Surplus

Surplus (pronounced sur-pluhs)

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

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

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

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

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

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

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

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

Surplus Repression

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

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

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

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

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

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

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

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

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

Jelly

Jelly (pronounced jel-ee)

(1) A food preparation of a soft, elastic consistency due to the presence of gelatin, pectin etc, especially fruit juice boiled down with sugar and used as a sweet spread for bread and toast, as a filling for cakes or doughnuts etc.

(2) A preserve made from the juice of fruit boiled with sugar and used as jam (jam the preferred term in much of the English-speaking world outside North America).

(3) Any object or substance having a jelly-like consistency.

(4) A fruit-flavored gelatin dessert (in the English–speaking world but less common in North America where “jello” or “jell-o” are preferred).

(5) A “jelly shoe”, a plastic sandal or shoe, often brightly colored.

(6) To bring or come to the consistency of jelly.

(7) In theatre, film & television production, the informal term for a colored gelatin filter which can be fitted in front of a stage or studio light.

(8) A slang term for the explosive gelignite.

(9) In Caribbean (Jamaica) English, a clipping of jelly coconut.

(10) A savory substance, derived from meat, with a similar texture to the sweet dessert (the gelatinous meat product also known as aspic).

(11) In the slang of zoology, a jellyfish.

(12) In slang (underworld & pathology), blood, especially in its congealed state.

(13) In slang, an attractive young woman; one’s girlfriend (US, probably extinct).

(14) The large backside of a woman (US, now rare).

(15) In internet slang, a clipping of jealous (rare).

(16) In Indian use, a vitrified brick refuse used as metal in road construction.

(17) As “royal jelly”, a substance secreted by honey bees to aid in the development of immature or young bees, supplied in extra measure to those young destined to become queen bees.

1350–1400: From the Middle English jelyf, gelly, gelye, gelle, gelee, gele & gely (semisolid substance from animal or vegetable material, spiced and used in cooking; chopped meat or fish served in such a jelly), from the Old French gelee (frost; frozen jelly), a noun use of feminine past participle of geler (to set hard; to congeal), from the Medieval Latin gelāta (frozen), from gelu (frost), the construct being gel- (freeze) + -āta (a noun-forming suffix).  The Classical Latin verb gelō (present infinitive gelāre, perfect active gelāvī, supine gelātum) (I freeze, cause to congeal; I frighten, petrify, cause to become rigid with fright) was from gelū (frost), from the primitive Indo-European gel- (cold) and was cognate with the Ancient Greek γελανδρόν (gelandrón).  Originally quite specific, by the early fifteenth century jelly was used of any jellied or coagulated substance and by the 1700s it came to mean also "thickened juice of a fruit prepared as food" which was both a form of preserving fruit and a substance used by chefs for flavoring and decorative purposes.  The adjective jellied (past-participle from the verb jelly) emerged in the 1590s with the sense of “of the consistency of jelly” and by the late nineteenth century this had been extended to include “sweetened with jelly”.  Because of the close historical association with foods, the preferred adjectival form for other purposes is jelly-like.  As a modifier jelly has proved productive, the forms including jelly baby, jelly bag, jellybean, jelly coat, jelly doughnut, comb jelly, jelly bracelet, jelly plant & royal jelly.  Jelly is a noun & verb, jellify & jellification are nouns, jellified & jellied are verbs & adjectives and jellying is a verb; the noun plural is jellies.

Aunger "jelly bean" aluminum wheels, magazine advertisement, 1974.  A design popular in the 1970s, different manufacturers used their own brand-names but colloquially the style was known as the “jellybean”, “slotted” or “beanhole”.  The advertisement appeared during the brief era in Australia between rigorous censorship and restrictions imposed by feminist critiques of the objectification of women's bodies.  

