Floccinaucinihilipilification

Floccinaucinihilipilification (pronounced flok-suh-naw-suh-nahy-hil-uh-pil-uh-fi-key-shuhn)

(1) The estimation of something as valueless.

(2) The act or habit of describing or regarding something as unimportant, of having no value or being worthless.

1735–1745: Apparently a coinage by pupils of Latin at England’s Eton College (a public (ie private)), the intent jocular but also something of an exercise in the pleonastic and tautological, the construct built (with the odd phonetic substitution or insertion) from the Latin words floccus (a wisp) + naucum (a trifle) +‎ nihilum (nothing) +‎ pilus (a hair) + -fication.  The elements (floccī + naucī + nihilī + pilī) all conveyed the notion “of little or no value, trifling”.  The -fication suffix was an alternative form of -ification, from the Middle English -ificacioun (ending on words generally borrowed whole from Old French), from the Old French -ification, from the Latin -ficātiō, a noun ending which appears on action nouns formed using the suffix -tiō (the English -tion) from verbs ending in -ficō (English -ify).   It was used to convey the idea of “the process of becoming” and was used in words of French or Latin origin, but in the last half-century the forms have become highly productive in English and the choice between -fication & -ification tends to be dictated by the resultant ease of pronunciation although when applying the suffix -ation to a verb ending in -ify, -ification is used instead of the expected -ifiation.  Modern forms like nerdification (the process of making or becoming nerdy) and hipsterfication (the process of making or becoming a hipster or characteristic of hipsters) have proliferated.  Floccinaucinihilipilification is a noun, floccinaucinihilipilificatious is an adjective and floccinaucinihilipilificate, floccinaucinihilipilificated & floccinaucinihilipilificating are verbs; the noun plural is floccinaucinihilipilifications (which some deny exists).

Modern reprint of the Eton Latin Grammar (1887) by Arthur Campbell Ainger (1841-1919).

Bored or baffled pupils in Latin class presumably coined many fake Latin words and it’s the longest, funniest or most vulgar which tended to survive.  At a hefty (by the conventions of English and most languages) 29 letters, floccinaucinihilipilification certainly is long and also enjoys the distinction of being the longest “non-technical” (ie not from medicine, physics etc) word in English although as something used to convey meaning (the very purpose of language), knowing the word does in itself seem floccinaucinihilipilificatious and for those who want more, that adjectival back-formation is lengthier still at a 30 character count.  Both trump that other schoolboy favorite antidisestablishmentarianism (opposition to the withdrawal of state support or recognition from an established (state) church) which manages with 28 and attempts to claim the noun antidisestablishmentarianismist (31) exists have always been dismissed.  Etymologists believe the inventive pupils were inspired by a line which appears in various editions of William Lily's (circa 1468–1522) Latin grammars, one of which was the Eton Latin Grammar in which was listed a number of nouns commonly used in the genitive case with some verbs like pendo and facio expressing the idea of evaluating something as worthless.

Floccinaucinihilipilification: Trends of use.

To say the word is rare is stating the obvious but statistically, use spiked after the spread of the internet and that’s because of all the lists of long, bizarre or obscure words, Google’s ngrams increasing the count every time another one was created or shared.  Because of the way Google harvests data for their ngrams, they’re not literally a tracking of the use of a word in society but can be usefully indicative of certain trends, (although one is never quite sure which trend(s)), especially over decades.  As a record of actual aggregate use, ngrams are not wholly reliable because: (1) the sub-set of texts Google uses is slanted towards the scientific & academic and (2) the technical limitations imposed by the use of OCR (optical character recognition) when handling older texts of sometime dubious legibility (a process AI should improve).  Where numbers bounce around, this may reflect either: (1) peaks and troughs in use for some reason or (2) some quirk in the data harvested.

