Evil

Evil (pronounced ee-vuhl)

(1) Morally wrong or bad; immoral; wicked; morally corrupt.

(2) Harmful; injurious (now rare).

(3) Marked or accompanied by misfortune (now rare; mostly historic).

(4) Having harmful qualities; not good; worthless or deleterious (obsolete).

Pre 900: From the Middle English evel, ivel & uvel (evil) from the Old English yfel, (bad, vicious, ill, wicked) from the Proto-Germanic ubilaz.  Related were the Saterland Frisian eeuwel, the Dutch euvel, the Low German övel & the German übel; it was cognate with the Gothic ubils, the Old High German ubil, the German übel and the Middle Dutch evel and the Irish variation abdal (excessive).  Root has long been thought the primitive Indo-European hupélos (diminutive of hwep) (treat badly) which produced also the Hittite huwappi (to mistreat, harass) and huwappa (evil, badness) but an alternative view is a descent from upélos (evil; (literally "going over or beyond (acceptable limits)")) from the primitive Indo-European upo, up & eup (down, up, over).  Evil is a noun & adjective (some do treat it as a verb), evilness is a noun and evilly an adverb; the noun plural is evils.

Evil (the word) arrived early in English and endured.  In Old English and all the early Teutonic languages except the Scandinavian, it quickly became the most comprehensive adjectival expression of disapproval, dislike or disparagement.  Evil was the word Anglo-Saxons used to convey some sense of the bad, cruel, unskillful, defective, harm, crime, misfortune or disease.  The meaning with which we’re most familiar, "extreme moral wickedness" existed since Old English but did not assume predominance until the eighteenth century.  The Latin phrase oculus malus was known in Old English as eage yfel and survives in Modern English as “evil eye”.  Evilchild is attested as an English surname from the thirteenth century and Australian-born Air Chief Marshall Sir Douglas Evill (1892-1971) was head of the Royal Air Force (RAF) delegation to Washington during World War II (1939-1945).  Despite its utility, there’s probably no word in English with as many words of in the same vein without any being actually synonymous.  Consider: destructive, hateful, vile, malicious, vicious, heinous, ugly, bad, nefarious, villainous, corrupt, malefic, malevolent, hideous, wicked, harm, pain, catastrophe, calamity, ill, sinful, iniquitous, depraved, vicious, corrupt, base, iniquity & unrighteousness; all tend in the direction yet none quite matches the darkness of evil although malefic probably come close.  

Hannah Arendt and the banality of evil

The word evil served English unambiguously and well for centuries and most, secular and spiritual, knew that some people are just evil.  It was in the later twentieth century, with the sudden proliferation of psychologists, interior decorators, sociologists, criminologists, social workers and basket weavers that an industry developed exploring alternative explanations and causations for what had long been encapsulated in the word evil.  The output was uneven but among the best remembered, certainly for its most evocative phrase, was in the work of German-American philosopher and political theorist Hannah Arendt (1906–1975).  Arendt’s concern, given the scale of the holocaust was: "Can one do evil without being evil?"

Whether the leading Nazis were unusually (or even uniquely) evil or merely individuals who, through a combination of circumstances, came to do awful things has been a question which has for decades interested psychiatrists, political scientists and historians.  Arendt attended the 1961 trial of Adolph Eichmann (1906-1962), the bureaucrat responsible for transportation of millions of Jews and others to the death camps built to allow the Nazis to commit the industrial-scale mass-murder of the final solution.  Arendt thought Eichmann ordinary and bland, “neither perverted nor sadistic” but instead “terrifyingly normal”, acting only as a diligent civil servant interested in career advancement, his evil deeds done apparently without ever an evil thought in his mind.  Her work was published as Eichmann in Jerusalem: A Report on the Banality of Evil (1963).  The work attracted controversy and perhaps that memorable phrase didn’t help.  It captured the popular imagination and even academic critics seemed seduced.  Arendt’s point, inter alia, was that nothing in Eichmann’s life or character suggested that had it not been for the Nazis and the notion of normality they constructed, he’d never have murdered even one person.  The view has its flaws in that there’s much documentation from the era to prove many Nazis, including Eichmann, knew what they were doing was a monstrous crime so a discussion of whether Eichmann was immoral or amoral and whether one implies evil while the other does not does, after Auschwitz, seems a sterile argument.

Evil is where it’s found.

Hannah Arendt's relationship with Martin Heidegger (1889–1976) began when she was a nineteen year old student of philosophy and he her professor, married and aged thirty-six.  Influential still in his contributions to phenomenology and existentialism, he will forever be controversial because of his brief flirtation with the Nazis, joining the party and taking an academic appointment under Nazi favor.  He resigned from the post within a year and distanced himself from the party but, despite expressing regrets in private, never publicly repented.  His affair with the Jewish Arendt is perhaps unremarkable because it pre-dated the Third Reich but what has always attracted interest is that their friendship lasted the rest of their lives, documented in their own words in a collection of their correspondence (Letters: 1925-1975, Hannah Arendt & Martin Heidegger (2003), Ursula Ludz (Editor), Andrew Shields (Translator)).  Cited sometimes as proof that feelings can transcend politics (as if ever there was doubt), the half-century of letters which track the course of a relationship which began as one of lovers and evolved first into friendship and then intellectual congress.  For those who wish to explore contradiction and complexity in human affairs, it's a scintillating read.  Arendt died in 1975, Heidegger surviving her by some six months.

New York Post, November 1999.

