to result in the alleviation of symptoms or the permanent relief of the condition.

(4) In Aristotelian literary criticism, the purging or purification of the emotions through the evocation of pity and fear, as in tragedy.

(5) In medicine, purgation, especially of the bowels.

1770: From the New Latin catharsis, from the Ancient Greek kátharsis (a cleansing) equivalent to kathar, variant stem of kathaírein (to cleanse, purge, purify), from katharós (pure, clear of dirt, clean, spotless, open, free, clear of shame or guilt, purified) + sis.    Root was the Medieval Latin Catharī (the Pure), from the Byzantine Greek καθαροί or katharoí (the Pure), plural of καθαρός (katharós) (pure).  It was probably Aristotle (384-322 BC) who was most influential in having catharsis assume its common, modern meaning: “the purging or purification of the emotions through the evocation of pity and fear, as in tragedy”.  It was in chapter VI of his Περὶ ποιητικῆς (Peri poietikês) (Poetics) he used the word in his definition of “tragedy” and although scholars have for centuries (inconclusively) debated exactly what he meant, the critical sentence was: “Tragedy through pity and fear effects a purgation of such emotions.”  The orthodoxy has long been his idea was: the tragedy having aroused in the viewer powerful feelings, it has also a therapeutic effect for after the storm and climax comes calm, a sense of release from tension, of calm (stuff purged from mind and soul).  Aristotle's Poetics remains the earliest work of Greek dramatic theory known to have survived and the first extant philosophical treatise solely to focus on literary theory, many of the definitional terms (author, poet, comedy, tragedy etc) still used today in his original sense.  In a way, he may even have been the one to have established the notion of literary theory as an idea or discipline so the work was seminal and he can’t be blamed for postmodernism.

Most of the extended senses found in Modern English are of unknown origin, the original sense from 1770 being "a bodily purging" (especially of the bowels), then an important aspect of medical practice.  After 1872 it came to be applied to emotions when it was referred to as "a purging through vicarious experience"; the psychotherapy sense first recorded in 1909 in Abraham Brill's (1874–1948) translation of Sigmund Freud's (1856–1939) Selected Papers on Hysteria  (Dr Brill’s translation the first of Freud into English).  The alternative spelling cathartick went extinct in the mid-nineteenth century while the adjective cathartic dates from its use in medical literature in the 1610s in the sense of preparations claimed to be "purgative; purifying"; more general use noted by the 1670s.  Presumably, the cures proved efficacious because the adjective cathartical soon emerged, existing also in the plural as the noun catharticals (laxatives; purging made literal).  Cathartine was a hypothetical substance once imagined to cause the bitterness and purgativeness of the dried leaves or pods of senna plants (sennapod tea remains a popular mild laxative).  Catharsis is a noun, cathart is a verb, cathartanticatharticic & anticathartic are nouns & adjectives; the noun plural is catharses.  The specialized uses in medicine include anticathartic (preventing a purging), anacathartic (inducing vomiting), emetocathartic (that is emetic (inducing nausea & vomiting) and cathartic) and hemocathartic (that serves to cleanse the blood).

The term “Catherine wheel” was originally from the early thirteenth century and described a torture device, the spiked wheel on which (according to some versions of what is thought to be a most dubious tale) the legendary virgin Saint Catherine of Alexandria was in 307 tortured and martyred by the pagan Marcus Aurelius Valerius Maxentius (circa 283–312; a Roman emperor, 306-312), thus becoming, in the associative way the Church did these things, patron saint of spinners.  She was a most popular saint in medieval times and popularized the name Catherine (and its variations), the favor enduring to this day.  It was applied from 1760 to a kind of firework which shot flame from a revolving spiral tube, creating the shape of a spinning wheel.

The modern catharsis is a public event, best enjoyed after emerging from rehab:  Lindsay Lohan (b 1986) and Oprah Winfrey (b 1954), 2013. 