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

Despite appearing on all those lists, by the twenty-first century, actual (ie “real”) use had been so infrequent that to call it “archaic” was misleading but indisputably it was old and that had much appeal for Sir Jacob Rees-Mogg (b 1969) an English politician who between 2010-2024 sat in the House of Commons, rising to become Lord President of the Council and later a member of cabinet in the memorable administration of Boris Johnson (b 1964; UK prime-minister 2019-2022).  As one who deliberately affects an archaic style, Sir Jacob’s amused colleagues soon dubbed him “the honourable member for the eighteenth century” and he made plain his disdain for much of what modernity has delivered (the EU (European Union), the Labour Party, working class people with ideas above their station, pop music etc) and in gratitude for his stellar service, Sir Jacob was created a Knight Bachelor in Mr Johnson’s resignation honours list (which was as entertaining as any in living memory).  Because the Knight Bachelor is the most ancient of the UK’s many classes of knighthood, that would have pleased him but it’s also low in the pecking order (the “order of precedence” which dictates critical things like where one gets to sit (and, more to the point, next to whom) at certain dinners, church services and such) so that would not.  It ranks below all the knighthoods which are part of the organized orders of chivalry (the Garter, the Thistle, the Bath, the Star of India et al) and unlike the chivalric orders, does not confer any entitlement to the use of post-nominal letters, the form “KB” not used (except in historic reference) after 1815 when knighthoods in the order of the Bath (1725) were reorganized as Knight Grand Cross (GCB) & Knight Commander (KCB).  Still, he picked up the right to be styled “the honorable” when his father (William Rees-Mogg, 1928-2012) was in 1988 created a life peer and when in 2019 he was appointed to the Privy Council, he gained for life the style “The Right Honourable” so there was that.

The Right Honourable Sir Jacob Rees Mogg PC, attending the funeral of Elizabeth II (1926-2022; Queen of the UK and other places, 1952-2022), London, 19 September 2019.

In 2012, Sir Jacob spoke the word “floccinaucinihilipilification” in a debate in the House of Commons, his topic being what he asserted was in the nation a common opinion of the EU and, helpfully, told the house it meant “the habit of regarding something as worthless”.  The 29 letter monster remains the longest word ever to appear in Hansard (a record of parliamentary proceedings) although someone did manage to use pneumonoultramicroscopicsilicovolcanoconiosis (a factitious 45 letter creation said to mean “a lung disease caused by inhalation of very fine silica dust usually found in volcanos”) when appearing before a select committee (not being on the floor of the house it didn’t make the Hansard).  An opportunist extension of the medical term pneumonoconiosis, it was coined during the proceedings of the National Puzzlers' League convention in 1935 in an attempt to create English’s longest word but was dismissed by dictionaries as fake, clinicians and textbooks still referring to the disease as pneumonoconiosis, pneumoconiosis, or silicosis.  British dictionaries may feel compelled to include antidisestablishmentarianism but many overseas publications do not, on the basis there’s hardly any record of its use except in lists of long words which some editors treat as lexicographical freak shows.  Merriam-Webster's Collegiate Dictionary lists the longest as electroencephalographically, also from the physician’s diagnostic tool box.

Bourse

Bourse (pronounced boors)

(1) A stock exchange, the term used variously (depending on context): (1) as a synecdoche for “stock exchange”, (2) collectively of the stock exchanges of continental Europe and (3) specifically the Paris stock exchange (the Bourse de Paris, known usually in English as the “Paris Bourse”).

(2) Figuratively, any place, real, virtual or imaginary where (1) something of value is traded or (2) the value of something tradable is set or settled.

(3) In philately, a meeting of stamp collectors and or dealers where stamps and covers are sold or exchanged.

(4) In botany, the swollen basal part of an inflorescence axis at the onset of fruit development; it bears leaves whose axillary buds differentiate and may grow out as shoots.

1590s: From the mid sixteenth century French burse (meeting place of merchants), from the French bourse (meeting place of merchants (literally “purse”)), from the twelfth century Old French borse (money bag, purse), from the Medieval Latin bursa (a bag), from the Late Latin bursa (oxhide, animal skin and a variant of variant of byrsa (hide)), from the Ancient Greek βύρσα (búrsa or býrsa), (hide, wine-skin) of unknown origin.  Linked terms are used for other European stock exchanges including the Danish børs, the Swedish börs and the German Börse with the roots evident in Modern English words including bursar and reimburse.  Bursa in Late Latin meant “oxhide, animal skin” (reflecting the origins in the Greek) but, by association with use, in Medieval Latin came to mean “purse made of leather” and that meant it came also to mean “supply of money, cash, funds”, extending later to “pension”.  The modern sense of “exchange where stocks are registered and exchanged” dates from 1845, taken directly from the Bourse de Paris (Paris stock exchange).  In one legend, the use of the word “bourse” for such places was said to be derived from the House of Van der Buerse, a family in Bruges, Belgium.  There, merchants and bankers would gather to conduct financial transactions and the a variant of the name “Buerse” came to be used.  The alternative history relates how there was a sign on the front of the Buerse’s house adorned with a painting of three burses (purses).  Bourse is a noun; the noun plural is bourses.