In 1999, Rupert Murdoch’s (b 1931) tabloid the New York Post ran one of their on-line polls, providing a list of the usual suspects, asking readers to rate the evil to most evil, so to determine “The 25 most evil people of the last millennium”.  The poll received 19184 responses which revealed some “recency bias” (a cognitive bias that favors recent events over historic ones) in that some US mass-murderers were rated worse than some with more blood on their hands but most commented on was the stellar performance of the two “write-ins”: Bill Clinton (b 1946; US president 1993-2001) & crooked Hillary Clinton (b 1947; US secretary of state 2009-2013), the POTUS coming second and the FLOTUS an impressive sixth, Mr Murdoch’s loyal readers rating both more evil than Saddam Hussein (1937–2006; president of Iraq 1979-2003), Vlad the Impaler (Vlad Dracula or Prince Vlad III of Wallachia (circa 1430-circa 1477); thrice Voivode of Wallachia 1448-circa 1477 or Ivan the Terrible (Ivan IV Vasilyevich (1530–1584; Grand Prince of Moscow and all Russia 1533-1584 & Tsar of all Russia 1547-1584).

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

While fun and presumably an indication of something, on-line polls should not be compared with the opinion polls run by reputable universities or polling organizations, their attraction for editors looking for click-bait being they’re essentially free and provide a result, sometimes within a day, unlike conventional polls which can cost thousands or even millions depending on the sample size and duration of research.  The central problem with on-line polls is that responders are self-selected rather than coming from a cohort determined by a statistical method developed in the wake of the disastrously inaccurate results of a poll “predicting” national voting intentions in the 1936 presidential election.  The 1936 catchment had been skewered towards the upper-income quartile by being restricted to those who answered domestic telephone connections, the devices then rarely installed in lower-income households.  A similar phenomenon of bias is evident in the difference on-line responses to the familiar question: “Who won the presidential debate?”, the divergent results revealing more about the demographic profiles of the audiences of CBS, MSNBC, CNN, ABC & FoxNews than on-stage dynamics on-stage.

Especially among academics in the social sciences, there are many who object to the frequent, almost casual, use of “evil”, applied to figures as diverse as serial killers and those who use the “wrong” pronoun.  Rightly on not, academics can find “complexity” in what appears simple to most and don’t like “evil” because of the simple moral absolutism it implies, the suggestion certain actions or individuals are inherently or objectively wrong.  Academics call this “an over-simplification of complex ethical situations” and they prefer the nuances of moral relativism, which holds that moral judgments can depend on cultural, situational, or personal contexts.  The structuralist-behaviorists (a field still more inhabited than a first glance may suggest) avoid the word because it so lends itself to being a “label” and the argument is that labeling individuals as “evil” can be both an act of dehumanizing and something which reinforces a behavioral predilection, thereby justifying punitive punishment rather than attempting rehabilitation.  Politically, it’s argued, the “evil” label permits authorities to ignore or even deny allegedly causative factors of behavior such as poverty, mental illness, discrimination or prior trauma.

There are also the associative traditions of the word, the linkages to religion and the supernatural an important part of the West’s cultural and literary inheritance but not one universally treated as “intellectually respectable”.  Nihilists of course usually ignore the notion of evil and to the post-modernists it was just another of those “lazy” words which ascribed values of right & wrong which they knew were something wholly subjective, evil as context-dependent as anything else.  Interestingly, in the language of the polarized world of US politics, while the notional “right” (conservatives, MAGA, some of what’s left of the Republican Party) tends to label the notional “left” (liberals, progressives, the radical factions of the Democratic Party) as evil, the left seems to depict their enemies (they’re no longer “opponents”) less as “evil” and more as “stupid”.

The POTUS & the Pope: Francis & Donald Trump (aka the lesser of two evils), the Vatican, May 2017.

Between the pontificates of Pius XI (1857–1939; pope 1922-1939) and  Francis (b 1936; pope since 2013), all that seems to have changed in the Holy See’s world view is that civilization has moved from being threatened by communism, homosexuality and Freemasony to being menaced by Islam, homosexuality and Freemasony.  It therefore piqued the interest of journalists accompanying the pope on his recent 12-day journey across Southeast Asia when they were told by a Vatican press secretary his Holiness would, during the scheduled press conference, discuss the upcoming US presidential election: duly, the scribes assembled in their places on the papal plane. The pope didn’t explicitly tell people for whom they should vote nor even make his preference obvious as Taylor Swift (b 1989) would in her endorsement mobilizing the childless cat lady vote but he did speak in an oracular way, critiquing both Kamala Harris (b 1964; US vice president since 2021) and Donald Trump (b 1946; US president 2017-2021) as “against life”, urging Catholic voters to choose the “lesser of two evils.”  That would have been a good prelude had he gone further but there he stopped: “One must choose the lesser of two evils. Who is the lesser of two evils?  That lady or that gentleman? I don’t know.”

Socks (1989-2009; FCOTUS (First Cat of the United States 1993-2001)) was Chelsea Clinton's (b 1980; FDOTUS (First Daughter of the United States)) cat.  Cartoon by Pat Oliphant, 1996.

The lesser of two evils: Australian-born US political cartoonist Pat Oliphant’s (b 1935) take on the campaign tactics of Bill Clinton (b 1946; US president 1993-2001) who was the Democratic Party nominee in the 1996 US presidential election against Republican Bob Dole (1923–2021).  President Clinton won by a wide margin which would have been more handsome still, had there not been a third-party candidate.  Oliphant’s cartoons are now held in the collection of the National Library of Congress.  It’s not unusual for the task presented to voters in US presidential elections to be reduced to finding “the lesser of two evils”.  In 1964 when the Democrats nominated Lyndon Johnson (LBJ, 1908–1973; US president 1963-1969) to run against the Republican's Barry Goldwater (1909–1998), the conclusion of many was it was either “a crook or a kook”.  On the day, the lesser of the two evils proved to be crooked old Lyndon who won in a landslide over crazy old Barry.

