International Catholic University


Political Philosophy

Lesson 8. Justice and Rights

8.1. On the right as justice

The most important virtue for the ancients is justice; and justice concerns the proper ordering of the self and the community. The very term "right" designates not a subjective claim to something as it does for the moderns, but rather an objective relationship between people. Right is said to be the "object" of justice (ST II-II 57.1). It is the equality or adjustment made between two people or groups. It is objective insofar as it is a matter of rational determination. Justice is one of the four cardinal virtues. It is defined as "the perpetual and constant will to render to each one his right" (ST II-II 58.1). Justice is always towards another. So it is with reference back to the ancients that a Brownson or a Solzhenitsyn criticize the modern man for always taking his own rights and neglecting to speak about duty -- that the modern first considers his own subjective claim or want and thereby neglects what is owed to the community or another, which is the duty.

8.2. Two types: commutative and distributive

Following Aristotle, Aquinas distinuishes between two types of justice -- commutative and distributive (ST II-II 61.1). Each type involves a distinct measure of equality. Commutative justice is the right order between two individuals in matters of exchange. Its measure is strict or simple equality. Distributive justice is the relationship of the individual to the community, or part to whole. Distributive justice involves a proportionate equality. It involves a sense of merit -- those who more deserving should receive a greater share of benefit, honor, or burden from the community. The following diagram from Josef Pieper helps us to visualize this distinction.

Chart 8.1 Pieper on Types of Justice

The Limits of Justice

". . . though the commandment of justice is not enough when charity has not taken firm root among them."

A Schematic Representation of the Basic Forms of Justice (cf. pp. 73-75)

(diagram)

8.3. Aristotle on contentious goods

The question of distributive justice returns us to the central political question -- who should rule or who should receive the honors of the city to lead it? See Aristotle Book III chapter 9. The democrats identify justice with simple equality. Merit has no place in the city because all are equal. Each should receive equal benefits and burdens. Justice is simple equality. Oligarchs (and aristocrats) on the other hand identify justice with proportionate equality such that those who have unequal shares should receive unequal (proportionately equal) benefits. Thus begins the contentious inquiry into political justice. Modern political philosophy takes up the side of the democrats in a search for equality as simple equality. It may eliminate if possible a consideration of honor from politics and look instead to the material benefits or rights of private citizenship which are equally shared by all.

8.4. Modern: Right as a subjective claim

The moral and political landscape of America today is dominated by a single feature: the discourse of rights. What began as a matter of carefully delimited political prerogatives and protections in Anglo-American jurisprudence has become a wild free for all of personal and collective claims and counter-claims. Serious matters involving, e.g., questions of life and death or fair participation in the political order as well as frivolous matters such as the legitimation of any felt need, all moral and political questions have been enveloped in a disputation concerning rights. The proliferation of rights claims is a concern not simply because of the sheer number of things to which people now claim rights, but especially because of the unmanageable conflicts between those claims. As is known too well, the right to life of the unborn is in conflict with the right to choose of the woman; the right to hire and fire is in conflict with the right to equal opportunity for minorities; the right of citizens to safety in a drug free environment is in conflict with the right to privacy of workers; and so forth and so on. In the United States the courts are swamped with conflicts which they must adjudicate. And in personal life, the claims of rights are frequently used to justify any course of action that an individual has chosen, at least if accompanied with the provisio that it does not harm anyone. A subjectivist situation ethic has taken to itself the discourse of rights to conceal its confusion and disorder.

All citizens, including those who are Christian, cannot help but be perplexed by this state of affairs. There is the obvious benefit of employing rights language. It is needed to protect the claims of religion from unwarranted state intrusion, to protect vulnerable members of society, and in general to influence public policy. On the other hand, the rights discourse carries with it many assumptions about human nature and the moral order which run contrary to the very things to be protected; assumptions involving unbounded freedom or an individualist conception of political order.(5)

In light of this confusion in theory and practice in politics and ethics today, there is a pressing need for a sound philosophy of human rights. In addition to the careful work of jurisprudence and political science in analysis of rights claims and the strategic planning for political action, there is the need for an ultimate rationale or account of the nature of and foundation for rights. This would provide us with a point of reference or orientation for assessing the spirit and in some way the letter of rights claims. We must discuss the question whether a doctrine of rights should be derived from a thesis concerning the autonomy of the human being from any constraint such as a divine or natural order, or whether human rights are to be construed precisely as an element or part of an objective moral order.