A modern bull scrotum purse.

In French, bourse is also a slang term (usually in the plural) for the scrotum and from gift-shops and street markets around the world, one can buy coin purses (various with clasps, zips and tie-strings) made from the scrotums of various slaughtered creatures.  It appears also in the (usually affectionate) French vulgarity: “Ça remonte à quand, la dernière fois que tu t’es vidé les bourses?” (When was the last time you emptied your balls?  In more polite use, there the bourse d’études (educational scholarship, stipend, student allowance), bourse d’excellence (merit scholarship; fellowship) and boursicaut (small coin purse (mostly archaic though still a favorite among antique dealers).

A bull scrotum purse in a traditional style.

One linguistic development in French might explain something about why the fluctuations in financial markets came increasingly to send ripples throughout economies: In the sixteenth century the verb boursicoter meant “to set money aside” (ie keep it in one’s purse) but by the mid-nineteenth century (under the influence of bourse coming to mean “stock exchange”, it had shifted to mean “having a flutter on the markets; dabbling in the stock market”.  In a similar vein, a boursier (feminine boursière, masculine plural boursiers, feminine plural boursières) could be (1) a scholarship beneficiary, a recipient of a bursary or grant, (2) a stockbroker or trader or (3) one who makes purses and handbags.  In idiomatic use (which survives as a literary device there was sans bourse délier (literally “without opening one's purse”) which is English aligns with “without spending a penny” or “not spending a dime”.

The Modern English purse was from the Middle English purse, from Old English pursa (little bag or pouch made of leather, especially for carrying money), partly from pusa (wallet, bag, scrip) and partly from burse.  The Old English pusa was from the Proto-West Germanic pusō, from the Proto-Germanic pusô (bag, sack, scrip), from the primitive Indo-European būs- (to swell, stuff) and was cognate with the Old High German pfoso (pouch, purse), the Low German pūse (purse, bag), the Old Norse posi (purse, bag), the Danish pose (purse, bag) and the Dutch beurs (purse, bag).  The Old English burse was from the same source as the French bourse.  “Purse” (as a synecdoche for “financial matters generally” is widely used in idiomatic English and persists in the UK persists in the office of Keeper of the Privy Purse, a member of the royal household who manages the financial affairs of the sovereign.  The office dates from the early sixteenth century (things in the palace don’t often change) and can be understood as something like a CFO (chief financial officer) or FC (financial controller (comptroller the historic use)).  Purse had been used in the sense of “the royal treasury” as early as the late thirteenth century and the figurative sense of “money, means, resources, funds” emerged by the mid-1300s, this extending to specific defined instances (such as “prize for winning a horse race etc”) by the 1640s.  The thirteenth century use in Middle English to mean “scrotum” was indicative of the shape and size of the leather pouches used to carry coins.

Lindsay Lohan illustrates the purse and the handbag: The clutch purse (left) would everywhere be understood as “a purse” but in the US such a thing commonly would be called “a clutch” because “purse” is used also of larger items.  The red one (centre) would often be called a purse in the US but elsewhere in the English-speaking world it is certainly a handbag.  By the time something assumes the dimensions of a Louis Vuitton Doctor's Bag (right), it is definitely a handbag, tote or something beyond a purse.