Francis has some history in criticizing Mr Trump’s handling of immigration but the tone of his language has tended to suggest he’s more disturbed by politicians who support the provision of abortion services although he did make clear he sees both issues in stark moral terms: “To send migrants away, to leave them wherever you want, to leave them… it’s something terrible, there is evil there. To send away a child from the womb of the mother is an assassination, because there is life. We must speak about these things clearly.”  Francis has in the past labelled abortion a “plague” and a “crime” akin to “mafia” behavior, although he did resist suggestions the US bishops should deny Holy Communion to “pro-choice” politicians (which would have included Joe Biden (b 1942; US president 2021-2025), conscious no doubt that accusations of being an “agent of foreign interference” in the US electoral process would be of no benefit.  Despite that, he didn’t seek to prevent the bishops calling abortion is “our preeminent priority” in Forming Consciences for Faithful Citizenship, the 2024 edition of their quadrennial document on voting.  Some 20% of the US electorate describe themselves as Catholics, their vote in 2020 splitting 52/47% Biden/Trump but that was during the Roe v Wade (1973) era and abortion wasn’t quite the issue it's since become and a majority of the faith in the believe it should be available with only around 10% absolutist right-to-lifers.  Analysts concluded Francis regards Mr Trump as less evil than Ms Harris and will be pleased if his flock votes accordingly; while he refrained from being explicit, he did conclude: “Not voting is ugly.  It is not good.  You must vote.”

Psyche

Psyche (pronounced sahyk or sahy-kee)

(1) In the mythology of Ancient Greece and Classical Rome, the personification of the soul.  The beautiful nymph was originally a mortal princess who later married Eros (Cupid, the god of love), was deified and bore him a daughter Hedone (Voluptas).

(2) In the popular imagination, the human soul, spirit, or mind.

(3) In psychology & psychoanalysis, the mental or psychological structure of a person, especially as a motive force (as opposed to the pure physicality of the body).  The psyche is the centre of thought, feeling, and motivation, consciously & unconsciously directing the body's reactions to external influences (the social and physical environment).

(4) In philosophy (in neo-Platonism), the second emanation of the One, regarded as a universal consciousness and as the animating principle of the world.

(5) A variant of the noun, verb & adjective psych (mostly in colloquial use as a clipping of psych(ology)).

(6) In cosmology, a main belt asteroid.

(7) A female given name.

(8) A small white butterfly, Leptosia nina, family Pieridae, of Asia and Australasia; a taxonomic genus within the family Psychidae (bagworm moths).  The butterfly was the symbol of the waif Psykhē, thus the frequency with which depictions of a “departed soul, spirit, ghost” were rendered as winged creatures with some resemblance to butterfly.

(9) As “psyche knot”, a technique of knotting up a woman's hair, said to be imitative of the style used in Ancient Greece but because so many of these notions were based on depictions by Medieval and Renaissance artists, the historical efficacy is dubious (known also as the Grecian knot).

(10) As “psyche mirror”, a tall (originally free-standing, framed & mounted between two posts which allowed vertically to pivot) mirror.  Psyche mirrors are still used as decorative pieces although most full-length mirrors are now wall-mounted or function also a wardrobe doors.  The name was gained from the idea that because it reflected the whole body, it symbolized introspection.  The alternative name is “cheval glass”.

1650s: The seventeenth century adoption of “psyche” as an expression of the notion of “animating spirit, the human spirit or mind” reflected the understanding of the time of what was described as “the soul, mind, spirit; life, one's life, the invisible animating principle or entity which occupies and directs the physical body; understanding, the mind (as the seat of thought), faculty of reason”; something which inhabited and controlled the body yet was something separate.  It was used also of the “ghost, spirit of a dead person” although there were differences in interpretation between the religious and secular.  What has long been a puzzle is the extent of the influence of psȳ́chein (to blow, breathe; to cool, to make dry”.  The Ancient Greek ψυχή (psukhḗ) (“soul, spirit” and literally “breath”) was a derivative of psȳ́chein (thus the uses connected with “to live”), the construct being ψῡ́χω (psū́khō) (I blow) +‎ -η (-ē) but the problem is this seems ever to have enjoyed the meaning “breath”, even in the writings of Homer.  More than one etymologist has been recorded as being “tempted” by the long documented connection with the primitive Indo-European root bhes- (to blow, to breathe) which was the source of the Sanskrit bhas- (thought probably imitative).  However, all admit the existence of a link is scant and the theory is thus a conjecture.  Psyche is a noun & verb, psyched is a verb & adjective and psyching is a verb; the noun plural is psyches.