Cathar (religious puritan (implied in Catharism)), dates from the 1570s and was from the Medieval Latin Cathari (the Pure), the name taken by the Novatians and other Christian sects, from the New Testament Greek katharizein (to make clean), from the Ancient Greek katharós (pure).  It was applied particularly to the twelfth century sects (Albigenses etc) in Languedoc and the Piedmont which denied and defied the authority of the pope.  The feminine proper name Catherine is from the French Catherine, from the Medieval Latin Katerina, from the Classical Latin Ecaterina, from the Ancient Greek Aikaterine.  The -h- was introduced in the sixteenth century, probably a tribute in folk etymology from the Greek katharos (pure).  Familiar in Modern English also as Katherine, Kate, Cate and other variations, the initial Greek vowel preserved in the Russian form Ekaterina.  For reasons unknown, Catherine began to be used as a type of pear in the 1640s. 

Of the Cathars: Catharism

With origins in Persia and the Byzantine Empire, Catharism was a dualist (or Gnostic revival) fork of Christianity, the movement most active during the twelfth and thirteenth centuries in what is now northern Italy and southern France.  It was not a good time to be promoting the notion of two Gods, one good, the other evil; this dualism was however the essential core of Cathar beliefs.  The good God was the God of the New Testament and the creator of the spiritual realm, contrasted with the evil Old Testament God, creator of the physical world and this being many Cathars (and not a few of their persecutors) identified as Satan.  It was an exacting creed in which all visible matter (including the human body), was created by the evil god and therefore tainted with sin.  Taint might be an understatement; Cathars thought human spirits were the lost spirits of angels trapped within the physical creation of the evil god, destined to be reincarnated until they achieved salvation through what they called the consolamentum, a highly ritualized form of baptism.

The Holy See's foreign policy when the pope did have a few divisions: The papal army, the Cathars & the Albigensian Crusade.

All this was heresy to the monotheistic Roman Catholic Church, founded on the fundamental principle of one God, the creator of all things temporal and spiritual.  The Church’s crackdown got serious during the pontificate of Innocent III (circa 1160-1216; pope 1198-1216), initially by means of political and theological persuasion but with the assassination of his emissary, Innocent abandoned diplomacy, declared his dead ambassador a martyr and launched a military operation, the twenty-year (1209-1229) Albigensian Crusadel; it was the beginning of the end of Catharism and after 1244 when the great fortress of Montsegur (near the Pyrenees) was razed, the Cathars became an underground movement, many fleeing to Italy where the persecution was milder.  The hierarchy faded but the heresy lingered until it finally it vanished early in the fifteenth century.

Simone Weil.

Simone Weil (1909-1943) was a French philosopher and political activist who, in a manner unusual among left-leaning intellectuals of the era, returned to the religion ignored in her youth and became attracted to the mystical.  Remembered for her political writings and active service in both the Spanish Civil War and occupied France, she died tragically young in the self-sacrificial manner she had lived her life.  Among the more delicate historians, (typified by Arnold Toynbee (1889-1975)), there’s often an undisguised preference for Greek over Roman but few went as far as Weil who could find no virtue in the latter and was barely less dismissive of the medieval Church.  By contrast, in the Cathars, she found exemplars of goodness although she offered few reasons and fewer still shreds of evidence for this.  Most convincing is the notion that what Weil called malheur (affliction) went beyond merely describing suffering and made of it, if not a fetish, then certainly a calling.  Weil felt there were only some able truly to experience affliction: those least deserving of suffering.  Seduced by the lure of the tragic and having trawled history, she found in the Cathars the doomed victims with whom she could identify, drawn to them as Sylvia Plath (1932-1963) was to Ted Hughes (1930–1998; Poet Laureate 1984-1998).

Simone Weil agitprop.