The verb jell (assume the consistence of jelly) is documented since 1869 and was a coining of US English, doubtlessly as a back-formation from the noun jelly.  The figurative use (organizations, ideas, design etc) emerged circa 1908 but with the spelling gel, a echo of the Middle English gelen (congeal) which was extinct by the late fifteenth century.  The jellyfish (also jelly-fish) was in the late eighteenth century a popular name of the medusa and similar sea-creatures, the name derived from the soft structure.  Figuratively, jellyfish was used from the 1880s for “a person of weak character” although publications from 1707 use the name for an actual vertebrate fish.  In what ichthyologists say is induced by a combination of (1) over-fishing, (2) rising ocean temperatures, (3) the increasing acidification of the water and (4) coastal areas becoming more nutrient-rich because of sewage run-off or agricultural waste, jellyfish numbers are increasing at a remarkable rate.  Although certain species are a delicacy in some Asian countries, the demand is a faction of the increasing supply and the scope for harvesting jellyfish for other purposes (pet food, fertilizers etc) remains limited.  In restaurants, jellyfish will sometimes be seen on menus but it's thus far a niche item.  The problem is not merely ecological because jellyfish exist in vast swarms and have sometimes been "sucked into" the under-water cooling ducts of nuclear power-plants and nuclear-powered warships, on several occasions temporarily disabling the machinery, rectification a time-consuming and expensive exercise.  The USN (US Navy) discovered the problem during the "jellyfish incident" in which an aircraft carrier, docked in a Japanese port, suffered a reactor shutdown following an ingestion of the troublesome fish.  To date therefore, jellyfish have proved more disruption to the navy's carrier group operations than then best-laid plans of any ayatollah.  Whether the jellyfish will emerge as a cheap and plentiful protein source (as the jellied eel became in eighteenth century England) remains to be seen. 

Jellied eels: According to one reviewer in London, it may be an acquired taste.

The dish jellied eel began in eighteenth century England as a cheap meal which provided a good protein-source for the working class.  Traditionally served cold, it was made with chopped eels boiled in a flavoured (there were many variants) stock which was left to cool, forming a jelly.  Because European eels were once common in the Thames and easily caught in bulk, for two centuries jellied eel was a staple for the poor and often served with mashed potato and ale but tastes change and the expanded industrial production of food, coupled with the ability to ship commodities world-wide at little more than marginal cost saw a rapid decline in the dish’s popularity in the post-war years.  Paradoxically, jellied eel is now an often quite expensive item sold in up-market delicatessens and the European eel has become an endangered species with smuggling to markets in Asia in the hands of organized crime.         

The jelly roll.

The jelly roll (also as jelly-roll) was a “cylindrical cake containing jelly or jam” which dates from 1873 and in some markets (notably Australia & New Zealand) was sold as a “jam roll” or “Swiss Jam Roll”.  The use of jelly roll as slang for both the vagina and the act of sexual intercourse was of African-American origin circa 1914 and was mentioned several times in blues music, one critic noting it appeared to be used more frequently in the derived fork “talking blues”.  The jellybean (also (rarely) jelly-bean) (small bean-shaped, multi-colored sugar candy with a firm shell and a thick gel interior) was introduced in 1905, the name obviously from the shape.  It entered US slang in the 1910s with the sense of “someone stupid; a half-wit” which was apparently the source of the slang sense of bean as “head”.

Once were jelly rolls: 1967 Mercedes-Benz 600 (with Biskuitrolles (jam rolls) or Nackenrolles (neck rolls), left), 1969 Mercedes-Benz 600 (with “croissants” or “rabbits ears”, centre) and 1990 Mercedes-Benz 560 SEL (with boring “headrests”, right).

The shape of the jelly roll was noted by Germans when Mercedes-Benz introduced their Kopfstütze (literally “head support” although in the factory’s technical documents the design project was the Kopfstützensystem (head restraint system)) when the 600 (W100, 1963-1981) was displayed at the 1963 Frankfurt Motor Show, the early cars having only a rear-pair as standard equipment (there was an expectation many 600s would be chauffeur-driven) with the front units optional but the hand-built 600 could be ordered with one, two, three or four Kopfstützen (or even none although no 600s seem to have been ordered so-configured).  In the early press reports the shape was described with a culinary reference, comparisons made with a Biskuitrolle mit Marmelade (jam filled sponge roll) and the baker’s jargon was again used in 1969 when the design was revised, the critics deciding the new versions look like croissants although in the English-speaking world “rabbits ears” was preferred which was much more charming.  Uncharmed, the humorless types at the factory continued to call them teilt (split) or offener Rahmen (open-frame).   