Purse was first used of a “woman's handbag” in the late 1870s.  Originally a purse was “a small bag for carrying money” and that use persisted even after purses became less scrotum-like but in the US it came to be used also of what would in the UK be called a “handbag” (a small bag carried usually by women and typically containing personal items (lipsticks, other makeup and often a “purse” (in the original sense)).  Not infrequently, in trans-Atlantic use, the terms “purse” and “handbag” are used interchangeably, but confusion can arise if there’s no accompanying visual clue which is why the term “clutch purse” has proved so useful.  A clutch purse is a small, often rectangular bag designed conveniently to be carried in one hand (although many are supplied with an (often detachable) chain or strap which can be slung over the shoulder or used in cross-body style.  In the industry, not only is there no set of parameters which defines where a purse ends and a handbag begins and shamelessly manufacturers will use the labels indiscriminately if they suspect it will stimulate sales.  The US usage has infected the rest of the world including places like the UK where once there was a clear distinction and now it’s something really in the eye of the beholder, perhaps recalling the judgment Potter Stewart (1915–1985; associate justice of the US Supreme Court 1958-1981) handed down (in another context) in Jacobellis v Ohio (378 U.S. 184 (1964)): “I shall not today attempt further to define… and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it…”

Bear & bull statues outside the Börse Frankfurt (Frankfurt Stock Exchange, formerly known as the Frankfurter Wertpapierbörse), the world's third oldest stock exchange.  Located in the German state of Hesse, Frankfurt is the country's financial centre.

About the only thing which can be guaranteed of a stock market is it will fluctuate and the most famous terms used of bourses are “bear market” & “bull market”, describing respectively the market conditions as they respond to the central dynamics of the business: fear & greed, both of which tend to manifest in waves because of what is known as the “herd mentality” of investors (gamblers as some prefer to describe themselves).  The collective noun for a group of bulls is a herd (less commonly a gang while bears assemble (a less common behavior for them) in a sloth (or sleuth).  The bull & bear metaphors have been in use since the early eighteenth century and the origin of the “bull” is uncontested and refers to the habit aggressive bulls display in pushing forward and tossing their heads upward, the idea being a herd of “bullish investors” will drive up the prices of the stocks they’re pursuing, thus creating a “bull market”.  The math of these terms is not precisely defined but, as a general principle, the view seems to be they are used of a market in which prices rise (bull) of fall (bear) 20% or more from a recent trough or peak, usually over a period or weeks or months depending on the state of an economy.  The labels can be applied to a single asset, an asset class, a group of securities, or a market as a whole and if the trends are mild or seem tentative, things can be called “bullish” or “bearish”.

One of several bull statues, DPRR (Democratic People's Republic of Rockhampton), Queensland, Australia.

The origin of the bestial analogy of the bear is contested.  The oldest story concerns the London trader who sold a shipment of Canadian bearskins sometime before they had come into his possession, his strategy being a gamble the market would fall and he’d just have to pay less for something he’s already sold at a higher price, thus gaining from “the spread” (the difference between the cost and selling prices and a variation on the mechanism used today by the “short sellers”).  These traders came to be known as “bearskin jobbers”.  The alternative history is more directly from behavioral zoology: the way bears with their powerful limbs and big, sharp claws will, if in the mood “claw stuff down”.

Lindsay Lohan with Valentine’s Day stuffed teddy bear.

The use may also have been influenced by the unfortunate history in England of bull and bear-baiting, gruesome, fight-to-the-death contests between the beasts which seem first to have been held during the thirteenth century and reaching an apex of popularity during the reign of Elizabeth I (1533–1603; Queen of England & Ireland 1558-1603).  An audience would bet on the outcome and the link with stock exchanges is that while markets may percolate for sometimes long periods, there will always be battles between “the bears” and “the bulls” and it’s during these events that great fortunes are made and lost.  The language appealed to writers and was used by the English poet & satirist Alexander Pope (1688-1744) in Book II of The Dunciad (1728), a work mocking the greed and folly of investors (gamblers) associated with the South Sea Bubble, a financial scandal of the early eighteenth century and one of many examples of herd mentality and “irrational exuberance”:

Come fill the South Sea goblet full;
The gods shall of our stock take care:
Europa pleased accepts the Bull,
And Jove with joy puts off the Bear.

