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 Path (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.

Consecrate

Consecrate (pronounced kon-si-kreyt)

(1) To make or declare sacred; set apart or dedicate to the service of a deity (most often in the context of a new church building or land).

(2) To make something an object of honor or veneration; to hallow.

(3) To devote or dedicate to some purpose (usually in the form “a life consecrated to something”) usually with some hint of solemnly.

(4) In religious ritualism, to admit or ordain to a sacred office, especially (in the Roman Catholic Church) to the episcopate.

(5) In Christianity to sanctify bread and wine for the Eucharist to be received as the body and blood of Christ.

1325–1375: From the Middle English consecraten (make or declare sacred by certain ceremonies or rites), from the Latin & cōnsecrātus & cōnsecrāre (to make holy, devote), perfect passive participle of cōnsecrō, the construct being con- (from the Latin prefix con-, from cum (with); used with certain words (1) to add a notion similar to those conveyed by with, together, or joint or (2) to intensify their meaning) +‎ sacrāre (to devote) (from sacrō (to make sacred, consecrate”), from sacer (sacred; holy).  The most frequently used synonyms are sanctify & venerate (behallow is now rare); the antonyms are desecrate & defile.  The original fourteenth century meaning was exclusively ecclesiastical, the secular adoption in the sense of "to devote or dedicate from profound feeling" is from the 1550s.  The verb was the original for, the noun consecration developing within the first decade of use; it was from the Latin consecracioun (the act of separating from a common to a sacred use, ritual dedication to God) and was used especially of the ritual consecration of the bread and wine of the Eucharist (from the Latin consecrationem (nominative consecratio)), a noun of action from past-participle stem of consecrare.  In the Old English, eallhalgung was a loan-translation of the Latin consecratio.  Consecrate is a verb & adjective, consecration, consecratee, consecratedness & consecrater (also as consecrator) are nouns, consecrates, consecrated & consecrating are verbs and consecratory & consecrative are adjectives; the most common noun plural is consecrations.

The common antonym was desecrate (divest of sacred character, treat with sacrilege), dating from the 1670s, the construct being de- + the stem of consecrate.  The de- prefix was from the Latin dē-, from the preposition dē (of, from (the Old English æf- was a similar prefix).  It imparted the sense of (1) reversal, undoing, removing, (2) intensification and (3) from, off.  In the Old French dessacrer meant “to profane” and a similar formation exists in Italian.  However, the Latin desecrare meant “to make holy” (the de- in this case having a completive sense).  In Christianity, to deconsecrate is not a desecration but an act of ecclesiastical administration in which something like a church or chapel ceases to be used for religious purposes and is able to be sold or otherwise used.  It means that in Christianity the notion of “sacred sites” is not of necessity permanent, unlike some faiths.  The alternative unconsecrated seems now obsolete but was once used as a synonym of deconsecrated (and also in clerical slang to refer to laicization (defrocking)).  The un- prefix was from the Middle English un-, from the Old English un-, from the Proto-West Germanic un-, from the Proto-Germanic un-, from the primitive Indo-European n̥-.  It was cognate with the Scots un- & on-, the North Frisian ün-, the Saterland Frisian uun-, the West Frisian ûn- &  on-, the Dutch on-, the Low German un- & on-, the German un-, the Danish u-, the Swedish o-, the Norwegian u- and the Icelandic ó-.  It was (distantly) related to the Latin in- and the Ancient Greek ἀ- (a-), source of the English a-, the Modern Greek α- (a-) and the Sanskrit अ- (a-).