1996 Ford Taurus Ghia (left) and 1996 Ford EF Falcon XR8 (right).

In the 1990s, jellybean was the (usually disparaging) term often applied to the depressingly similarly-shaped cars which were the product of wind-tunnels; while aerodynamically efficient, few found the lines attractive.  In 1996, Ford Australia put the US-sourced Taurus into the showrooms alongside the locally-built and well-received EF Falcon.  As well as carrying the stigma of FWD (front wheel drive), the Taurus's “jellybean” styling alienated buyers, some of whom suggested the it looked as if it was awaiting repairs having suffered an accident.  The Taurus was withdrawn from the Australian market after two years of dismal sales, dealers managing to clear to unsold stock only after a further season of heavy discounting.

Champagne Jelly

Champagne Jelly was served at the coronation banquet of Edward VII (1841–1910; King of the United Kingdom and Emperor of India 1901-1910) in 1902 and has since been a popular “nostalgia” dish, seen often at weddings or seasonal celebrations.

Ingredients (to serve six)

1 750 ml bottle of champagne
2 sachets (2½ tsp each) powdered gelatin (or 8 gelatin sheets)
2 tablespoons water (if using powdered gelatin)
115g (4 oz) white sugar
Berries and/or edible flowers (optional)
Fresh mint leaves, for garnish

Instructions

(1) Place champagne bottle in a freezer 30 minutes before beginning preparation (this will ensure jelly will retain the bubbles).

(2) In a small bowl, sprinkle the powdered gelatin (if using), over the water and let stand until softened (typically 3-5 minutes).  If using gelatin sheets, put sheets into a bowl and cover with cold water, soaking until floppy (typically 5-10 minutes).

(3) Open champagne and pour 120 ml into a small pan.  Return corked champagne to freezer, ensuring bottle remains upright.  If this is not possible, put bottle into fridge in upright position.

(4) Add the sugar to the pan, place over a medium heat, and heat, stirring, until the sugar dissolves at which point, remove from heat.  Liquefy the powdered gelatin by setting the bowl of softened gelatin into a larger bowl of very hot tap water (do not use boiling water).

(5) If using gelatin sheets, lift the sheets from the water, wring to release excess water, then put them into a bowl and liquefy as for the powdered gelatin.  Add the liquefied gelatin to the champagne mixture and stir until the gelatin dissolves.

(6) Strain the mixture through a fine sieve into a bowl or pitcher, then allow to cool to room temperature.

(7) Add 480 ml of chilled champagne to the cooled gelatin mixture and stir well.  If adding berries or edible flowers, pour half of the gelatin mixture into a 600 ml (1 pint) mould and chill until almost set (typically 30-45 minutes).  Arrange the embellishments on top, then add the remaining gelatin mixture.

(8) If serving the jelly without embellishments, pour all the gelatin mixture into the mould.  Cover and refrigerate until fully set (at least 12 hours and preferably longer).  At this point drink remaining champagne; if need be, open a second bottle.

(9) To serve, fill a bowl with hot water.  Dip the bottom of the mould into the hot water for a few seconds to loosen the jelly from the mould, then place on a serving plate and garnish with mint.

Lindsay Lohan, New York City, November 2022.