There is scholarly dispute over the historical origin of moral and political discourse involving rights. Richard Tuck, for example, traces the origin back to the late medieval ages and the theology of Jean Gerson, who in a work published in 1402 first assimilated the term "ius", that is justice or right, to the term "libertas" or freedom.(6) As Tuck explains, this is one of the first appearances of the idea of an active right, a right that does not have a strict correlative duty, thereby implying that right is a dominion over something to use as one pleases. Human freedom becomes the fundamental moral fact, not virtue, or divine command. The development of such a notion wound its way through late medieval nominalism and became the main theme of Hugo Grotius, John Seldon, and finally to Thomas Hobbes. Hobbes' work, especially Leviathan, is usually the marked as the turning point from the ancient natural right or natural law to the modern account of natural rights.(7)

Chart 8.2 Hobbes on Rights

Hobbes defines "right of nature" (jus naturale) as "the liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own nature." Hobbes clearly distinguishes right (ius) from law (lex) -- "right, consisteth in liberty to do, or forbeare; whereas Law, determineth, and bindeth to one them; so that Law, and Right, differ as much, as Obligation, and Liberty." For Hobbes, right, i.e., liberty, clearly takes precedence over law, i.e., obligation. The fundamental right or liberty of the self is unbounded or unlimited by anything; by the fundamental right of preservation, each man has a right to everything and anything done in the pursuit of preservation is without blame.

Hobbes most articulately challenged the fundamental presuppositions of the Thomistic synthesis of Biblical Theology and Aristotelian Philosophy such as the sociability of man and the possibility of a common good, the existence of a highest good in virtue and contemplation, and the natural law derived from such human teleology. Hobbes, rather, began with a state of nature as a state of war, the futility of seeking a good higher than the pleasant preservation of the individual, i.e., comfortable self-preservation, and a natural law clearly derivative from more fundamental rights of nature such as the right to self-preservation. Following the early lead of Gerson, Hobbes defines "right of nature" (jus naturale) as "the liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own nature."(8) Hobbes clearly distinguishes right (ius) from law (lex) - "right, consisteth in liberty to do, or forbeare; whereas Law, determineth, and bindeth to one them; so that Law, and Right, differ as much, as Obligation, and Liberty." For Hobbes, right, i.e., liberty, clearly takes precedent over law, i.e., obligation. The fundamental right or liberty of the self is unbounded or unlimited by anything; by the fundamental right of preservation, each man has a right to everything and anything done in the pursuit of preservation is without blame. The intolerable conflicts between individuals however amounts to a state of war. It is reasonable, therefore, to limit ones claim to things for the sake of self-protection. Morality exists by way of contract. Morality is a rational deduction of moral rules from the right of self- preservation.(9) Hobbes defense of individual rights required the existence of an absolute power in society to keep all potential wrongdoers in a state of awe such that they would obey the law. Hobbes' account was shocking in so many ways, not the least of which was its implicit anti-theistic philosophy, that it was frequently decried and banned. The direct contrast between Hobbes and the biblical and philosophical accounts of moral and political order would in many ways be the easiest approach to take to the philosophical questions about rights.

However, the philosophy of John Locke presents a more instructive case. Locke transformed the Hobbesian philosophy into a more palatable and balanced philosophy of natural rights. It is in the Lockean form that many Americans came to know about rights. And Locke's philosophy contains a fundamental ambiguity that pertains to the alternatives mentioned above. That is, the very tension over the autonomy of the person and the workmanship of God is played out in the writing and interpretation of Locke.

Locke sought to find a solution to the problem of politics that would restore peace to a country divided by wars of religion. The tolerance of religious belief required, in his mind, the lowering of the goal and mission of the temporal order, away from the inculcation of virtue and the defense of the faith to the protection of the temporal welfare of its citizens, that is to the protection of the rights to life, liberty and property of its citizens.(10) By removing the matter of religious contention from the civil sphere Locke hoped to quell the disturbances inflicted upon Europe because of intolerance. Hobbes, however, removed contentious matters by making the sovereign absolute over the determination of the beliefs of its citizens. It was Locke who overcame the inconsistencies in this account, and sought to place structural and formal limits upon the sovereign political power and to bind the sovereign to the respect of rights to life, liberty and property. The division of powers, taxation with representation, limited prerogatives of the state power balanced by a "right to revolution" are all part of the Lockean system. For Hobbes rights are fundamental moral claims against others; Locke adds to this the claim of the individual against the state, at least when a "long train abuses" are perceived by a majority and rouse it to act. Locke's more moderate and reasonable account of human rights has appealed to generation of political statesmen and thinkers. John C. Murray, in discussing the First Amendment of the U.S. Constitution, calls the concepts "articles of peace," reasonable devices learned through experience, to limit government. He rejects certain "theologies of the First amendment," which posit, for example, the ultimate subjectivity of religious truth.(11) Locke has been interpreted along both lines. However, the same seed of radical autonomy as the basis for human rights remains in Locke.

