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 et al)).  The antonym is proprialization (White House, Grand Canyon et al).  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 et al 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.  Ms 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 to the Paris Peace Conference (1919-1920) made, 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.

Guidance

Guidance (pronounced gahyd-ns)

(1) The act or function of guiding; leadership; direction.

(2) When used as a modifier (marriage guidance et al), advice or counseling (that provided for students choosing a course of study or preparing for a vocation; that given to couples with “marriage problems” etc).

(3) Supervised care or assistance, especially therapeutic help in the treatment of minor emotional disturbances, use prevalent in the management of “troubled youth”.

(4) Something that guides (used of both hardware & software).

(5) The process by which the flight of a missile or rocket may be altered in speed and direction in response to controls situated either wholly in the projectile or partly at the point of launch (ground, air, sea or space-based).

(6) The general term for the part of the publishing industry devoted to “self-help” titles.

1765–1775: The construct was guide + -ance.  Guide dates from the mid-fourteenth century and was from the Middle English guide (to lead, direct, conduct), from the Old French verb guider (to lead; to conduct (guide the noun), from the Old Occitan guida, from the earlier guier & guidar, from the Frankish wītan (to show the way, lead), from the Proto-Germanic wītaną & witanan (to see, know; go, depart (also “to look after, guard, ascribe to, reproach”)), from the primitive Indo-European weyd or weid (to see, know).  It was cognate with the Old English wītan (to see, take heed to, watch after, guard, to keep) and related to the Modern English wit.  The Proto-Germanic was the source also of the German weisen (to show, point out) and the Old English witan (to reproach) & wite (fine, penalty).  The development in French was influenced both by the Old Provençal noun guidar (guide, leader) and the Italian guidare, both from the same source.  The suffix -ance was an alternative form of -ence, both added to an adjective or verb to form a noun indicating a state or condition, such as result or capacity, associated with the verb (many words ending in -ance were formed in French or by alteration of a noun or adjective ending in –ant).  The suffix -ance was from the Middle English -aunce & -ance, from the Anglo-Norman -aunce and the continental Old French -ance, from the Latin -antia & -entia.  The –ence suffix was a word-forming element attached to verbs to form abstract nouns of process or fact (convergence from converge), or of state or quality and was from the Middle English -ence, from the Old French -ence, from the Latin –entia & -antia (depending on the vowel in the stem word).  The Latin present-participle endings for verbs stems in -a- were distinguished from those in -i- and -e- and as the Old French evolved from Latin, these were leveled to -ance, but later French borrowings from Latin (some of them subsequently passed to English) used the appropriate Latin form of the ending, as did words borrowed by English directly from Latin, thus diligence, absence et al.  There was however little consistency, English gaining many words from French but from the sixteenth century the suffix –ence was selectively restored, such was the reverence for Latin.  Guidance is a noun; the noun plural is guidances.

Lindsay Lohan's latter-day Cady Heron as a High School guidance counsellor.  In November 2023, Karen Smith (Amanda Seyfried (b 1985)), Gretchen Wieners (Lacey Chabert (b 1982)) & Cady Heron (Lindsay Lohan (b 1986)) were re-united for a presumably lucrative commercial for Walmart's upcoming Black Friday sale.  Constructed as a Mean Girls (2004) spoof and replete with references & allusions, Lindsay Lohan's now grown up Cady Heron appeared as North Shore High School's guidance counsellor, a self-explanatory joke.