Lindsay Lohan in November 2022 appeared on ABC’s Good Morning America to promote the Netflix movie, Falling for Christmas.  What caught the eye was her pantsuit in a gallimaufry of colors from Law Roach’s (b 1978) Akris’ fall 2022 ready-to-wear collection, the ensemble including a wide-lapelled jacket, turtleneck top and boot cut pants fabricated in a green, yellow, red & orange Drei Teile print in an irregular geometric pattern.  Whether the color combination was inspired by champagne jelly wasn't discussed and the distinctive look was paired with a similarly eclectic combination of accessories, chunky gold hoop earrings, a crossbody Anouk envelope handbag, and Giuseppe Zanotti platform heels.  The enveloping flare of the trousers concealed the shoes which was a shame because, while hardly original, the Giuseppe Zanotti (b 1957) bebe-style pumps in gloss metallic burgundy leather deserved to be seen, distinguished by 2 inch (50 mm) soles, 6-inch (150 mm) heels, an open vamp, rakish counters and surprisingly delicate ankle straps.  The stylist's desire for the hem of the trousers to reach to the ground is noted but the shoes were nice pieces.  The fashion critics are a tough and unforgiving crew and it can be hard to predict which way they'll jump but the collective reaction was positive.  

Unrestricted

Unrestricted (pronounced uhn-ri-strik-tid)

(1) Not restricted or confined.

(2) In the classification of documents, having no security classification.

1766: The construct was un-+ restrict + -ed.  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 verb restrict was in use by at least the 1530s in the sense of “to limit, bound, confine (someone or something), prevent from passing a certain limit in any kind of action” and was from the Latin restrictus, past participle of restringere (bind fast, restrain) and perfect passive participle of restringō (draw back tightly; restrain, restrict), the construct being re- (back, again) + stringō (press, tighten, compress); as an adjective, it was a doublet of ristretto. By the eighteenth century, the word had come to be regarded as a Scotticism but the infection spread quickly to Standard English.  As the past-participle adjective from restrict (in the sense of “limited, confined”), restricted has become associated with the classification of government documents, in the sense of “not for public release”, use seems not to have been routine until 1944 when a system of classification was codified by the US government.  Prior to that, although restrictions of distribution were common, concepts such as “Restricted to [names or designations]”, “Secret”, “Top Secret” etc were used but there was no standardization within departments or even between branches of the military.  When used as a suffix to form possessional adjectives from nouns, -ed was from the Middle English -ed, from the Old English -od (the adjectival suffix), from the Proto-Germanic -ōdaz, from the primitive Indo-European -ehtos.  It was cognate with the Latin -ātus. 

Glory road: A “Derestricted” sign in Australia's Northern Territory from the days of “no speed limits”.

In use, the older adjectival use was simply “restrict” and although “unrestricted” would seem an absolute (ie something either is restricted or it is not), dictionaries confirm the comparative is “more unrestricted” and the superlative “most unrestricted” although at least one style guide notes those forms can be regarded in a similar way as “very unique” (ie technically incorrect but widely used and well-understood.  The related adverb “restrictedly” was and remains rare.  In the US, well into the twentieth century, the appearance of the word “restricted” in advertisements, signage and such was verbal shorthand for (depending on context and location): “No Jews”, “No coloreds” etc.  Although the words “unrestricted” & “derestricted” describe similar states, different histories are implied and that’s a product of the ways in which the absence of restrictions came about.  Unrestricted means literally “no restrictions” (access to something or somewhere; rights to engage in trade etc).  “Derestricted” means that previously restrictions must have been imposed but those have since been removed.  The use applies to document classifications and in the now rare cases of roads with no speed limits (although some of those were something of a linguistic outlier because in many cases they never had any restrictions to be derestricted.  For obvious reasons, in English, “unrestricted” is the more commonly used form.  Unrestricted, unrestrictive & unrestrictable are adjectives, unrestrictedness is a noun and unrestrictedly is an adverb.

1978 Mercedes-Benz 450 SEL 6.9 on the Northern Territory's derestricted roads.  Although the factory only ever claimed 225 km/h (140 mph), top speed of UK-delivered “Euro spec” 6.9 (ie one not fitted with the power-sapping anti-emission devices fitted to those built for sale in the US or Australia) turned out to be a verified 237 km/h (147 mph) which reflected the experience of European testers who achieved 238 km/h (148 mph) on the German Autobahns.  Unexceptional now, in such pace was in the 1970s a reasonable achievement for a heavy cruiser with pre-modern aerodynamics; at high-speed, the fuel consumption was awe inspiring.    