Psych (never psyche) was used as US student slang for the academic study of “psychology” (later extended to references in various senses) by 1895.  Psychology was from the French psychologie, from the Renaissance Latin psychologia, emulating the Greek construct ψυχή (psukhḗ) + -λογία (-logía) (study of), thus in English as psych(o)- +‎ -ology.  The suffix -ology was formed from -o- (as an interconsonantal vowel) +‎ -logy.  The origin in English of the -logy suffix lies with loanwords from the Ancient Greek, usually via Latin and French, where the suffix (-λογία) is an integral part of the word loaned (eg astrology from astrologia) since the sixteenth century.  French picked up -logie from the Latin -logia, from the Ancient Greek -λογία (-logía).  Within Greek, the suffix is an -ία (-ía) abstract from λόγος (lógos) (account, explanation, narrative), and that a verbal noun from λέγω (légō) (I say, speak, converse, tell a story).  In English the suffix became extraordinarily productive, used notably to form names of sciences or disciplines of study, analogous to the names traditionally borrowed from the Latin (eg astrology from astrologia; geology from geologia) and by the late eighteenth century, the practice (despite the disapproval of the pedants) extended to terms with no connection to Greek or Latin such as those building on French or German bases (eg insectology (1766) after the French insectologie; terminology (1801) after the German Terminologie).  Within a few decades of the intrusion of modern languages, combinations emerged using English terms (eg undergroundology (1820); hatology (1837)).  In this evolution, the development may be though similar to the latter-day proliferation of “-isms” (fascism; feminism et al).

Just as Eros (Cupid) was smitten, the word “psyche” seems to have seduced all whoc wrote on the subject of the soul (however understood).  There was much sense development in Platonic philosophy theological writing, especially that written under Jewish influence; in Biblical use the Greek word was used of (1) “the soul as the seat of feelings, desires, affections etc”, (2) “the soul regarded as a moral being designed for everlasting life” and (3) “the soul as an essence which differs from the body and is not dissolved by death.”  In English, the meaning “human soul” dates from the mid-seventeenth century while the modern sense in psychology of “mind” is said only to have some into use after 1910 which seems surprisingly late.  By 1914 the profession was using the verb “psych” to mean “to subject to psychoanalysis” (ie a shortened form of to “psychoanalyse” and the jargon entered general use, from 1934 used as the term “psych out” (to to outsmart) in baseball, (US) football and also in commerce.  In 1952 it was documented in the card game bridge as meaning “to make a bid meant to deceive an opponent” (bridge players thinking their game too complex for the poker player’s mere “bluff”.  By the early 1960s “psych out” had the general meaning “to unnerve” while to “psych (oneself) up” emerged a decade later, building on “psyched up” (stimulate (oneself), prepare mentally for a special effort) first appeared in newspapers in the US in 1968.

The psyche knot

The Hairdo Handbook: A Complete Guide to Hair Beauty (1964) by Dorothea Zack Hanle (1918-1999); the psyche knot was discussed in Chapter XVIII: Handling and Styling Long Hair.  It would be a different, more difficult, world without the "invisible hairpin".

Although Dorothea Zack Hanle was for some time editor of HairDo magazine, she’s remains best remembered for her food writing, her career including a long tenure as an editor at Bon Appetit, several cookbooks and being one of the founders of Les Dames d'Escoffier, an international women's organization that promotes fine dining and wine.  Ms Hanle had quite a journalistic range, he publications including The Surfer's Handbook (1968), Cooking With Flowers (1971), Cooking Wild Game (1974) and the co-authored children's cookbook, The Golden Ladle (1945).  Additionally, she published also on subjects as diverse as gardening, diet and exercise.

The psyche knot (known also as the Grecian knot) was said to be imitative of the style used in Ancient Greece but because so many of these notions were based on depictions by Medieval and Renaissance artists, the historical efficacy is dubious.  Psyche (alone or with Eros (Cupid), her sisters or others) was a popular subject and while in many paintings her hair is stacked high, it was also not unusual for her tresses to be shown flowing as the German illustrator and painter Friedrich Paul Thumann (1834-1908, Berlin) chose for Cupid and Psyche (1900, left).  In Psyche showing her Sisters her Gifts from Cupid, (circa 1753 (centre)) Jean-Honoré Fragonard, (1732–1806) even showed her “having her hair styled”, presumably with an eponymous knot.  In his Expressionist Cupid and Psyche (1907, right), Edvard Munch (1863-1944) decided she deserved a knot.  Now hung in the Munch Museum in Oslo, it’s of interest because it was painted early in the period when Munch had begun to paint human figures, something which would later make him famous, Cupid and Psyche one of 22 works in his collection called The Frieze of Life.  Ominously, the painting was loaned to Musée d'Orsay (Museum d’Orsay) in Paris where it was part of the Crime and Punishment exhibition, organized to emphasize to the population those crimes attracting a death sentence.

The technique used to tie the psyche know wasn’t new in the 1920s but it was then it became a thing.  At that time, the “bob” had become a popular style among bright young things and their many imitators, part of a trend which was both an aesthetic call and a marker of first-wave feminism, a reaction to previous fashions in which clothing had been constricting and voluminous.  Then, called the “garçonne” (a feminized version of the French garçon (boy)), it now remembered as the “flapper style”, distinguished by an angular, slender silhouette, the irony of the look (for all but the genetically lucky) that having abandoned corsets during World War I (1914-1918), most were compelled to seek the help of girdles, garments rather less comfortable than modern shapewear.  Short hairstyles (the bob or the shingle) were an essential part of the “boyish look”, albeit offset by the deliberately obvious application of rouge, eyeliner and lipstick which was famously red.  Some women however wanted “a bob each way” (as it were), liking the short-hair look but wanting to retain the flexibility to display a mane when circumstances demanded or an opportunity was presented.  The solution can be thought of as the “faux bob” and while there were a number of ways to achieve this (including the famous “side-pods”), the psyche know was the simplest to execute and, done properly, would survive an evening’s dancing without the dreaded, annoying “flyaway bits”