The use of the word in jargon divides essentially into two classes, technical & descriptive.  Technical use includes the form “autoguidance” (the construct being auto(matic) + guidance) which is a general term describing the mechanical or electronic devices used to provide a machine with the ability autonomously to move without relying on external directional inputs.  Autoguidance systems date back decades and originally relied on the interaction of stuff like gyroscopes, accelerometers & altimeters (then known as “inertial guidance”) but became more integrated as electronics became smaller and improved in capacity & durability.  The most publicized use was in “guided missiles”, a term which entered general use in the 1950s (although it first appeared in British documents in 1944 in the sense of “a projectile capable of altering course in flight”, distinguishing the German V2 ballistic missile from the V1 (an early (unguided) cruise missile)) and the development of artificial intelligence (AI) has not only refined the technology but actually shifted the paradigm to one in which the machine (in some sense) makes "decisions", a process different from earlier autoguidance systems which were pre-programmed with a defined set of parameters which limited the scope of “decision making” to certain options.  The worrying implication of AI is that it might start making “its own decisions”, not because it has achieved some form of consciousness (in a sense comparable to that possessed by humans) but because the code produces unintended consequences.  When lines of code can be in the millions, not every permutation of events can be tested (although the use of AI should raise the count).  “Teleguidance” came into use to refer to the remote guidance of missiles and torpedoes but later also became a part of “space guidance” (an omnibus term encompassing the guidance operations required to launch a spacecraft into orbit or space, navigate in space and return to Earth or some other place).  Space guidance is especially complex because there can be a lag of minutes or hours between instructions being sent from Earth and received by the craft, thus the need for ground-based transmissions to interact with autoguidance systems.  Specialized forms in engineering include “non-guidance”, “pre-guidance” & “self-guidance”, all of which can be used of hardware components or segments of software within the one guidance system.

Quantum Physics for Dummies by Steven Holzner PhD (1957-2013) sounds like a Pythonesque joke title but it’s real and provides genuinely useful guidance on one of science’s more impenetrable topics.  For most of us, reading it will not mean we will understand quantum physics but it will help us more fully to understand what we don’t know; it is a good self-help book.

The term “e-guidance” is different in that it was just a buzz-phrase (which never really caught on) which referred to guidance given electronically (ie using the internet) and the forms which evolved (teleconferencing, telemedicine) were different again; they referred usually to human-to-human contact via screens rather than in person.  The descriptive uses included the familiar forms such as “guidance counselor”, “marriage guidance” & “guidance industry”, the latter responsible for the dreaded self-help books which although genuinely useful if focused on something specific (eg SpeedPro's highly recommended How to Build & Power Tune Weber & Dellorto DCOE, DCO/SP & DHLA Carburettors), also includes titles like “Getting Closure in Seven Days” or “201 Ways to Feel Better” (even God handed down only 10) et al, the utility of which varied to the extent it’s tempting sometimes to apply the noun “misguidance”.  Misguidance seems not to be used by those whose guidance systems have gone wrong, engineers preferring the punchy “fail” while the management-speak crew came up with “unplanned event”.

Guidance “books”, in one form or another can be traced back thousands of years and while there is evidence multiplication algorithms existed in Egypt (circa 1700-2000 BC) a handful of Babylonian clay tablets dating from circa 1800-1600 BC are the oldest guidance documents yet found, containing not solutions to specific issues but a collection of general procedures for solving whole classes of problems.  Translators consider them best understood as an early form of instruction manual and one tablet was found to include “This is the procedure”, a phrase familiar in many modern publications.  “Guidance” seems to have appeared in book titles in the 1610s.  In 2016, Lindsay Lohan threatened the world with a self-help book offering guidance on living one’s life.  It’s not clear if the project remains in preparation but hopefully a book will one day emerge.

Kim Jong-un & Kim Ju-ae with entourage (pencils poised) on an official visit to a Pyongyang greenhouse farm.

On Saturday 16 March, the DPRK’s (Democratic People’s Republic of Korea (North Korea)) state media department issued a statement, referring to Kim Jong-un’s (Kim III, b 1982; Supreme Leader of DPRK since 2011) daughter as “great person of guidance”, a term Pyongyangologists swiftly noted was reserved usually for senior leaders, the implication being a programme was in place preparing her status as a potential successor, thus one day becoming Kim IV.  The analysts said it was significant the statement was issued in both English and Korean-language versions of the official Korean Central News Agency report on the visit by the Supreme Leader and his daughter (within the family presumably now thought the "Supreme Daughter") visit to a greenhouse farm.  Attaching great importance to the use of the plural form of the honorific (the unavoidable suggestion being it applied to both), the analysts noted the crucial sentence:

“The great persons of guidance, together with cadres of the Party, the government and the military went round the farm.”

The existence of the Supreme Daughter has for some time been known although the official details are scant, her age or name never mentioned by state media but according to South Korean’s military intelligence service, her name is Kim Ju Ae and she is now aged thirteen.