Idealistic lawyers (they do exist) and others have for centuries argued it is the existence of and adherence to laws which makes possible civilized societies, the alternative often expressed as “the law of the jungle”, best understood in the vernacular “kill or be killed” world in which life of man was “solitary, poor, nasty, brutish, and short”, memorably described in Leviathan (1651) by the very clever and deliciously wicked English philosopher Thomas Hobbes (1588-1679).  However, what the lawyers, at least privately, acknowledge is the extent of adherence to laws closely is tied to (1) their enforcement and (2) a layered system of punishments for transgressions.  In domestic legal systems, this is comprehended as the apparatus extending from receiving a fine for overstaying one’s time at a parking meter to being hanged for murder; the existence of laws does not prevent crime but the perception of the chance of detection and the subsequent penalty for many operates as a deterrent and the debates about relationship between certain penalties and their deterrent effect continue.

Mahan's The Influence of Sea Power upon History 1660-1783.  In the last decade of the nineteenth century, probably no book was more read in palaces, chancelleries & admiralties.

In war, although usually the opposing sides have geo-political objectives, for those doing the fighting, historically the business was about killing each other and in practice that of course quickly and understandably came to imply “by whatever means possible” but for many centuries there have been conventions which form of “rules of war”, the most celebrated the various chivalric codes (codified during of the Middle Ages) which sought to regulate the behaviour of soldiers, particularly towards civilians.  However, as US Navy Captain Alfred Mahan (1840–1914) pointed out in the epoch-making The Influence of Sea Power upon History, 1660–1783 (1890), it’s impossible by mere agreement to outlaw the use of a militarily effective weapon so is it any more plausible for a statute, treaty or agreement to limit “mission creep” in the methods?  Whatever knightly codes may have existed, there seems little doubt that on the battlefield (or the towns subject to rape & pillage) habits do tend towards “unrestricted warfare”, military historians and legal theorists often pondering whether in “existential conflicts”, law reasonably can be expected to retain its intended force.

In what was a rhetorical flourish rather than a substantive legal point, in the dock before the IMT (International Military Tribunal) which in 1945-1946 sat in Nuremberg to try 22 of the surviving senior Nazis, Hermann Göring (1893–1946; leading Nazi 1922-1945, Hitler's designated successor & Reichsmarschall 1940-1945) claimed to be quoting Winston Churchill (1875-1965; UK prime-minister 1940-1945 & 1951-1955) in citing: “In the struggle for life and death there is in the end no legality.”  Like William Shakespeare (1564–1616), a few phrases have been attributed to Churchill on the basis of “sounding Churchillian” and although there’s nothing in the record to support the case those exact words ever passed his lips, Göring’s paraphrase was not unreasonable.  After the fall of France in 1940, Churchill did make clear his view “there could be no justice if, in a mortal struggle, the aggressor tramples humanity while those resisting remain bound by violated conventions” by which he meant if the Nazis ignored international law, it was an absurdity for the Allies fully to remain constrained by it while fighting for their very survival.  Churchill was not advocating the rejection of established law as a principle; he was saying when a state faces the prospect of destruction at the hand of an enemy ignoring the accepted rules of war, strict legalism must not be allowed to prevent an effective defence.  That wasn’t a novel idea Churchill formed upon assuming the premiership.  Months earlier, when serving as First Lord of the Admiralty (minister for the navy), he’d discussed whether the UK should regard itself still restricted by the legal conventions Germany’s forces were ignoring: “The Germans have torn up the conventions and the usages of war.  We cannot allow ourselves to be bound by rules which the enemy does not observe if by doing so we place our country in mortal danger.”  While not exactly the words used by Göring in the dock, he captured the spirit of Churchill’s meaning.