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.  Judge Fahey's words recalled those of Potter Stewart (1915–1985; associate justice of the US Supreme Court 1958-1981) when in Jacobellis v Ohio (378 U.S. 184 (1964) he wrote: “I shall not today attempt further to define… and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it…”  Judge Fahey knew a basic white girl when he saw one; he just couldn't name her.  Lindsay Lohan's lawyers did not seek leave to appeal.

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

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

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

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

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

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

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

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

Appellate courts, the hair police and black letter law

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

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

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

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

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

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

Prerogative

Prerogative (pronounced pri-rog-uh-tiv)

(1) An exclusive right, privilege, etc, exercised by virtue of rank, office, or the like; having a hereditary or official right or privilege.

(2) A right, privilege, etc, limited to a specific person or to persons of a particular category.

(3) A power, immunity, or the like restricted to a sovereign government or its representative.

(4) Characterized by lawless state actions (refers to the prerogative state)

(5) Precedence (obsolete except in the legal sense of the hierarchy of rights).

(6) A property, attribute or ability which gives one a superiority or advantage over others; an inherent (though not necessarily unique) advantage or privilege; a talent.

(7) In constitutional law, a right or power exclusive to a head of state (often derived from the original powers of a monarch) or their nominee exercising delegated authority, especially the powers to appoint or dismiss executive governments.

1350-1400: From the Anglo-Norman noun prerogatif, from the Old French prerogative, from the Latin praerogātīva (previous verdict; claim, privilege), noun use of the feminine singular of praerogātīvus (having first vote; privileged), in Anglo-Latin as prerogativa from late thirteenth century.  The origin lay in a statute in the civil law of Ancient Roman which granted precedence to the tribus, centuria (an assembly of one-hundred voters who, by lot, voted first in the Roman comita).  The law guaranteed them a praerogātīvus (chosen to vote first) derived from praerogere (ask before others).  The construct of praerogere was prae (before) + rogare (to ask, ask a favor), apparently a figurative use of a primitive Indo-European verb meaning literally "to stretch out (the hand)" from the root reg- (move in a straight line).  In Middle English, the meaning "an innate faculty or property which especially distinguishes someone or something" was added.  The alternative spelling prærogative is long obsolete.  Prerogative is a noun & adjective, prerogatived is an adjective and prerogatively is an adverb; the noun plural is prerogatives.

In English law, a court classified as “a prerogative court” was one through which the discretionary powers, privileges, and legal immunities reserved to the sovereign could be exercised.  The best known of these courts was the Court of Exchequer, the Court of Chancery and the Court of the Star Chamber (the latter one of those institutions formed to rectify injustice but which was later the source of much; the Court of the Star Chamber may be used as a case-study explaining the phrase: “the road to hell is paved with good intentions”).  In time, clashes between the prerogative courts and common law courts became something of a proxy-theatre in the contest between the king and parliament.  The way that worked out was that the ancient (essentially personal) prerogative rights of the monarch weren’t abolished but rather exercised by parliament or institutions (including courts) to which the powers were delegated.  Whether any prerogative power remains in the hands of the sovereign to be used in “extraordinary and reprehensible circumstances” remains a matter of debate.  There were also ecclesiastical prerogative courts under the authority of the archbishops of Canterbury and York but they existed only to handle probate matters in cases where estates beyond a certain defined value were spread between the two dioceses but they also handled many wills of those who died in colonial or other overseas service.  As part of the great reforms of the late nineteenth century undertaken in the Judicature Acts (1873-1899) the jurisdiction of the ecclesiastical prerogative moved to the common law courts, being finally vested in the Family Division of the High Court of Justice.

In English law, the still sometimes invoked prerogative writ (the best known of which were habeas corpus (from the Latin habeas corpus ad subjiciendum (usually translated as “bring up the body (ie the prisoner))), a demand a prisoner being held by an organ of the state be brought before a court to determine whether there was lawful authority for the detention) and mandamus (from the Latin mandāmus (we command)), an order issued by a higher court to compel or to direct a lower court or a government officer correctly to perform mandatory duties) was a class of six orders available to the crown for the purpose of directing the action of an organ of government (including courts, officials or statutory bodies).  The name was derived from the authority these exercised being traceable ultimately to the discretionary prerogative & extraordinary power of the monarch and the principle remains in use in many common law jurisdictions which evolved from the old British Empire, notably those of the Raj of colonial India.