Official DPRK Central News Agency photograph: Ri Sol-ju (b circa 1987; wife of Supreme Leader Kim Jong-un) (left), Kim Ju-ae (b circa 2011; daughter of Kim Jong-un) (centre) and Kim Jong-un (Kim III, b 1982; Supreme Leader of DPRK (North Korea) since 2011) (right), undisclosed location, February 2023.

The Kim regime, which will have the same sensitivity to domestic public opinion as any authoritarian or despotic operation (an often under-estimated political dynamic in such systems) and it would seem the groundwork for a possible succession has been in preparation for some time.  The appearance in 2023 of Kim Ju-ae at a banquet and subsequent parade commemorating the 75th anniversary of the Korean People's Army (KPA) attracted interest and even then the DPRK-watchers thought it might be a signal she had been anointed as Kim IV to succeed the Supreme Leader when he dies (God forbid).  That was actually her second public appearance, the first in 2022 when she accompanied her father inspecting some of his nuclear missiles, the big rockets long a family interest.  Fashionistas were on that occasion most impressed by the presumptive Kim IV in 2022 because she was dressed in black white & red, matching the color scheme the DPRK uses on its intercontinental ballistic missiles (ICBM); everyone thought that a nice touch.  In honor of the occasion, the DPRK issued a range of ICBM-themed postage stamps featuring the daughter.

Daddy-Daughter day with ICBMs: DPRK postage stamp issue featuring ICBMs, the Supreme Leader & his daughter, Kim Ju-ae.  Like most eleven year old girls, Kim Ju-ae seemed much taken by the beauty of nuclear weapons.

However, the publicity attached to the Kim’s visit to the farm was believed to be the “first expression of elevating Kim Ju Ae to the ranks” of the leadership according to a statement from Seoul’s University of North Korean Studies (UNKS) in Seoul, something confirmed by the Sejong Institute’s Center for Korean Peninsula Strategy (CKPS) which noted the North Korean term hyangdo (guidance) was typically only reserved for “top leaders or successors.”  Attributing meaning to actions in the DPRK seems sometimes more art than science and the record is patchy but the CKPS observed “this level of personal worship for Kim Ju Ae strongly suggests that she will succeed Kim Jong Un as the next leader of North Korea" and it certainly follows the pattern of behavior adopted in the run-up to Kim Jong-il (Kim II, 1941-2011; Dear Leader of DPRK 1994-2011) inheriting the country in 2011 after the death of Kim Il-sung (Kim I, 1912–1994; Great Leader of DPRK 1948-1994).  Notably, the lesson of the political uncertainty after the unexpected early death of the Dear Leader may have been learned and the mistake of not having prepared international & domestic opinion for the reign of the Supreme Leader will not be repeated.  In this, the public appearances and use of “great person of guidance” can be thought of as the early building blocks of the Stalinist personality cult used to reinforce and perpetuate the rule of the Kims since the 1950s.  Since her debut, Kim Ju Ae has appeared at a number of her father's official engagements which have included a visit to a poultry farm, military drills & parades and a tour of a weapons factory.  All this is taken as solid evidence Kim Ju Ae is the preferred successor and she can be thought of as something like a “crown prince” or “crown princess”; the heir to the throne.  It has never been confirmed is the new Supreme Daughter is the oldest or even an only child because the rumors of one or more sons have never been confirmed although the reports persist, including that the health of the possible son is not good.  By contrast, the official photographs seem to suggest Kim Ju Ae is in rude good health and although reports of food shortages in the DPRK appear frequently, she certainly looks well.

The Dear Leader (left), the Supreme Leader (centre) and the Supreme Daughter (right), looking at things through binoculars.  Dating from the time of the Great Leader, looking at things through binoculars is a family tradition and there have been websites devoted to the subject. 

Of course, while deconstructing phrases from Pyongyang is an exercise both abstract and remote for the DPRK-watchers, for the people of North Korea who have enjoyed some 75 years of guidance from the Great Leader, the Dear Leader and the Supreme Leader, the prospect of decades more of the same from the Supreme Daughter will be of more immediate interest.  Public opinion in the DPRK is difficult to assess (although The Economist did publish an interview with the Dear Leader in which he admitted genuine support for the regime was likely little more than 25%) but it shouldn’t be assumed the folk there are not sophisticated consumers of political information and as the despairing staff of old Barry Goldwater (1909–1998) used to beg the press, they may be more focused on “what he means, not what he says.”