Like Hobbes, Locke derives the principles of limited government from a hypothetical state of nature.(12) This original state of nature is said to be a state of "perfect freedom." By freedom Locke here means no more than an absence of restraint. Locke mentions in the same passage with the perfect freedom, the bounds of a natural law. This is to distinguish "liberty" from "license." The natural law which initially guides men in the state of nature is to refrain from harm: "The State of Nature has a Law of Nature to govern it, which obliges every one; And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." The restraint demanded by natural law derives from an additional characteristic of the state of nature: in the state of nature men are equal in addition to being free.(13) Locke makes clear that equality means equal jurisdiction, or the absence of subordination and subjection. The basis for this mutual respect and recognition is the fundamental problem, since it is the basis for natural law.

The key difficulty in interpreting the philosophy of John Locke pertains to the foundation of natural rights and the rationale for mutual restraint. Locke in fact gives a two-fold rationale and foundation. On the one hand, he speaks of man as God's workmanship, and from this axiom derives the right to life liberty and property as essential to the divine moral order; on other occasions he simply appeals to the primacy of self-preservation and unfolds from radical autonomy the list of rights and the self-interested basis for mutual respect.

In the first model, the basis for equal respect is divine workmanship, and the order of creation. Locke argues that all creatures are equal under God and occupy the same rank or status as "creature."(14) Thus, no one can assume to take the position of God and rule over others. This argument from the order of creation reflects a pre-modern understanding of equality. Men are neither beasts nor gods, but occupy equally a ground mid-way between.(15) It is neither appropriate to act as a god nor to treat others as beasts or inferior creatures. Locke explicitly uses this pre-modern image. In light of this order of creation, man can make no claim to absolute dominion over his fellow creature. Mutual respect depends upon the recognition of one's status as creature, along with others, before the Creator. That is, man cannot claim the type of superiority that would authorize the destruction or arbitrary use of another, and rights protect this status.

But Locke says that the grasp of "natural law" does not depend on divine revelation nor does it depend on knowledge of God's promulgated law and sanctions. This content can be appreciated independently of the workmanship model. For to deny the mutuality of equal right is to propel oneself into a state of war with others. And by such a declaration one has "exposed his Life to the others Power to be taken away by him" (2.16). To put oneself in such an insecure state is most unreasonable and dangerous. One is open to being treated like a noxious beast.(16) It is more safe, more reasonable to acknowledge the equality of rights. Thus, mere self-interest would counsel mutuality and restraint. Locke refers to the law of nature as simply the law of reason and common equity (2.8): the law of nature is the reasonable restraint of common equity which will establish mutual security (2.8). It is discovered through the person's own desire for safety and security. The basis for restraint is fear of harm and self-interest. According to this model of rights, selfish interest, comfortable preservation, is the basis for my claims. Enlightened self-interest leads me to recognize the equal right of others to their life, liberty and property.(17)

The legacy of Locke is therefore ambivalent. The advocate of limited government, and an apparent friend of the theistic tradition, Locke nevertheless underwrote a model of radical human autonomy in which freedom dominates the moral order. Locke's philosophy of human rights is derived from a subjectivist account of the good; it lowers the goal of the state to a supposedly neutral position; it imposes a minimal obligation of non-harm; and ultimately does encourage self-interest. The minimal obligations embodied in civil law become the extent of morality; the wide sphere of private life must come to occupy the bulk of human energies. With Locke, such freedom was aimed at unlimited acquisition of property and the self found its affirmation in labor and the "work ethic," or what Leo Strauss called "the joyless quest for joy." But such terms as equal freedom and mutual respect came to be transformed under the inspiration of Rousseau and Kant to mean much more than civic liberty and protection of private property. In contemporary American jurisprudence they have come to promote the existence of what University of Illinois Law Professor Gerard Bradley has recently referred to as the "erotic self."(18)