The woman's prerogative

For a man incautiously to use the phrase “a woman's prerogative”, the risk would be “cancellation” (or worse) although it’s probably still acceptable if there’s a layer of irony.  The phrase is a clipping of the full: “it’s a woman’s prerogative to change her mind”, the implication being women have the right to change their minds or make decisions based on their own preferences and need provide no explanation or justification.  Wise men (and the pussy-whipped) accept this without demur.  It is of course a reflection of a cultural stereotype and seems to have come into use in the mid-nineteenth century, an era in which gender roles were more rigidly defined and women were thought to be more capricious or whimsical in their actions.  However, in law, the “woman's prerogative” was once enforceable, granting them rights not available to men, a most unusual development in Western jurisprudence.

Well into the twentieth century, it was legal orthodoxy in common law jurisdictions for an offer of marriage to be enforceable under the rules of contract law.  While courts didn’t go as far as ordering “specific performance” of the contract (ie forcing an unwilling party to marry someone), they would award damages on the basis of a “breach of promise”, provided it could be adduced that three of the four essential elements of a contract existed: (1) offer, (2) certainty of terms and (3) acceptance.  The fourth component: (4) consideration (ie payment), wasn’t mentioned because it was assumed to be implicit in the nature of the exchange; a kind of “deferred payment” as it were.  It was one of those rarities in common law where things operated wholly in favor of women in that they could sue a man who changed his mind while they were free to break-off an engagement without fear of legal consequences though there could be social and familial disapprobation.  Throughout the English-speaking world, the breach of promise tort in marriage matters has almost wholly been abolished, remaining on the books in the a handful of US states (not all of which lie south of the Mason-Dixon Line) but even where it exists it’s now a rare action and one likely to succeed only in exceptional circumstances or where a particularly fragrant plaintiff manages to charm a particularly sympathetic judge.

The royal prerogative and the reserve powers of the crown

The royal prerogative is the body of customary authority, privilege, and immunity and the means by which (some of) the executive powers of government are exercised in the governance of the state.  These powers are recognized in common law (and in some civil law) jurisdictions are held to vest wholly in the sovereign alone, even if exercised through either appointees (of which governors, governors-general & viceroys are the best-known) constitutional government.  In the narrowest sense of technical theory, the recognition of the personal powers of a sovereign exists in most common law systems where the concept is relevant but has long since mostly been reduced to legal fiction and in most constitutional monarchies, almost all individual prerogatives have been abolished by parliaments.  Some republican heads of state also possess similar powers but they tend to be constitutionally defined and subject to checks and balances.  A notable exception to this is a US president’s un-trammeled right to grant pardons to those convicted of offences under federal law and that’s interesting because it’s the only power in the US Constitution not subject to a check or balance.  A US president thus personally continues to exercise a prerogative in a way a British monarch (or their appointees as governors & governors-general), from whom the power is derived, no longer can.

In Britain, prerogative powers were originally exercised by the monarch (at least in theory and the role of the Church needs also to be noted) acting alone but after the Magna Carta (1215, from the Medieval Latin Magna Carta Libertatum (Great Charter of Freedoms) which divided power among the ruling class, there had to be sought the consent of others and this ultimately became parliamentary consent granted to an executive (exercising powers derived from the absolute authority of the monarch) responsible to the parliament.  This took centuries to evolve and eventually meant, in practical terms, the king got the money he needed for his wars and other ventures in exchange for the parliament getting his signature to pass the laws they wanted.

Watched by the courtiers Lord Mulgrave & Lord Morpeth, Lord Melbourne serves King William IV a blackbird pie (1836), lithograph with watercolour by John Doyle (1797-1868), Welcome Collection, London.  The text is a re-arranged selection of lines from the eighteenth century English nursery rhyme “Sing a Song of Sixpence” and reads: “Sing a song of six pence a bag full of rye, four and twenty black birds baked in a pie, when the pie was opened, the birds began to sing, was not this a pretty dish to set before a king.”  The blackbirds sing “Justice for Scotland!” and “No tithes!”, controversial issues of the age.  Nineteenth century cartoonists were sometimes more harsh in their treatment of politicians and royalty. 