The psyche mirror

La Psyché (known in English as The Psyche Mirror, 1876, left), oil on canvas by the French artist Berthe Morisot (1841-1895), Thyssen-Bornemisza Museum, Madrid, Spain shows a woman before a classic “psyche mirror” (known originally as a “psyche glass” (looking-glass still the preferred form among a certain subset (the one in which at cards a jack is called a knave)).  Lindsay Lohan (right) illustrates this generation’s use of the psyche mirror for full-length selfies.  Ms Lohan was with child when this selfie was snapped in New York during 2022 (note the comfortable shoes).  The original psyche mirrors were tall, free-standing, framed & mounted between two posts which allowed them vertically to pivot), the advantage being it made it possible for the subject to view herself in a greater aspect range.  The free-standing designs are still sometimes used as decorative pieces but most full-length mirrors are now wall-mounted or function also a wardrobe doors.  The name was gained from the idea that because it reflected the whole body, it symbolized introspection.  The alternative name is “cheval glass”, from the French form chevel glace (mirror).  Chevel was from the French cheval (horse, supporting frame), from the Middle French cheval, from the Old French cheval, from the Late Latin caballus (horse), from the Classical Latin caballus (pack horse) of uncertain origin.  The term thus deconstructs as glass (mirror) mounted in a supporting frame.

Cupid, Psyche and the Nectar of the Gods

In Greek mythology, Psyche was the youngest and loveliest of a king’s three daughters.  So haunting was Psyche’s beauty that people travelled from afar to pay homage, neglecting the worship of Venus (Aphrodite), the goddess of love and beauty, instead venerating the nymph.  Venus became enraged at finding her altars deserted, men instead turning their devotions to the young virgin, watching as she passed, singing her praises and strewing her way with chaplets and flowers.

Indignant at the exaltation of a mortal, Venus began her righteous rant.  "Am I then to be eclipsed in my honors by a mere mortal girl?  In vain then did that royal shepherd, whose judgment was approved by Jove himself, give me the palm of beauty over my illustrious rivals, Pallas and Juno. But she shall not so quietly usurp my honors. I will give her cause to repent of so unlawful a beauty."  Venus summoned her winged son, the mischievous Cupid and telling him of Psyche, ordered her revenge.  "My dear son, punish that contumacious beauty; give your mother a revenge as sweet as her injuries are great; infuse into the bosom of that haughty girl a passion for some low, mean, unworthy being, so that she may reap a mortification as great as her present exultation and triumph."

Obediently, Cupid set to his task.  In the garden of Venus lay two fountains, one of sweet waters, the other of bitter.  Cupid filled two amber phials, one from each fountain and suspending them from the top of his quiver, hastened to the chamber of Psyche, finding her asleep.  He shed a few drops from the bitter fountain over her lips and although though the sight of her moved him almost to pity, touched her side with the point of his arrow.  At the touch she awoke and her eyes gazed upon the invisible Cupid which so enchanted him he became confused and pricked himself with his own arrow.  Helplessly in love, his only thought now was to repair the mischief he had done and he poured the balmy drops of joy over all her silken blonde ringlets.

Psyche, henceforth frowned upon by Venus, gained no benefit from her charms.  While all cast covetous eyes upon her and all spoke her praises, not prince, plebeian or peasant ever asked for her hand in marriage.  Her two sisters had become betrothed to princes but Psyche sat in solitude, feeling cursed by the beauty which had failed to awaken love.  The king and queen, thinking they had incurred the wrath of the gods turned for guidance to the oracle of Apollo who answered: “The virgin is destined for the bride of no mortal lover. Her future husband awaits her on the top of the mountain. He is a monster whom neither gods nor men can resist."

Her parents, distraught, abandoned themselves to grief but Psyche was fatalistic, saying "Why, my dear parents, do you now lament me? You should rather have grieved when the people showered upon me undeserved honors, and with one voice called me a Venus. I now perceive I am victim to that name.  I submit.  Lead me to that rock to which my unhappy fate has destined me."  Accordingly, amid the lamentations of all, she was taken to the peak of the mountain and there left alone.  When the tearful girl stood at the summit, the gentle Zephyr raised her from the earth and carried her on the breeze, bringing her to rest in a flowery dale where she laid down to sleep.  When she awoke, refreshed, she looked around and beheld nearby a grove of tall and stately trees.  Entering the forest, she discovered in its midst a fountain from which bubbled crystal-clear waters and nearby, a splendid palace, so magnificent she knew it the work not of mortal hands, but the retreat of some god.  Drawn by admiration and wonder, she ventured to enter the door.  Amazed at what she saw, she walked along a marble floor so polished it shimmered, golden pillars supported a vaulted roof, walls were enriched with carvings and paintings of fantastic beasts.  Everything upon which her eye fell delighted her.

Soon, although she saw no one, she heard a voice.  "Sovereign lady, all that you see is yours. We whose voices you hear are your servants and shall obey all your commands with utmost care.  Retire, should you please, to your chamber, recline upon your bed of down and when you see fit, repair to the bath.  Your supper awaits in the alcove”.  Psyche took her bath and seated herself in the alcove, whereupon a table appeared laden with extraordinary delicacies of food and nectarous wines.   While she ate, she heard the playing of lute and harp and the harmony of song.

That night she met he husband but he came only in the darkness, fleeing before the dawn, but his words and caresses were of love and inspired in her a like passion.  Often she would beg him to stay so she might behold him in the light but he refused, telling her never to attempt to see him, for no good would come of it and that he would rather have her love him as a man than adore him as a god.  This, Psyche accepted but the days grew long and lonely and she began to feel she was living in a gilded cage.  One night, when her husband came, she told him of her distress, her charms enough to coax from him his unwilling acquiescence that her sisters could visit.  Delighted, she summoned the obedient Zephyr who brought them to the mountain and in happiness, they embraced.