The second of the DPRK Central News Agency's photographs recording the visit to the greenhouse farm.  Fashionistas will be interested to learn the wearing of leather is a more recent family thing, started by the Supreme Leader who reportedly has banned his subjects from donning black leather, the echo of a number of royal households who centuries ago imposed a proscription on commoners using the color purple which was reserved for royalty.  Of course, the sartorial choice may be something purely pragmatic, black garments known to be "most slimming" and whether the ban has been extended to the Supreme Daughter's fetching chocolate brown has been neither confirmed nor denied.  The notebooks carried by civilian & military members of the entourage are both compulsory & essential: if the Supreme Leader says something interesting, they write it down and presumably, should the Supreme Daughter say something interesting, that too will be noted although experienced stenographers develop techniques to limit the workload.  Those employed at World War II (1939-1945) Führerhauptquartiere (Führer Headquarters) admitted they never bothered writing down the first thing said by the famously sycophantic Wilhelm Keitel (1882–1946; Nazi field marshal & head of Oberkommando der Wehrmacht (OKW), the armed forces high command) because it was always the last thing said by Adolf Hitler (1889-1945; Führer (leader) and German head of government 1933-1945 & head of state 1934-1945).

Simony

Simony (pronounced sahy-muh-nee or sim-uh-nee)

(1) The making of profit out of sacred things.

(2) In Christianity, the practice, now usually regarded as a sin, of buying or selling spiritual or ecclesiastical benefits such as pardons, relics, benefices or preferments.

The buying or selling of spiritual or sacred things, such as ecclesiastical offices, pardons, or consecrated objects.

1175–1225: From the Middle English & the twelfth century Old French simonie (selling of church offices; the sin of buying or selling sacred things), from the Late Latin simōnia (from Simon Magus (Σίμων ὁ μάγος in Greek, Simon Magvs in Latin), the Samaritan sorcerer (magician) who was rebuked by Peter when he tried to buy the power of conferring the Holy Spirit (Acts 8:9-24)).  The nouns simoniak & simoner (the alternative spelling was simonier) (one who practices simony) appear in documents around the turn of the fifteenth century but there’s no evidence the adverb simoniacally was in use before the mid-1700s.  Simony, simonist, simoner & simonism are nouns, simoniac is a noun & adjective, simonient is an adjective and simoniacally is an adverb; the noun plural is simonies.

Acts 8:9-24: Origin of the Church’s ban on outsourcing.

18: And when Simon saw that through laying on of the apostles' hands the Holy Ghost was given, he offered them money.

19: Saying, give me also this power, that on whomsoever I lay hands, he may receive the Holy Ghost.

20: But Peter said unto him, thy money perish with thee, because thou hast thought that the gift of God may be purchased with money.

Simon Magus, known also as Simon the Sorcerer, was one of many magicians and, with competition fierce in a crowded market, he sought to increase his stock of magic tricks, gaining thereby a comparative advantage.  What he really wanted was to be thought of as one who, by laying on of hands, could make people feel filled with the Holy Spirit (the presence of the Lord), then a desired thing.

Saint Peter to Simon the Sorcerer: "Just don't do it; just say no."

When Simon Magus saw Peter and John deliver the presence by the laying of their on baptized believers, he offered money if they would confer on him the same power.  The pious pair were aghast at the idea one could buy the gift of God and urged Simon to repent so God might forgive him.  Hearing these words made Simon fearful and he pleaded with them to pray that nothing bad would befall him.  Whether Simon was truly repentant is never made clear although he did not immediately die so God did not at once smite him in his wrath.  Others were not so fortunate but Simon was the first heretic named in the New Testament and ever since, the Church has insisted on its monopoly in matters spiritual.  However, later popes, bishops and other clergy, while noting the the ruling of Peter & John as conferring on them exclusivity of supply in such matters, their interpretation didn't extend to banning profit from the business, something which would come to have profound consequences for Church and state. 