8.5. Maritain on rights

The philosophy of Jacques Maritain is very important in the development of Thomistic social and political philosophy. Maritain's work has influenced the writings of both Pope Paul VI and John Paul II. Maritain was a man of the world, who actively participated in the United Nations drafting of a Charter of Human Rights. He was very interested in incorporating a sound philosophy of human rights into Christian social doctrine. Maritain insisted that we must face the difference between two philosophies of rights which must be traced back to fundamental differences in philosophy(19) of God. He distinguishes the underlying philosophies as anthropocentric humanism and theocentric humanism: "the first kind of humanism recognizes that God is the center of man; it implies the Christian conception of man, sinner and redeemed, and the Christian conception of grace and freedom. The second kind of humanism believes that man himself is the center of man and implies a naturalistic conception of man and(20) of freedom."(21) According to the philosophy of theocentric humanism, human rights rest upon a natural and divine order, according to which human beings possess a dignity in virtue of their nature and destiny as creatures before God. The rights are limited in scope and are designed to assist the person in attaining their full stature as human beings. According to anthropocentric humanism, rights are based upon "the claim that man is subject to no law other than that of his will and freedom" and as a result have become "infinite, escaping every objective measure, denying every limitation imposed upon the claims of the ego."(22) In his philosophy, Maritain sought to rescue the notion of human rights from the philosophical errors in which it has been put forward.

Maritain sets himself to the larger task of harmonizing Christianity and the democratic ideal, such as that of human rights. The tragedy of the modern age finds "the motivating forces in modern democracies repudiating the Gospel and Christianity in the name of human liberty, while motivating forces in the Christian social strata were combatting the democratic aspirations in the name of religion." It is the burden of Christianity and Democracy to have "Christian inspiration and the democratic inspiration recognize each other and become reconciled." Maritain believes that modern democracy transcends aristocracy and monarchy, somehow preserving the best of both. Maritain did not envision the degree to which "democratic inspiration" would far outstrip "evangelical inspiration," thereby creating forms of conflict. Consumerism and gay rights can both claim "democratic inspiration," whereas their "evangelical inspiration" is dubious. Still, Maritain's praise of democracy is always qualified and critical as he wishes Christianity to serve as a check on the base tendencies of the democratic impulse which culminate in "bourgeois liberalism," a form of regime brought under judgment by the world war and its aftermath.

Chart 8.3 Maritain on Rights

According to Maritain human rights flow from the divine order reflected in human nature; it is the "right possessed by God to see the order of His Wisdom in beings respected, obeyed and loved by every intelligence."

Maritain believes that Christianity is actually the historical condition necessary for the emergence of a philosophy of human rights. The full historical adequacy of this claim is surely questionable; yet for its part it is a great and salutary truth. Human dignity, the value of labor, the rights of conscience, the relativity of earthly authority are but a few of the truths elaborated by Maritain as due to Christian inspiration. The problem is that "democratic impulse" is not a single force. As Maritain knows, its origins also lie in ancient republicanism and in the modern turn to mastery of nature and worldly satisfaction. Both movements bear some antagonism towards Christianity, even if the latter movement often masks itself in Christian phraseology. Maritain hopes to purge the democratic movement of its errors, and rest it on a Christian footing. But perhaps the modern project is now at long last purging itself of its Christian trappings. Maritain's "true democracy" would now appear as counter-cultural and perhaps anti-democratic. For example, he equates the "pursuit of happiness" with the cultivation of the mind and self-sacrificial love. More generally, Maritain identifies freedom with moral mastery and virtue. Maritain is thus truly pre-modern in outlook. Those democratic theories proposing a "thin theory of the good" would not find in Maritain the true essence of democracy. Although the Christian theorist may appropriate the terms of democracy, and even show origins in Christianity, the fact that those terms have developed a life of their own make the prospects for reconciling Christianity and contemporary democratic ethos problematic in the extreme. Maritain has high hopes that Christians may be on the vanguard of democratic reform; but we cannot now fail to see that Christians may be called to resist its destructive excesses, as represented by a Dworkin or a Richards. Christianity and Democracy outlines the spirit of Maritain's task, Rights of Man and Natural Law outlines the basic concepts of his political philosophy. Maritain gives a masterful and lucid account of human rights, beginning with the philosophical notion of person as a being with intellect and will in virtue of which he is oriented towards the realm of being, truth and goodness. Therein resides human dignity: the person possesses some measure of wholeness and independence, and cannot live as a mere part or in servility. The freedom of human beings is intimately connected to truth and objective moral good.(23) Moreover, the person is social by nature in function of both his needs and perfections, that is, in virtue of human indigence and human generosity. The personalist basis for politics demands a communal correlate; the good of persons is a communion in the good life. The individualism of modern philosophies of human rights must be challenged by a more adequate appreciation of the social nature of the person. Maritain uses the dignity of the person to resist all forms of totalitarianism; man is more than a part of a temporal society. The person as such aspires to a supra-temporal good. Maritain often cites the words of Thomas Aquinas, "man is not ordered to political society by reason of himself as a whole and by reason of all that is in him." Human rights protect this human dignity against the onslaught of totalitarian power. But the liberal interpretation of rights also is premised upon the denial of transcendence; thus we are faced with the question whether a project such as Professor Richards' is leading to the enhancement or the ultimate degradation of the human person.