The splendor and celestial delights of Psyche’s palace astonished her sisters but also aroused their envy and they began to pepper her with questions about her husband and she told them he was a beautiful youth who spent his days hunting in the mountains.  Unconvinced, the soon drew from her that she had never seen him and they began to fill her mind with dark suspicions, recalling the Pythian oracle had declared her doomed to marry a direful and tremendous monster.  Psyche protested but they told her the folk living in the valley say the husband is a terrible and monstrous serpent, amusing himself while nourishing her with dainties that he may by and by devour her.  They told to one night to take with her a lamp and sharp blade so that when he slept she might light the lamp and see his true form.  If truly he is a monster they told her, "hesitate not and cut off its head".

Psyche tried to resist her sisters’ persuasions but knew she was curious and that night she took to bed a lamp and a long, sharp knife.  When he had fallen to sleep, silently she arose and lit her lamp, beholding but the most beautiful of the gods, his golden ringlets falling over his snowy neck, two dewy wings on his shoulders whiter than snow, with shining feathers like the tender blossoms of spring.  Entranced, as she moved her lamp better to see his face, a drop of hot oil fell on the shoulder of the god and startled, he opened his eyes and fixed them upon her.  They both were frozen for a few seconds, then suddenly and without a word, he spread his wings and flew out of the window.  Psyche, crying in despair, in vain endeavored to follow but fell from the window to the ground below.

Hearing her fall, Cupid for a moment paused in his flight and turned to her saying, "Oh faithless Psyche, is it thus you repay my love? After I disobeyed my mother's commands and made you my wife, will you think me a monster and would cut off my head?  Go, return to your sisters, who you trust more than me.  I punish you no more than to forever leave you for love cannot dwell with suspicion."  With those words, he flew off, leaving poor Psyche crying into the earth.  For hours she sobbed and then looked around, but her palace and gardens had vanished and she found herself in a field in the city where her sisters dwelt.  She repaired thither and told them her story at which, though pretending to grieve with her, the two evil sisters inwardly rejoiced for both thought as one: that Cupid might now choose one of them.  Both the next morning silently arose and snuck secretly to the mountain where each called upon Zephyr to bear them to his lord but leaping up, there was no Zephyr to carry them on the breeze and each fell down the precipice to their deaths.

The devastated Psyche meanwhile wandered.  Day and night, without food or rest, she searched for her husband and one evening saw in the distance a magnificent temple atop a lofty mountain and she felt her heart beat, wondering if perhaps there was Cupid.  She walked to the temple and there saw heaps of corn, some in loose ears and some in sheaves, mingled with ears of barley.  Scattered about, lay sickles and rakes, the instruments of harvest, without order, as if thrown carelessly from the weary reapers' hands in the sultry hours of the day.  This unseemly confusion disturbed the neat and tidy Psyche and she put herself to work, separating and sorting everything and putting all in its proper place, believing she ought to neglect none of the gods, but prove by her piety to prove she was worthy of their help.  The holy Ceres, whose temple it was, finding her so religiously employed, thus spoke to her, "Oh Psyche, truly your are worthy of our pity, though I cannot shield you from the frowns of Venus, I can teach you how best to allay her displeasure. Go, then, and voluntarily surrender yourself to your lady and sovereign, and try by modesty and submission to win her forgiveness, and perhaps her favor will restore you the husband you have lost."  Filled with both fear and hope, Psyche made her way to the temple of Venus.

Venus met her with anger.  "Most undutiful and faithless of servants," said she, "do you at last remember you have a mistress or have you come to see your sick husband, the one injured by the wound given him by his worthless wife?  You are so ill favored you can be worthy of your lover only by showing industry and diligence.  I shall put you to work".  She led Psyche to temple’s storehouse in which sat vast piles of wheat, barley, vetches, beans and lentils, the food for her birds.  “Separate these grains, put them all in sacks and have it done by night” she commanded, leaving her to the task.  Shocked, Psyche sat silent, moving not a finger.  While she despaired, Cupid ordered an ant, a native of the fields, to bring all ants from the anthill and they gathered on the piles.  Quickly and with the efficiency of their breed, they took grain by grain, making perfect parcels of each and when done, vanished from sight.  As twilight fell, Venus returned from a banquet of the gods and seeing the sacks neatly stacked, became enraged.  "This is no work of yours, wicked one, but his, whom to your own and his misfortune you have enticed."  So saying, she threw her a piece of black bread for her supper and stormed off.

Next morning Venus ordered Psyche to be called and said to her, "Behold yonder grove which stretches along the margin of the water.  There you will find sheep feeding without a shepherd, with golden-shining fleeces on their backs.  Go now, fetch me some of that precious wool gathered from every one of their fleeces."  Standing on the riverbank, wondering at the difficulty of her task, Psyche was about to cross but river god made the reeds speak, telling her "Oh maiden, tempt not the dangerous flood, nor venture among those rams for as long as the sun shines, they burn with a cruel rage to destroy mortals with their sharp horns or rude teeth.  But when the noontide sun has driven them to the shade, and the serene spirit of the flood has lulled them to rest, you may then cross in safety, and you will find the woolly gold sticking to the bushes and the trunks of the trees."  Psyche did as they said and returned with her arms full of the golden fleece but Venus was not pleased.  "Well I know it is by none of your own doings that you have succeeded I do not believe you are of use but I have another task for you.  Here, take this box and go your way to the infernal shades, and give this box to Proserpine and say, 'my mistress Venus desires you to send her a little of your beauty, for in tending her sick son she has lost some of her own'.  Be not too long on your errand, for I must paint myself with it to appear this evening at the circle of the gods."