Although her readership remains substantially limited to those clustered around a number of academic and feminist circles, Weil’s influence on literature has been profound.  She wrote neither fiction nor poetry but in her prolific output, existing mostly in letters and notebooks (in her lifetime almost wholly unseen and edited for publication only posthumously), lay an extraordinary exploration of the contradictions and confusion of the modern world.  One gains much from reading Weil for despite her tone there’s pleasure in enjoying the lucidity and discovering an uncompromising critique of a world poisoned by the exclusivity of Christianity and its damnation of progress as heresy.  But guilt tinges the pleasure.  This tortured soul lived and died in anguish and dark despair because she knew she deserved no more in a world of where injustice had triumphed and probably forever would.  One fears that in all her brief years, she may never have felt a moment’s joy.

Comet

Comet (pronounced kom-it)

(1) In astronomy, a celestial body moving about the sun, usually in a highly eccentric orbit, most thought to consist of a solid frozen nucleus, part of which vaporizes on approaching the heat from Sun (or other star) to form a gaseous, luminous coma (the envelope of dust and gas, the most dramatic part of which is the long, luminous tail which streams away from the sun (under the influence of solar winds).

(2) In astronomy, a celestial phenomenon with the appearance of such a body.

(3) Any of several species of hummingbird found in the Andes.

(4) In slang, as “vomit comet”, a reduced-gravity aircraft which, by flying in a parabolic flight path, briefly emulates a close to weightless environment.  Used to train astronauts or conduct research, the slang derived from the nausea some experience.

(5) In figurative use (often applied retrospectively and with a modifier such as “blazing comet”), someone (or, less commonly, something) who appears suddenly in the public eye, makes a significant impact and then quickly fades from view, their fleeting moment of brilliance a brief but spectacular event.

1150–1200: From the Middle English comete, partly from the Old English comēta and partly from the Anglo-French & Old French comete (which in Modern French persists as comète), all from the Latin comētēs & comēta, from the Ancient Greek κομήτης (komḗtēs) (wearing long hair; ling-haired), the construct being komē-, a variant stem of komân (to let one's hair grow), from κόμη (kómē) (hair) + -tēs (the agent suffix).  The Greek was a shortened form of ἀστὴρ κομήτης (astēr komētēs (longhaired star)), a reference to a comet’s streaming tail.  The descendants in other languages include the Malay komet, the Urdu کومٹ (komeṭ) and the Welsh comed.  Comet, cometlessness, cometography, cometographer, cometology & cometarium are nouns, cometless, cometic, cometical, cometocentric, cometary, cometographical & cometlike (also as comet-like) are adjectives, cometesimal is a noun & adjective; the noun plural is comets.

Comets orbit the Sun along an elongated path and when not near the heat, the body consists solely of its nucleus, thought to be almost always a solid core of frozen water, frozen gases, and dust.  When near the sun, the nucleus heats, eventually to boil and thus release the gaseous and luminous coma (the envelope of dust and gas), the most dramatic part of which is the long, luminous tail which streams away from the sun (under the influence of solar winds).  The path of a comet can be in the shape of an ellipse or a hyperbola; if a hyperbolic path, it enters the solar system once and then leaves forever while if it follows an ellipse, it remains in orbit around the sun.  Astronomer divide comets into (1) “short period” (those with orbital periods of less than 200 years and coming from the Kuiper belt) and (2) “long-period” (those with an orbital period greater than 200 years and coming from the Oort cloud).

Before the development of modern techniques, comets were visible only when near the sun so their appearance was sudden and, until early astronomers were able to calculate the paths of those which re-appeared, unexpected.  Superstition stepped in where science didn’t exist and comets were in many cultures regarded as omens or harbingers of doom, famine, ruin, pestilence and the overthrow of kingdoms or empires.  It was the English astronomer, mathematician and physicist Edmond Halley (1656–1742; Astronomer Royal 1720-1742) who in 1682 published the calculations which proved many comets were periodic and thus their appearance could be predicted.  Halley's Comet, named in his honor, remains the only known short-period comet consistently visible from Earth with the naked eye and remains the world’s most famous; it last appeared in 1986 and will next visit our skies in 2061.