Lindsay Lohan on the cover of Vogue Arabia, March 2026.  Among the topics raised in discussion about her not uneventful life was “…coming of age in the spotlight in a time of unrestricted paparazzi access and near-constant tabloid scrutiny.”

Of course on 15 March 1946, borrowing the thoughts of “…one of our greatest, most important, and toughest opponents…” to support his argument modern, industrial, total war had rendered irrelevant traditional legal restraints, he was still harbouring the (faint) hope he might escape the noose and thus has a good motive in seeking to undermine the moral authority of the tribunal by suggesting even Churchill had acknowledged that in existential war, legal rules collapse.  This was not the construction of legal theory in the abstract, just as Churchill was explaining the pragmatic nature of military necessity because as he pointed out: “without victory there is no survival” and were the UK unilaterally to obey the rules while its opponents did not, the nation might lose the war.  Neither man ever sought to maintain that in war laws vanish, only that as demanded in extraordinary and reprehensible circumstances, they may need to be ignored.  Essentially, Churchill was asserting he wasn’t prepared to behave with the propriety of Caesar’s wife while Göring cavorted with Caesar’s whores; with that the Reichmarshall gleefully would have agreed and although his hopes the tribunal might find his paraphrased defence exculpatory were by then faint indeed, he still had an eye on the figure he hoped to cut in the history books.  

The doctrine of military necessity of course dates from the first time some prehistoric character picked up a stick or rock to gain tactical advantage in an argument and despite the various codes of warfare promulgated over millennia by philosophers, priests and politicians, that doctrine survived into the age of musketry and later, atomic bombs.  It’s the Prussian general and military theorist Carl von Clausewitz (1780–1831) who often is quoted because, with his commendable economy of phrase, succinctly he explained why necessity so often prevails over legality in existential war.  In On War (1832), he observed “War is an act of force, and there is no logical limit to the application of that force” and, anticipating the idealists, added: “Kind-hearted people might of course think there was some ingenious way to disarm or defeat an enemy without too much bloodshed… Pleasant as it sounds, it is a fallacy.”  What Clausewitz called Kriegsräson (necessity in war) meant in practice was (1) war has an inherent tendency toward escalation, because each side must use whatever means are necessary to defeat the other and (2) “arms races” will tend to ensue.

Imperial Chancellor Theobald von Bethmann Hollweg in field uniform including the famous Prussian Pickelhaube (spiked helmet, the construct being Pickel (pimple, pickaxe) +‎ Haube (hood, cap)), Berlin, 1915.  Even when serving as chancellor (prime minister) von Bethmann Hollweg sometimes wore military uniform; Germans adore uniforms (note the jackboots).

Later in the century, German military jurists expressed this logic through the principle Kriegsräson geht vor Kriegsmanier (military necessity overrides the customary rules of war) by which they meant the laws and customs of war could be followed only to the extent adherence did not impose an unacceptable military cost; if survival (and in practice: “immediate advantage”) demanded those rules be violated, necessity prevails.  What was at the time the most outrageous admission of the application of the doctrine came in 1914 after Germany violated Belgium’s neutrality and was delivered by Theobald von Bethmann Hollweg (1856–1921) who between 1909-1917 served as one of a series of inadequate replacements of Otto von Bismarck (1815-1989; chancellor of the German Empire (the “Second Reich”) 1871-1890); imperial chancellor of the German Empire 1909-1917).  In what must remain among the more ill-advised statements delivered by a politician, von Bethmann Hollweg on 4 August 1914 stood in the Reichstag (lower house of the imperial parliament) and explained to assembled members the German war-plan required the army marching Belgium to attack France and that Germany being a signatory to the Treaty of London (1839) which guaranteed Belgium’s neutrality had been rendered irrelevant by military necessity, the always quoted passage being: “We are violating international law, but necessity knows no law.”  Not all historians agree Realpolitik held a greater fascination for Germans than others but for students of the art, the chancellor’s speech appears in just about every text-book on the subject.  Warming to his theme, when the British ambassador to Germany protested the violation, von Bethmann Hollweg responded it would be an absurdity were Britain to go to war “just for a scrap of paper” (that scrap being the treaty the Germans had in 1839 signed as co-guarantors of Belgian neutrality).  That cynical turn of phrase was echoed a generation later when, under cross-examination in the dock at Nuremberg, Göring almost gloatingly admitted he and the other leading Nazis had regarded the many treaties they’d signed as “just so much toilet paper.”