Psyche now believed her own destruction was at hand and, with no wish to delay what was not to be avoided, dashed to the top of a high tower, preparing to cast herself headlong, thus to descend the shortest way to the shades below.  But then, a voice from the tower said to her, "Why, poor unlucky girl, do you design to put an end to your days in so dreadful a manner? And what cowardice makes you sink under this last danger when you have been so miraculously supported in all your former?"  Then the voice told her how by a certain cave she might reach the realms of Pluto, and how to avoid all the dangers of the road, to pass by Cerberus, the three-headed dog, and prevail on Charon, the ferryman, to take her across the black river and bring her back again. But the voice also cautioned, "When Proserpine has given you the box filled with her beauty, you must never once open or look into the box nor allow your curiosity to pry into the treasure of the beauty of the goddesses."

Encouraged, Psyche obeyed the advice and travelled safely to the kingdom of Pluto. Admitted to the palace of Proserpine, she delivered her message from Venus and soon, she was handed the box, shut and filled with the precious commodity. Then she returned the way she came, glad once more to be in the light of day.  But as she walked along the path, a longing desire overcame her, an urge to look into the box for, as she imagined, a touch of the divine beauty would make her more desired by Cupid so, delicately, she opened the box.  But in there was nothing of beauty but only an infernal and truly Stygian sleep which, being set free from its prison, took possession of her, and she fell in the road where she stood, plunged into a deep sleep, lying there without sense or motion.

But Cupid was now recovered and could no longer bear the absence of his beloved Psyche and slipping through a crack in the window, he flew to where Psyche lay.  He gathered up the sleep from her and closed it again in the box, waking her with the gentlest touch of one of his arrows. "Again," said he, "have you almost perished by the same curiosity.  But now perform exactly the task imposed on you by my mother, and I will take care of the rest."  Then Cupid, as swift as lightning, presented himself before Jupiter with his supplication.  Jupiter was impressed and so earnestly did he plead the cause of the lovers that he won the consent of Venus and on hearing this, sent Mercury to bring Psyche up to the heavenly assembly, and when she arrived, he handed her a goblet ambrosia saying, "Drink this, Psyche, and be immortal; nor shall Cupid ever break away from the knot in which he is tied, but these nuptials shall be perpetual."  Thus Psyche became at last united to Cupid, and in time, born to them was a daughter whose name was Pleasure.

Wedding Banquet of Cupid and Psyche (circa 1517) by Raphael (1483–1520).

The story of Cupid and the OCD Psyche is told by the Roman writer Apuleius (circa 124-circa 170) in three chapters in his rather risqué picaresque novel, The Metamorphoses of Apuleius (which Saint Augustine dubbed Asinus aureus (The Golden Ass (by which it’s today known)).  The Golden Ass is notable as the only full-length work of fiction in Classical Latin to have survived in its entirety and is a work with aspects which would be regarded as novel centuries later, including fantastical imagery, passages like fairy tales and elements which would now be called magic realism.  Like many modern fairy tales, there is a moral to the story and for Apuleius it was that it is love which makes to soul immortal and there was no need for subtlety, Cupid the son of the goddess of desire and Psyche's name originally meant soul.

With the re-discovery (and some re-invention) of much of antiquity during the Renaissance, the story gained much popularity and attracted the interest of artists and from Raphael’s (Raffaello Sanzio da Urbino, 1483–1520) studio came the best known evocation.  One of the scenes is the wedding feast, painted in the form of a hanging tapestry.  Psyche’s guest list was a roll-call of the gods, Ganymede, Apollo, Bacchus and Jupiter are all at the table, the Graces and the Hours in attendance.  The artists (for some the work was executed by professional painters under Raphael’s guidance) do have some fun, very much in the spirit of Apuleius for above the flying Mercury sits, artfully arranged, a suggestive conjunction of certain vegetables and fruits.

The Wedding Feast of Cupid and Psyche (1532) by Giulio Romano.

The romance of Cupid and Psyche drew other artists including the Italian Giulio Romano (Giulio Pippi, circa 1499-1546), a student of Raphael whose influence permeates.  While not highly regarded by critics and better remembered as an architect, Romano is of note because he was among the earliest of the artists whose work can be called Mannerist and certainly his wedding feast painting includes the mythological, a staged and theatrical setting, eroticism and an unusual sense of perspective; all characteristic of Mannerist art although he remained entirely naturalistic in the callipygian rendering of Psyche’s buttocks.

In Shakespeare's late drama The Winter's Tale there’s an allusion to Romano as “that rare Italian master” but despite the bard’s apparent admiration, historians of art treat him as little more than a footnote; the shadow Raphael cast was long.  Some critics seem determined to devalue his work, the Catholic Encyclopaedia (1913) noting it was “prolific and workmanlike, always competent…” but with “…no originality; as a painter, he is merely a temperament, a prodigious worker. His manual dexterity is unaccompanied by any greatness of conception or high moral principle.  His lively but superficial fancy, incapable of deep emotion, of religious feeling, or even of observation, attracted him to neutral subjects, to mythological paintings, and imaginary scenes from the world of fable. Therein under the cloak of humanism, he gave expression to a sensualism rather libertine than poetical, an epicureanism unredeemed by any elevated or noble quality.  It is this which wins for Giulio his distinctive place in art.  His conception of form was never quite original; it was always a clever and bookish compromise between Raphael and Michelangelo.  His sense of color grows ever louder and uglier, his ideas are void of finesse, whatever brilliancy they show is second-hand. His single distinctive characteristic is the doubtful ease with which he played with the commonplaces of pagandom.  In this respect at least, paintings like those of the Hall of Psyche (1532) are historical landmarks.  It is the first time that an appeal is made to the senses with all the brutal frankness of a modern work”. 