Compared with the unfortunate Ananias and Sapphira, Simon got off lightly.  In the Book of Acts (4:32), it’s recorded the early Christian disciples did not think of their possessions as their own but as the property of the collective to be used in the name of the Lord (not now a popular piece of scripture among the more materialist Christians).  Were money received by one, it belonged to all the apostles and were one to be found cheating, there were consequences and of course there had to be because, theologically, not only was the miscreant cheating others in the clergy, they were stealing from God Himself.  In Acts (5:1-11), it’s recounted that Ananias and his wife Sapphira sold their land but, when handing the proceeds to Peter, Anania kept some of the money for himself (the modern term in the study of governance & corruption in the distribution of foreign aid would be "siphoning").

5 But a certain man named Ananias, with Sapphira his wife, sold a possession,

2 And kept back part of the price, his wife also being privy to it, and brought a certain part, and laid it at the apostles' feet.

3 But Peter said, Ananias, why hath Satan filled thine heart to lie to the Holy Ghost, and to keep back part of the price of the land?

4 Whiles it remained, was it not thine own? and after it was sold, was it not in thine own power? why hast thou conceived this thing in thine heart? thou hast not lied unto men, but unto God.

5 And Ananias hearing these words fell down, and gave up the ghost: and great fear came on all them that heard these things.

6 And the young men arose, wound him up, and carried him out, and buried him.

7 And it was about the space of three hours after, when his wife, not knowing what was done, came in.

8 And Peter answered unto her, Tell me whether ye sold the land for so much? And she said, Yea, for so much.

9 Then Peter said unto her, How is it that ye have agreed together to tempt the Spirit of the Lord? behold, the feet of them which have buried thy husband are at the door, and shall carry thee out.

10 Then fell she down straightway at his feet, and yielded up the ghost: and the young men came in, and found her dead, and, carrying her forth, buried her by her husband.

11 And great fear came upon all the church, and upon as many as heard these things.

A salutary warning then, rather untypical of the New Testament, something more in the spirit of the vengeful God of the Old and it remains one of the passages in scripture most of modern Christianity prefers to ignore.  The endorsement of the death penalty often attracts little criticism but the notion of sharing with others one’s capital gains from the real-estate market would likely have little appeal to the many in evangelical congregations, although, given the corporate structure, the richer of the clergy might see some attraction.

The story has long been a struggle for theologians.  Although a injunction against lying is not one of the ten commandments (although it seems implied in (8) You shall not steal & (9) You shall not bear false witness), it wasn't explicitly prohibited although Ananias and Sapphira were struck dead simply for conspiring to lie; that would seem unfair for on the night Christ was tried, Peter himself lied three times yet was not thrice struck dead and anyway, as Peter acknowledged, they were under no obligation to donate the money.  It might then seem difficult to see just what was the sin so heinous that both deserved to die but theologians most often hint at something Aristotle might have called honor, what the social media marketing experts might call the quality of authenticity.  The transgression of Ananias and Sapphira was seeking the honor of their community in a manner dishonorable, shaming themselves as mere counterfeits; phoneys.  It was not the money which mattered, it was the fake news and, as Peter said, that news came from Satan for Satan had filled (to “the brim” in some translations) the heart of Ananias.  So, it's no great theological leap to see in their conduct as transgressions of (8) You shall not steal and (2) You shall not make any idols to worship (in that money had become an object of veneration).

La Mort de Saphire (The Death of Sapphira (1652)), oil on canvas by Nicolas Poussin (1594–1665).

People lie all the time and God does not smite them in his wrath but while all men might be equal before God, not all communities are equal.  When people lie to others in their community they are lying to others, to themselves and before God; it is a sin and one day they shall be judged.  But among the disciples of Christ himself, there can be no lies for to lie there is to lie about the work of the Holy Spirit and to speak that lie to God.  There can be only one consequence and that must be death.  It's a warning to those with the conceit to seek pre-eminence among the people of God, careerists seeking recognition, influence and power in God’s Church which is wrong for it is God alone who takes us into His Church (John 6:44, 65) and Him alone who elevates and ordains individuals to offices within (1 Corinthians 12:18, 28; Ephesians 4:11); as in all things, "the Lord giveth and the Lord taketh away; Blessed be the name of the Lord" (Job 1:21).  The vainglory of the self-aggrandizement of Ananias and Sapphira was the work of the mind and nature of Satan (Isaiah 14:13-14; Ezekiel 28:17) and was what made the couple willing instruments in the execution of his purposes.  Structuralists draw from the story a lesson about the authority of the hierarchical clergy and the nature of the institution of the Church.  Theologians writing their apologia (which seem always emphasise that Peter must be absolved of any responsibility) conclude the message is in everything we do we must love our neighbors as ourselves and seek not to accrue wealth, status and power.