Comet wine: Non-vintage Alois Lageder Natsch4 Vigneti Delle Dolomiti.

Halley’s findings put an end to (most) of the superstition surrounding comets but commerce still took advantage of their presence.  A comet with a famously vivid tail appeared in 1811 and in that year, Europe enjoyed a remarkably pleasant autumn (fall) which was most conducive to agriculture and became associated with the abundant and superior yield of the continental vineyards.  For that reason, the vintage was called the “comet wine” and the term became a feature in marketing the product which emerged from any year in which notable comets were seen, a superior quality alleged (and thus a premium price).  Wine buffs say any relationship between the quality of a vintage and the travel of celestial bodies is entirely coincidental.

Red Comet: The Short Life and Blazing Art of Sylvia Plath (2021) by Dr Heather Clark (b 1974).

One of things about the feminist cult which is now the construct of Sylvia Plath (1932-1963) is that her mistreatment at the hands of her husband Ted Hughes (1930–1998; Poet Laureate 1984-2008) tends to obscure her work which many quite familiar with the story of her brief life will barely have read and that’s perhaps predictable, certainly for those for whom the lure of tales of tragic woman and brutish men is a siren.  As human tragedies go, her story is compelling: A precocious talent, the death of the father to whom she was devoted when only eight, the suicide attempt while a student and the burning ambition to write and be published.  Almost as soon as she met Ted Hughes she knew he was “my black marauder” and their affair was one of intense physicality as well as a devotion to their art, something which might have endured during their marriage (which produced two children) had Hughes not proved so unfaithful and neglectful.  In 1963, as an abandoned solo mother in a freezing flat during what entered history as London’s coldest winter of the century, she took her own life while her two babies slept nearby, becoming a symbol onto which people would map whatever most suited their purposes: the troubled genius, the visionary writer, a feminist pioneer and, overwhelmingly, a martyr, a victim of a man.  To his dying day, feminists would stalk literary events just to tell Hughes he had “Sylvia’s blood on his hands”.

So the story is well known and in the years since her death there have been a number of biographies, critical studies, collections of letters, academic conferences; given that, it’s seemed by the 2020s unlikely there was much more to say about one whose adult life spanned not even two decades.  For that reason the 1000-odd densely printed pages of Dr Heather Clark’s Red Comet: The Short Life and Blazing Art of Sylvia Plath was a revelation because, as the author pointed out, her life “has been subsumed by her afterlife” and what was needed was a volume which focused on what she wrote and why that output means she should be set free from the “cultural baggage of the past 50 years” and shown as “one of the most important American writers of the twentieth century.”

Sylvia Plath in Paris, 1956.

Red Comet is thus far this century’s outstanding biography and a feminist perspective is not required to recognize that when reading her last poems (written in obvious rage but sustaining a controlled tension few have matched) that she was a profoundly disturbed woman.  Most clinicians who have commented seem now to agree her depression of long-standing had descended to something psychotic by the time of her suicide, a progression she seems to have acknowledged, writing to one correspondent that she was composing poetry “on the edge of madness”.  This is though a biography written by a professional literary critic so it does not construct Plath as tale of tragedy and victimhood as one might if telling the story of some troubled celebrity.  Instead, the life is allowed to unfold in a way which shows how it underpins her development as a writer, the events and other glimpses of the person interpolated into the progress of a text through drafts and revisions, each word polished as the poet progresses to what gets sent to the publisher.  Red Comet is not a book for those interested in how much blame Ted Hughes should bear for his wife killing herself and in that matter it’s unlikely to change many opinions but as a study of the art of Sylvia Plath, it’s outstanding.  Unlike many figurative uses of "comet", Plath continues to blaze her trail. 