In Australia, the royal prerogative is limited (but not defined) by the constitution and those powers which vest a monarch’s authority in a governor-general don’t alter the nature of the prerogative, only its detail; the prerogative is exercised by the governor-general but only on the advice of “their” ministers.  The most obvious exception to this is the reserve power of the monarch (and there are those who doubt whether this still exists in the UK) to dismiss a government enjoying the confidence of the lower house of parliament.  In the UK, it’s not been done since William IV (1765–1837; King of the United Kingdom 1830-1837) dismissed Lord Melbourne (1779–1848; Prime Minister of Great Britain 1834 & 1835–1841) in 1834 (some dispute that, saying it was more of a gentleman’s agreement and the last termination was actually that of Lord North (1732–1792; Prime Minister of Great Britain 1770-1782) by George III (1738–1820) King of Great Britain 1760-1820) in 1782) but Australia has seen two twentieth-century sackings; that in 1932 of NSW premier Jack Lang (1876–1975; Premier of New South Wales 1925-1927 & 1930-1932) by Governor Sir Philip Game (1876–1961; Governor of NSW 1930-1935) and, in 1975, when governor-general Sir John Kerr (1914–1991; Governor-General of Australia 1974-1977) sundered Gough Whitlam’s (1916–2014; Prime Minister of Australia 1972-1975) commission.

Dr HV Evatt in his office at the United Nations, New York, 1949.

The 1975 business provoked much academic discussion of the reserve powers but the most lucid read remains Dr HV Evatt’s (1894–1965; ALP leader 1951-1960) book from decades earlier: The King and His Dominion Governors (1936).  Evatt’s volume was published a hundred odd-years after William IV sacked Melbourne and is useful because in that century there had been more than a few disputes about reserve powers.  Evatt’s central point was that the powers exist but proper rules by which they may be exercised are by no means clear.  The legal power is vested in the governor as the representative of the monarch and when it may properly be used depends on usage and convention.  It seems therefore scarcely possible to say confidently of any case when the Crown has intervened that its intervention was or was not correct for the only standard of correctness in each episode is its consistency with episodes of a similar character, none of which in themselves lay down any principle in law.  Further, Evatt notes, in looking to precedent, support for almost any view can be found in the authorities.  Lofty theoretical purity is also not helpful.  The view the sovereign automatically acts in all matters in accordance with the advice of his ministers rests entirely upon assertion and, Evatt observed, the reserve powers are still, on occasion, properly exercisable and that the Sovereign or his representative may have to exercise a real discretion.  Given that, it really might be impossible that the prerogative could be codified in a document which envisages all possible political or other circumstances.  Evatt nevertheless argued the principles which should guide a sovereign should be defined and made clear by statute.

Nor is practical political reality all that much help, however satisfactory an outcome may prove.  What the exercise of the reserve powers, both in 1932 and 1975, did was enable impasses described, however erroneously as constitutional crises to be resolved by an election, rather than other means.  The result of an election however does not conclude the matter for the correctness of the sovereign's action is not measured by his success as a prophet, any post-facto endorsement by the electorate having not even an indirect bearing on the abstract question of constitutionality.

Although variously a high court judge, attorney-general, foreign minister, opposition leader and Chief Justice of NSW, all Dr Evatt asked for on his gravestone was President of the United Nations, noting his service as president of the general assembly (1948-1949).

Evatt’s core argument therefore was reserve powers should be subject to the normal and natural process of analysis, definition and reduction to the rules of positive law, which, by 1936, had in some places been done.  Evatt considered section 33 (10) of the Western Nigerian constitution which codified things thus: The Governor shall not remove the Premier from office unless it appears to him that the Premier no longer commands the support or a majority of the members of the House of Assembly.  Other sections went on to detail the mechanisms of the exercise of the power, thereby attempting to do exactly what Evatt suggests.  However, the Nigerian example cited by Evatt did not prove a solution because the exercise of the power under the constitution became in 1962 a matter of dispute and the case proceeded though the courts, finally ending up before the Privy Council as Adegbenro v. Akintola (1963 AC 614), an indication even the most explicit codification can remain something imperfect.