In the early medieval church the legal position was unambiguous so the spirit was strong, even if the flesh of priests was sometimes weak, accusations of simony not uncommon, something encouraged presumably by the increasingly obvious wealth of not a few clergy.  In reaction, canon law banned what had become revenue streams derived from the supply of what had once been simple orders of service performed for events such as blessings or baptism.  Over the years many canons and edicts reinforced the sanctions, something necessitated by priests being good “black letter law” practitioners, eager to spot loopholes and eyes of needles through which money could pass.  Even papal bulls addressed the matter though it was a time of low literacy and distant channels of communications, things which helped imaginative priests hone their business model.  Famously, Gregory I (circa 540–604; usually styled Saint Gregory the Great, pope 590-604) condemned such transactions as “a simoniac heresy” but the problem was not the state of law but the efficiency of its enforcement, a familiar complaint in the modern secular world.

Despite it all, by the ninth and tenth centuries, simony had become so entrenched in the ecclesiastical structure that the very economy of the Church may have been dependent on the practices and in the eyes of the population, presumably was an accepted part of theology.  The more austere canon lawyers however found it disturbing and by the eleventh century, one of the debates between them concerned the issue of whether a priest who had gained his office by a simonical transaction (ie purchased it from a bishop) could be said to be validly ordained and this was not merely a tiresome technical point argued between lawyers: if an ordination was invalid, did this invalidate the legal effect of the rituals he’d since performed?  If so, were some marriages null & void, couples living in sin and unknowingly producing illegitimate children?  Were their baptisms valid or were there many unbaptised heathens?  That was bad enough but if so, would those who had died (and there would have been many), on that basis be sent not to Heaven but instead burn in Hell (discussions of some less unpleasant alternatives such as Limbo were not then well advanced)?

It was during the pontificate of Gregory IX (circa 1150-1241; pope 1227-1241) the sanctions were codified and it was done with a legal sledgehammer.  In issuing the Corpus Juris Canonici (literally “Body of Canon Law”) in 1234, Gregory provided the document which would provide the framework for the Church’s canon law for over 700 years and although subject to frequent refinement, it would not be replaced until 1917.  As a part of this, the matter of simony was dealt with in what might now be called “an omnibus provision”, the definitional basis for the offence so wide that just about any transaction “involving consideration” (ie money or some other benefit) might be caught in its net.

Canto XVIII, part of the eighth circle of Hell, in Divine Comedy (circa 1494), illustrated by Sandro Botticelli (Alessandro di Mariano di Vanni Filipepi; circa 1445–1510).

It’s said to have had a great reforming influence but of course the problem shifted shape rather than going away and in the fourteenth century, Dante Alighieri (circa 1265–1321) in Divina Commedia (Divine Comedy (circa 1310-1321)) detailed (not without glee) the fate of avaricious simoniacs including “clergymen, and popes and cardinals” who, dammed for “fraud” would be cast into the eighth circle of Hell, a hot, fiery place where they’d have ended up trapped for eternity in a flaming tomb, the frequent punishments including being whipped by demons, immersed in excrement and transformed into reptiles:

Rapacious ones, who take the things of God,
that ought to be the brides of Righteousness,
and make them fornicate for gold and silver!
The time has come to let the trumpet sound
for you;

Ever if not scared of lawyers, from the most humble monk to the pope himself, priests were scared of going to Hell so Dante’s words may have had some effect, even though he wrote in common Italian rather than Latin.  The lure of money though proved strong and although the sale of “indulgences” (essentially God’s forgiveness, often in bulk) was not the sole inspiration for the movement which led to the sixteenth century Protestant Reformation, it was probably the most celebrated and an indication of the way corruption tends to be hydra-headed, difficult to suppress and probably impossible to eradicate.  Still, it was the framework of canon law which provided the basis for the structures the Church of England would adopt to stamp out simony and it’s not hard to see traces of it in many of the anti-corruption statutes and institutions which exist today in many Western states.

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