The word "consecrate" is of interest to etymologists because of the history.  By the early fifth century, Rome was forced to recall the legions from Britain because the heart of the empire was threatened by barbarian invasion.  This presented an opportunity and not long after the soldiers withdrew, the Angles, Saxons and Jutes landed on the shores of the British Isles, beginning the Germanic invasion which would come to characterize Britain in the early Middle Ages.  As the invaders forced the native Celts to escape to Wales, Ireland and the northern districts of Scotland, the Celtic language and indeed the last residues of Latin almost vanished; in a remarkably short time, the culture and language in most of what is now England was almost exclusively Germanic.  It was the arrival of Christianity in the sixth century which caused Latin to return; with the faith came nuns & priests and the schools & monasteries they established became centres of literacy and stores of texts, almost all in Latin.  For a number of reasons, the Germanic tribes which by then had been resident for five generations, found Christianity and the nature of the Roman Church attractive and readily adopted this new culture.  At this time words like temple, altar, creed, alms, monk, martyr, disciple, novice, candle, prophet and consecrate all came into use and it was the mix of Latin & the Germanic which formed the basis of The Old English, a structure which would last until the Norman (as in "the Northmen") invasion under William the Conqueror (circa 1028-1087; King William I of England 1066-1087) in 1066 at which point Norman-French began to infuse the language.

Bartholomew I (Dimitrios Arhondonis (b 1940); Ecumenical Patriarch of Constantinople since 1991) consecrating his Patriarchal Exarch in Ukraine to the episcopate, Istanbul, November 2020.

Additionally, just as buildings, land and other objects can be consecrated and deconsecrated, they can subsequently be reconsecrated (to consecrate anew or again), a verb dating from the 1610s.  In the wars of religion in Europe and places east, when buildings often swapped in use between faiths as the tides of war shifted, this lead even to theological debate, some arguing that when a church was re-claimed, there was no need to perform a reconsecration because there had been no valid act of deconsecration while other though “a cleansing reconsecration” was advisable.  The re- prefix was from the Middle English re-, from the circa 1200 Old French re-, from the Latin re- & red- (back; anew; again; against), from the primitive Indo-European wre & wret- (again), a metathetic alteration of wert- (to turn).  It displaced the native English ed- & eft-.  A hyphen is not normally included in words formed using this prefix, except when the absence of a hyphen would (1) make the meaning unclear, (2) when the word with which the prefix is combined begins with a capital letter, (3) when the word with which the is combined with begins with another “re”, (4) when the word with which the prefix is combined with begins with “e”, (5) when the word formed is identical in form to another word in which re- does not have any of the senses listed above.  As late as the early twentieth century, the dieresis was sometimes used instead of a hyphen (eg reemerge) but this is now rare except when demanded for historic authenticity or if there’s an attempt deliberately to affect the archaic.  Re- may (and has) been applied to almost any verb and previously irregular constructions appear regularly in informal use; the exception is all forms of “be” and the modal verbs (can, should etc).  Although it seems certain the origin of the Latin re- is the primitive Indo-European wre & wret- (which has a parallel in Umbrian re-), beyond that it’s uncertain and while it seems always to have conveyed the general sense of "back" or "backwards", there were instances where the precise was unclear and the prolific productivity in Classical Latin tended make things obscure.  The Latin prefix rĕ- was from the Proto-Italic wre (again) and had a parallel in the Umbrian re- but the etymology was always murky.   In use, there was usually at least the hint of the sense "back" or "backwards" but so widely was in used in Classical Latin and beyond that the exact meaning is sometimes not clear.  Etymologists suggest the origin lies either in (1) a metathesis (the transposition of sounds or letters in a word) of the primitive Indo-European wert- (to turn) or (2) the primitive Indo-European ure- (back), which was related to the Proto-Slavic rakъ (in the sense of “looking backwards”).

Rose Aymer (1806) by Walter Savage Landor (1775–1864)

Ah what avails the sceptred race,
Ah what the form divine!
What every virtue, every grace!
Rose Aylmer, all were thine.
Rose Aylmer, whom these wakeful eyes
May weep, but never see,
A night of memories and of sighs
I consecrate to thee.

Rose Aylmer is Landor’s best remembered poem, one he dedicated to Rose Whitworth Aylmer (1779-1800), daughter Lord Aylmer and his wife Catherine Whitworth.  Rose sailed to India with an aunt in 1798, dying from cholera within two years. The poem is epigrammatic, written in tetrameters and trimeter iambics with rhyming alternate lines.  It’s a lament for the loss of a divine creature for Rose was imbued with every virtue and grace, the last two lines verse alluding to memories of their night of passion he so vividly recalls, consecrating its memory to her.