Pre-production de Havilland Comet (DH 106) with the original, square windows, England, 1949 (left) and Comet 4 (Registration G-APDN) in BOAC (British Overseas Airways Corporation (1939-1974 which in 1974 was merged with BEA (British European Airways) and others to later become BA (British Airways)) livery, Tokyo (Haneda International (HND / RJTT)), Japan October 1960.

The term hoodoo is often attached to objects thought jinxed.  When the de Havilland Comet (DH 106; the first commercial jet airliner), within a year of its first flight in 1949, began to suffer a number of catastrophic in-flight accidents, newspapers wrote of the “Comet hoodoo”, something encouraged because, in the pre “black-box” era, analysis of aviation incidents was a less exact science than now and for some time the crashes appeared inexplicable.  It was only when extensive testing revealed the reason for the structural failures could be traced to stresses in the airframe induced aspects of the design that the hoodoo was understood to be the operation of physics.  Other manufacturers noted the findings and changed their designs, Boeing's engineers acknowledging the debt they owed to de Havilland because it was the investigation of the Comet's early problems which produced the solutions which helped the Boeing 707 (1957) and its many successors to be the successful workhorses they became.  As a footnote, by the time the Comet 4 was released in 1958 the problems had been solved but commercially, the project was doomed and reputational damage done.  Between 1949-1964, barely more than 100 were sold although many did provide reliable service until 1981 and the airframe proved adaptable, dozens of military variants produced, the most notable being the Hawker Siddeley Nimrod, a maritime patrol version which was in service with the Royal Air Force (RAF) until 2011.

It’s because of the lessons learned from the Comet hoodoo that the apertures of airliner windows have rounded edges, the traditional four-cornered openings creating four weak spots prone to failure under stress.  In the early 1950s there was much optimism about the Comet and had it been successful, it could have given the UK’s commercial aviation industry a lead in a sector which rapidly would expand in the post war years.  One who didn’t express much faith in his country’s capacity to succeed in the field was the politician Duff Cooper (1890–1954) who, shortly before taking up his appointment as the UK’s ambassador to France, was flying on an Avro York (a transport and civil adaptation of the Lancaster heavy bomber) and he noted in his diary: “I think the designer of the York has discovered the shape of an armchair in which it is quite impossible to be comfortable, if this is typical of the civil transport plane in which were are to compete against the US, we are already beaten.”  As Lindsay Lohan’s smiles indicate, as least on private jets, the seats are now comfortable.

Not quite an Edsel, not yet a Mercury: The 1960 Comet; it was an era of imaginative (other use different adjectives) styling (and at this time they were still "stylists" and not "designers").

The Mercury Comet, built in four generations between 1960-1969 and another between 1971-1977, had a most unusual beginning.  The Ford Motor Company (“FoMoCo”, Mercury’s parent corporation) had in the mid 1950s studied the five-tier (Chevrolet, Pontiac, Oldsmobile, Buick, Cadillac) branding used by General Motors (GM) and decided it too would create a five divisional structure (which by 1955 Chrysler had also matched).  The GM model dated from the 1920s and was called the “ladder” (GM at times had as many as nine rungs) and the idea was each step on the later would take a buyer into a higher price (and at least theoretically more profitable) range of models.  There was a time when this approach made sense but even in the 1950s when Ford embarked on their restructure it was beginning to fragment, the implications of which would become apparent over the decades.  Thus Ford ended up (briefly) with five divisions: Ford, Mercury, Edsel, Lincoln and Continental.  That didn’t last long and Continental was the first to go, followed soon by the still infamous Edsel and the corporation even flirted with the idea of shuttering Lincoln.