Damning with faint praise perhaps.  Grudgingly, the editors did concede that despite being “…distinguished by such characteristics and marked by such defects, Romano occupies nevertheless an important place in the history of art. More than any other, he aided in propagating the pseudo-classical, half-pagan style of art so fashionable during the seventeenth century. It’s mainly through his influence that after the year 1600 we find so few religious painters in Europe”.

One could hardly expect The Catholic Encyclopedia (sub-titled An International work of reference on the constitution, doctrine, discipline and history of the Catholic Church), to find much worthy in a mannerist (or perhaps anything modern).  Mannerism, novel in some ways as it was, was rarely original in form or content.  It was a reaction against the perceived perfection of the neo-classicism of the High Renaissance and artists from Romano on were drawn to Greek mythology, characters like Psyche and Echo able simply and unambiguously to represent the psychological problems muddied by Christian theology.

Appellate

Appellate (pronounced uh-pel-it)

(1) Of or pertaining to that which can be reviewed by a power or authority vested with the necessary jurisdiction.

(2) A court, tribunal or other body having the power or authority to review and decide appeals made against decisions issued by subordinate individuals or institutions; that which legally can be appealed to.

1726: From the Classical Latin appellātus (called upon, summoned), past participle of appellāre (to appeal) and perfect passive participle of appellō (address as, call by name), the construct being ad (to, towards) +‎ pellō (push; impress).  The noun appellant (one who appeals from a lower to a higher court) dates from the 1610s, from the Anglo-French & French appellant, noun use of present participle of the French appeller (make an appeal), from the Old French apeler, from the Latin appellare (appeal to).  Appellate is an adjective and appellant is a noun; the noun plural is appellants.

Unrelated to the hierarchy of courts, there are words used formal grammar and linguistics including the noun appellative (a common noun; an epithet), the adjective appellative (of or pertaining to an appellative noun or common noun; of or pertaining to ascribing names), the noun appellativeness (the state or quality of being appellative), the adverb appellatively (after the manner of appellative nouns; so as to express whole classes or species and the noun appellativization (the process of a proper name becoming a common noun (such as hoover; kleenex; google et al)).  The antonym is proprialization (White House, Grand Canyon et al).  The noun appellation (designation, name given to a person, thing, or class) entered English in the mid-fifteenth century, from the twelfth century Old French apelacion (name, denomination), from the Latin appellationem (nominative appellatio) (an addressing, accosting; an appeal; a name, title), the noun of action from the past-participle stem of appellare (address, appeal to, name).  An appellation is a descriptive and specific term (Joan of Arc’s appellation was Arc; John the Baptist's was Baptist while those who were most associated with the political discussions which culminated in the formation of the United States of America (USA) are given the appellation “Founding Fathers”.  An appellation differs thus from an official or honorary title such as earl, bishop, general, professor et al but technically, these too are appellations.  The adjective appellative dates from the early fifteenth century (of a noun, serving to name or mark out, common (as opposed to proper))," from the Latin appellativus, from appellat-, past-participle stem of appellare (address, name, appeal to).  As a noun, it was in use by at least the 1590s in the sense of “a common” and by the 1630s as a “title or descriptive name”.

Courts of appeal

Appellate courts, usually styled as courts of appeal, are those vested with the jurisdiction to an appeal from a subordinate court within the same hierarchy.  In Australia, as a general principle, the court system exists in three layers (1) a trial court, (2) an intermediate appellate court and (3) a final court of appeal although variations exist and appeals from lower courts are not always of right; in many cases an application for leave to appeal can be declined.  Details of appellate jurisdiction in English courts appear in Sir William Blackstone's (1723–1780) Commentaries on the Laws of England (1765–1769), a matrix which has since been a thing of repeated change.  The hierarchical nature of the appellate food-chain is of significance because ultimately it's the final stage which is decisive: A case might for example be heard by eleven eminent judges, one in the supreme court at first instance, three on a court of appeal and seven at a high court so if the first appeal is decided 3-0 and the final 4-3 then one party can have enjoyed the concurrence of 7 of the 11 yet still lose.  That's how the appellate system works.

The Australian court systems are now unitary which means that, depending on the law(s) involved, the avenue of appeal lies to a state, territory or Commonwealth court, appeals to the Privy Council (actually the Judicial Committee of the Privy Council (JCPC)) in London sundered for Commonwealth matters in 1968 and for those involving the states in 1986 by the Australia Acts although there is one historic relic.  Section 74 of the constitution provides for an appeal from the High Court of Australia (HCA) to the the Privy Council if the court issues a certificate that it is appropriate for the Privy Council to determine an inter se (a case concerning constitutional relations between the Commonwealth and one or more states or between states) matter.  The only such certificate was issued in 1912 and in 1985, the High Court judges (unanimously) observed that the power to grant such a certificate “…has long since been spent… and is obsolete".  However, it’s there with full legal force so, in the strict constitutional sense, an appeal from the HCA to the JCPC, however unlikely, remains possible.

In the matter of Grand Theft Auto (GTA5): Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

Truly a martyr, Lindsay Lohan hasn't had much luck in appellate courts.  In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey (b 1951; associate judge of New York Court of Appeals from 2015-2021) wrote in his ruling.  Ms Lohan’s lawyers did not seek leave to appeal.

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

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

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

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

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

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

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

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

Appellate courts, the hair police and black letter law

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

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

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

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

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

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