Consecration and the Church

Consecrated ground: A church graveyard.

Movie makers sometimes dig into religious themes for plot-pieces or props and one which has been used by those working usually in the horror or supernatural genres is the idea “the dead can’t arise from unconsecrated soil”, one implication being the soul of the deceased cannot ascend to heaven and are compelled for eternity to lie cold and lonely (in horror films there are also other consequences).  However, there’s no basis for this in Christian theology and noting in Scripture which could be interpreted thus but the consecration of burial grounds and the burial of the deceased in consecrated earth seems to have a long tradition in Christianity.  The idea though clearly bothered some and there’s a record of a fifteenth century German bishop assuring seafarers that Seebestattung (burial at sea) is proper, the ceremony alone a sufficient act of consecration.  So, in the Christian tradition, consecrated ground for a burial seems “desirable but not essential”, one’s salvation depending on faith in Jesus Christ and God's grace, not where one’s early remains are deposited.

There were though some other restrictions and in many places the Church did not permit those who had died by their own hand to be laid to rest within the consecrated boundaries of a cemetery; those sinners were buried just outside in unconsecrated ground.  The tradition seems mostly to have been maintained by the Jews and Roman Catholics although it was not unknown among the more austere of other denominations, evidence still extant in the United States.  After the Second Vatican Council (Vatican II; 1962-1965), rules in the Catholic Church were relaxed and the burial in consecrated ground of those who had committed suicide became a matter for the parish priest, a referral to the bishop no longer demanded.  The attitude within Judaism doubtlessly varies according to the extent to which each sect conforms to orthodoxy but generally there has probably been some liberalization, even those with tattoos now able to have a plot among the un-inked, the old prohibition based on the prohibition of one of the many abominations listed by Leviticus (Vayikra) in Chapter 19 of the Old Testament (the Torah or Pentateuch): You shall not make cuts in your flesh for a person [who died].  You shall not etch a tattoo on yourselves. I am the Lord. (Leviticus 19:28).

The Vatican, the USAVC and Legal Fictions

The United States Association of Consecrated Virgins (USACV) is a voluntary association of consecrated virgins living in the world, the purpose of which is said to be “to provide support members in the faithful living out of their vocation to consecrated virginity” and “…to assist one another in service to the Church as befits their state” (Canon 604, Code of Canon Law).

In 2018, a document from the Vatican discussing the role of consecrated virginity drew criticism from some in the USACV which alleged there was a passage in the text which seemed ambiguous.  The issue was whether entering the Church's "order of virgins" requires women genuinely are virgins (in the accepted sense of the word).  Issued on 4 July, by the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, Ecclesiae Sponsae Imago (ESI; The image of the Church as Bride) contained a passage the critics claimed was "intentionally convoluted and confusing" and appeared to suggest “…physical virginity may no longer be considered an essential prerequisite for consecration to a life of virginity.”  The dissenting statement called this implication "shocking", pointing out there “are some egregious violations of chastity that, even if not strictly violating virginity, would disqualify a woman from receiving the consecration of virgins”, adding “The entire tradition of the Church has firmly upheld that a woman must have received the gift of virginity – that is, both material and formal (physical and spiritual) – in order to receive the consecration of virgins.”

The USAVC did seem to have a point, the ESI instructing that “it should be kept in mind that the call to give witness to the Church's virginal, spousal and fruitful love for Christ is not reducible to the symbol of physical integrity. Thus to have kept her body in perfect continence or to have practiced the virtue of chastity in an exemplary way, while of great importance with regard to the discernment, are not essential prerequisites in the absence of which admittance to consecration is not possible.  The discernment therefore requires good judgment and insight, and it must be carried out individually. Each aspirant and candidate is called to examine her own vocation with regard to her own personal history, in honesty and authenticity before God, and with the help of spiritual accompaniment.”