1963 Mercury Comet S-22 Convertible.

The original plan had been for the Comet to be the “small Edsel” but by the time the release date drew close, the decision had been taken to terminate the Edsel brand so the Q&D (quick & dirty) solution was to sell the car through the Lincoln-Mercury dealer network, an expedient which lasted for the 1960 & 1961 model years before the Comet was integrated into the Mercury range and badged appropriately.  The early Comets were built on the Falcon platform (“compact” in contemporary US terms) but when the 1966 range was released, the cars became “intermediates” (ie the size between the “compact” and “full-size” platforms).  The Comet name was withdrawn from use after 1969 but was in 1971 revived for Mercury’s companion to the Maverick, Ford’s replacement for the compact Falcon which slotted above the Pinto which was smaller, requiring the industry to coin the class-designation “sub compact”.  Cheap to produce and essentially a “consumer disposable”, the Maverick and Comet proved so popular they continued in production for a season even after their nominal replacements were in showrooms.

1967 Mercury Comet Cyclone "R Code", one of 60 built that year with the 427 cubic inch (7.0 litre) FE side-oiler V8 and one of the 19 with a four-speed manual transmission.

The Mercury Comet has never attracted great interest from collectors because few were built with the more robust or exotic drive-trains found more frequently in both the competition from GM & Chrysler and the companion versions from Ford.  The mid-range performance package for the general market was the Comet Cyclone, introduced in 1964 to replace the Comet’s earlier S-22 option; neither were big sellers but they were not expensive to produce and remained profitable parts of the Mercury range.  In 1968, during the peak of the muscle car era, Mercury sought to promote the line, dropping the Comet name and promoting the machines as the “Cyclone”, now with quite potent engines although the emphasis clearly was drag racing rather than turning corners; the high performance package was now called the “Cyclone Spoiler”.  For the NASCAR circuits however, there was in 1969 the Cyclone Spoiler II, one of the so-called “aero cars”, the better known of which were the much more spectacular, be-winged Dodge Daytona (1969) and Plymouth Superbird (1970).  Chrysler’s cars looked radical to achieve what they did but the modifications which created the Mercury Cyclone Spoiler II and Ford Torino Talladega were so subtle as to be barely noticeable, the most effective being the increased slope on the lengthened nose, the flush grill and some changes which had the effect of lowering both the centre of gravity and the body.  The Ford and Mercury might have been a less spectacular sight than the Dodge or Plymouth but on the tracks the seeming slight tweaks did the job and both were among the fastest and most successful of their brief era.

1969 Mercury Cyclone Spoiler II (slab-sided but slippery, left), 1970 Mercury Cyclone Spoiler (sleek but less aerodynamic than its predecessor, centre) and the aborted 1970 Mercury Cyclone Spoiler II (handicapped out of contention by NASCAR, right).   

In 1970, just how aerodynamic was the 1969 Cyclone Spoiler was proved when the racing teams tried the new model which, although it looked sleek, was not as aerodynamically efficient and noticeably slower.  That might seem something of an own goal but Ford were blindsided by NASCAR’s decision to render the low-volume “aero cars” uncompetitive by restricting them to the use of 305 cubic inch (5.0 litre) engines while the conventional bodies were permitted to use the full 430 (7.0).  Thus the aerodynamic modifications planned for the 1970 Torino and Cyclone never entered production.  Of the two prototype Cyclone Spoiler IIs built, one survives revealing a nose which was in its own way as radical as those earlier seen on the Plymouth and Dodge.  In the collector market, the aero cars are much sought but the Cyclones are the least valued which may seem strange because they were on the circuits among the most successful of the era.  Market analysts attribute this to (1) the Cyclone Spoiler II (and Torino Talladega) being visually much less eye-catching than the wild-looking pair from Chrysler and (2) the Cyclone Spoiler II being sold only with a modest 351 cubic inch (5.8 litre) engine whereas the Fords ran 428s (7.0) and the Chryslers 440 (7.2) & 426 (6.9) units, the latter a version of the engine actually used in the race cars.

The highly qualified Kate Upton (b 1992) was in 2014 featured in a Sports Illustrated session filmed in a "vomit comet" (a modified Boeing 727 with a padded interior). 

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.