Like many a defendant, the defrocked Reichmarshall was at times evasive or dissembling but on the matter of the regime’s attitude to treaties, he was truthful.  A highlight of the 50^th birthday celebration for Joachim von Ribbentrop (1893–1946; Minister of Foreign Affairs of Nazi Germany 1938-1945) had been the presentation to the minister of a diamond-studded casket containing facsimiles of all the treaties he had signed during (his admittedly busy if not productive) tenure.  When one of his aides remarked that there were only “a few treaties we had not broken”, Ribbentrop was briefly uncertain how to react until he saw “…Hitler’s eyes filled with tears of laughter.”  It was said to be a good party which must have been welcome because by 1943 there wasn't much to celebrate in Berlin.  Like Göring, Ribbentrop, was convicted on all four counts (planning aggressive war, waging aggressive war, war crimes & crimes against humanity) and sentenced to be hanged; his life did end on the gallows, unlike Göring who, in circumstances never explained, cheated the hangman by taking poison.

Periscope cam: Footage of USN submarine strike on the Iranian Navy’s frigate IRIS Dena (released by the Pentagon (unclassified)).

One of the intriguing legal matters explored before the IMT was the matter of the lawfulness of “unrestricted submarine warfare” and those discussions were recalled when, early in March, 2026, the Pentagon announced a USN (US Navy) submarine had torpedoed and sunk the Iranian Navy’s IRIS Dena (a Moudge-class frigate) with the loss of more than half the ship’s compliment of 130-odd.  Pete Hegseth (b 1980; US Secretary of Defense (and War) since 2025) described the act as one of “quiet death” although that was a reference to the torpedo’s stealthy approach rather than the explosions which doomed ship and crew.  It was the USN’s first sinking of an enemy warship by torpedo since World War II (1939-1945) and because (1) the US and Iran undeniably are in a “state of armed conflict” (any legal distinction between that and “war” as traditionally defined ceasing decades earlier much to matter), (2) the Dena was a warship and (3) the action took place in international waters, the attack doubtlessly was within the rules of war and the reaction of Tehran in branding it an “atrocity at sea” was a political rather than legal claim.

Defendants in the dock, Nuremberg, 1946.  All were guilty of something and a dozen were sentenced to be hanged (including one in absentia) but the IMT acquitted three who subsequently were prosecuted by German courts.

What however remains of interest is the recent change in tactics by the US which now uses military-level missiles to target and sink what appear to be civilian vessels from Central America, the White House claiming the boats are being used to smuggle narcotics.  When considering the lawfulness of “unrestricted submarine warfare”, the IMT in 1946 held that while international law did limit the conduct of navies in their interactions with non-military (ie merchant craft, fishing boats etc) vessels, because the British merchantmen were from the beginning of the war armed and captains had been ordered by the Admiralty to if possible ram U-boats, they were not entitled to the warning provisions of the protocol.  Beyond that, with reference to the failure on the part of German U-boat (submarine) commanders to rescue their shipwrecked victims, the tribunal observed:

“The evidence further shows that the rescue provisions [of the Protocol] were not carried out and that the defendant [Großadmiral Karl Dönitz (1891–1980; head of the German Navy 1943-1945, German head of state 1945)] ordered that they not be carried out.  The argument of the defense is that the security of the submarine is, as the first rule of the sea, paramount to rescue and that the development of aircraft made rescue impossible.  This may be so, but the Protocol is explicit.  If the commander cannot rescue, then under its terms he cannot sink a merchant vessel and should allow it to pass harmless before his periscope.  These orders, then, prove Doenitz is guilty of a violation of the Protocol.”  Had the judgement at that point ended the legal position would have been clear in that having at least tacitly conceded the defense’s point that rescue was no longer practicable in light of the limitations of the submarine and modern technological developments, the use of submarines as commerce destroyers would have been deemed against international law.  However Doenitz’s counsel introduced evidence (including affidavits from Allied admirals) that the USN & Royal Navy had from the outbreak of hostilities also practiced the “unrestricted submarine warfare” of which the Germans were being accused and this was not a classic Tu quoque gambit (in international law, a justification of action based on an assertion that the act with which the accused is charged was also committed by the accusing parties.  It was from the Latin Tū quoque (translated literally as “thou also” and latterly as “you also”; the translation in the vernacular is something like “you did it too”, thus the legal slang “youtooism” & “whataboutyouism”)).  What counsel argued was that in practicing “unrestricted submarine warfare”, all navies were acting in accordance with international law because such law makes sense only if it is cognizant of the prevailing circumstances (ie reality).  The IMT’s judgement in the Doenitz case was difficult to read (it was only later it was revealed to have been written by a judge who voted for his acquittal) but what it said was (1) the defendant had violated the protocols which were the rules of international law as they at the time stood but (2) the nature of total war had so changed the reality of war at sea that those protocols were no longer law, rendered obsolete and thus defunct.  That was as close as the tribunal came to allowing a tu quoque defense.

Unclassified footage released by the Pentagon of one of dozens of strikes on alleged “narco-terrorist” boats by US Southern Command.  The video included a message from Secretary of War Pete Hegseth: “TO ALL NARCO-TERRORISTS WHO THREATEN OUT HOMELAND - IF YOU WANT TO STAY ALIVE, STOP TRAFFICKING DRUGS.”  As far as is known, in all cases of these strikes, all on board the boats were killed.

So, while the US military (and for this purpose that includes the Coast Guard, National Guard etc) have a free hand to attack on the high seas warships of a hostile combatant, does the doctrine of “unrestricted warfare” extend to civilian vessels allegedly being used for unlawful activities?  Legal scholars have explored this novel development (something genuinely new and introduced during the second administration of Donald Trump (b 1946; US president 2017-2021 and since 2025)) and the consensus seems to be sinking manned civilian vessel with missiles as an instance in peacetime law enforcement is of dubious legality unless strict conditions are met.  The first thing to consider is whether it’s a matter of (1) peacetime law enforcement in international waters (something governed by the UNCLOS (United Nations Convention on the Law of the Sea)), customary international law and any bilateral interdiction agreements and thus a criminal matter rather than an act of war or (2) armed conflict at sea (and thus coming under the laws of naval warfare) which depends of a “state of armed conflict” existing between sovereign states.

However, whichever is held to be operative, as a general principle, civilian vessels are protected from missile attacks and enjoy freedom of navigation (certainly on the high seas); forces from warships may board, inspect, and arrest, but not arbitrarily destroy and under the UNCLOS there are explicit provisions under which a warship can stop a vessel suspected of statelessness or certain crimes but use of force must be necessary and proportionate.  Conceptionally, the notion of “proportionality” is little different from what is the domestic law of many states concerning matters such as self-defense: (1) there is no reasonable alternative and (2) force must not exceed what is needed to achieve a lawful objective.  Because these are events happening “on the water” there are also “graduations” in the use of force which are unique to the nautical environment including signals and warnings, maneuvering to compel a stop, warning shots (the classic “shot across the bows”) and disabling fire.  When civilian vessels are involved, historically, only in extremis (presenting a clear & present threat) would lethal force be deemed appropriate.  In other words, using missiles, without warning, to sink a civilian vessel would, in the context of law enforcement, be thought “disproportionate” especially if the crew’s lives are put at serious risk (inherent in missile attacks).  That’s all based on the precept that whether on land or at sea, states are expected to respect the right to life under international human rights law.  Because the adoption of this technique was so sudden, legal theorists are still working through the implications but it would appear an extension of the concept of “unrestricted warfare” beyond military targets.