In the spirit of Vatican II, US-based canon lawyers responded, one (herself a consecrated virgin of the Archdiocese of New York) issuing a statement saying, inter alia: “I don't see this as saying non-virgins can be virgins. I see this as saying in cases where there is a real question, it errs on the side of walking with women in individual cases for further discernment, as opposed to having a hard-dividing line to exclude women from this vocation.  The presumption of the document is that these are virgins who are doing this [consecration].  An important thing to do though is to read the questionable paragraph in context with the rest of the document.  The instruction talks a lot about the value of virginity, Christian virginity, the spirituality of virginity.  The nature of this kind of document as an instruction doesn't change the law that it's intended to explain.  The rite of consecration itself is the law, while the instruction is meant as "an elaboration for certain disputed points; it's just giving you further guidance in places where existing law is vague.”

For those not sure if this helped, she went on, verging close to descending to specifics, saying the ESI was offering a “more generous description” of the prerequisite of virginity in “allowing for people in difficult situations to continue some serious discernment”, adding that what ESI appeared to do was cover those “difficult cases” in which a woman cannot answer whether she is a virgin according to a strict standard; those instances where women might have lost their virginity without willing it or against their will, or out of ignorance. Women might thus have “committed grave sins against chastity but not actually lost their virginity in their minds”.  Such a concept has long been a part of criminal law in common law jurisdictions and the Latin phrase actus reus non facit reum nisi mens sit rea (the act is not culpable unless the mind is guilty and usually clipped to “mens rea” (guilty mind)) and is the basic test for personal liability.

Had the Vatican been prepared to descend to specifics it might have avoided creating the confusion and the president of the USAVC, while noting the potentially ambiguous words, stated where “…a woman has been violated against her will and has not knowingly and willingly given up her virginity, most would hold that she would remain eligible for consecration as a virgin. Such a case would require depth of good judgment and insight carried out in individual discernment with the bishop.”  That seemed uncontroversial but the president continued: “In our society, questions of eligibility for the consecration of virgins are raised by those who have given up their virginity, perhaps only one time, and who have later begun again to live an exemplary chaste life.”  What the ESI should have made explicit, she said, was that “…these women do not have the gift of virginity to offer to Christ.  They may make a private vow of chastity, or enter another form of consecrated life, but the consecration of virgins is not open to them.”  Clearly, in the view of the USAVC, the ESI does not change the prerequisites for consecration into the USAVC.  One who is a victim of a violation has surrendered nothing whereas one who willingly succumbed cannot retrospectively re-assume virginity, however sincere the regret or pure their life since.

Pope Innocent VIII wearing the papal triple tiara.

So, according to the Vatican, the state of virginity can, in certain circumstances, be a “legal fiction”, another notion from the common law which allows certain things to be treated by the law as if they were fact however obvious it may be they are not.  That sounds dubious but legal fictions are an essential element in making the legal system work and are not controversial because they have always been well publicized (in a way which would now be called “transparent”) and if analysed, it’s obvious the alternatives would be worse.  Rome actually had “a bit of previous” in such matters.  For example, during the Renaissance, although the rules about the conduct and character of those eligible to become pope were well documented (and had once been enforced), there was Innocent VIII (1432–1492; pope 1484-1492) who, before drifting into an ecclesiastical career, had enjoyed a dissolute youth (something no less common then as now), fathering at least six or seven illegitimate children, one son and one daughter actually acknowledged.  Despite it all, he was created a cardinal and for reasons peculiar to the time proved acceptable as pope while all others did not, not because their pasts were more tainted still but because of curia politics; plus ça change…  After the vote, all the cardinals added their signatures to the document warranting Innocent VIII was of fine character.  Scandalous as it sounds, there were Renaissance popes who were plenty worse; the Vatican in those decades needed plenty of legal fictions.

Witches are also consecrated (by the coven).  Although now most associated with ecclesiastical ceremony & procedure, secular use in the sense of “to devote or dedicate (to something) from profound feeling" has existed since the mid-sixteenth century.  Just for the record, Lindsay Lohan has not been, and has no desire to be consecrated a witch.