The philosophy of human rights must address the issue of the human good and human perfection. According to Maritain human rights flow from the divine order reflected in human nature; it is the "right possessed by God to see the order of His Wisdom in beings respected, obeyed and loved by every intelligence." He does not give a Kantian type account based upon human autonomy. From a definite conception of the good life Maritain derives human rights. He defines the key modern notion of freedom in terms of virtue, which he calls liberty of expansion: it is "the flowering of moral and rational life, and of those interior activities which are the intellectual and moral virtues." But the modern philosophy of human rights "believes in liberty without mastery of self or moral responsibility."(24) For Maritain, therefore, the essential political task, "a task of civilization and culture." The rights of man follow from this goal -- they represent the conditions necessary for the full flowering of human perfection in the multitude. Maritain expounds upon personal, civic, and economic rights in light of this concrete human good. For the precise enumeration one may consult The Rights of Man and Natural Law, including a resume of rights provided at its end.(25) They protect and provide the material and legal conditions for human perfection. Suffice it to say that Maritain expects the slow but steady emancipation of man from the conditions that thwart his aspirations to truth and virtue. Liberation is for the sake of human perfection, not an end in itself, nor a freedom without terminus or measure. This account of freedom would appear to preserve what is best in a theory of rights by joining it to a notion of virtue. Rights are not a claim of subjectivity or a liberty free of obligation, but conditions for human excellence challenging political prudence in its task to achieve a common good and a decent human life for all.

Conclusion: The Challenge of Rights Discourse

There is an obvious need for the understanding of and the use of rights discourse today. It is necessary for the very protection of the claims of religion and religious activity in a secular state. The original impetus of Locke, freedom for and toleration of religious belief. Rights language helps to explain the advocacy for the vulnerable members of society which Christian conscience demands. Thus to influence pubic policy in a salutary way, rights discourse is inevitable. But the basis for and purpose of human rights discourse must be clearly understand if we are to avoid the confusion and equivocations of the present day. We must engage in a serious reading of modern philosophers such as Hobbes and Locke; in addition, the contemporary developments of Rawls, Dworkin and Richards must be squarely faced; finally, Christian thinkers like Maritain and John Paul II have opened up horizons for a sound philosophy of human rights.(26)

The use of rights discourse is fraught with difficulties, not the least of which is sheer equivocation when engaged in discourse with the dominant liberal culture. The philosophy of human rights underlying such accounts, the radical autonomy of the human person, must be challenged and redefined. A sound philosophy of rights must make it clear that freedom is not an absolute, that rights are imbedded in an objective moral order which is accessible by reason (natural law) and revelation (divine law) and finally that rights are correlated with duties to the community, to others, and ultimately to God.

8.6. Simon on equality

Simon begins his account of democratic equality with Maritain's idea of the notion of equality as a common human nature, rejecting the nominalist bias of doctrines of inequality. He excludes the doctrine that human kind can be divided essentially by race into higher and lower. Equality is grounded in potential for community life. He then turns the account more directly to the problem of equality and its tensions. The ideal of equality deriving from common humanity can be applied in a strict fashion and in the fashion of a tendency. For example, all men are covered by the norm prohibiting the killing of innocent life. Race, social standing, wealth and so forth are irrelevant considerations here. Any excepting conditions are made on principle, like self--defense, not on an arbitrary basis. Simon, writing in 1950, prophetically mentions abortion and euthanasia as great violations of the ideal of equality and common humanity. Similarly, fair exchange demands a strict equality, for again race, wealth and the like are not relevant factors. But in other demands for equal consideration, limitations must be acknowledged. Hence in some cases equality must be adopted as a "progressive tendency" to greater realization. The two examples considered are health care and education. All human beings ought to be protected from disease and death. The desire for life is equal in all segments of society, Simon says. On this point Simon claims that our conscience has improved. But it does not follow, he says, that it is in our power to provide equal protection to all, nor is it "necessarily iniquitous that it [society] fails to do so." But society must be on a "track" leading to equal protection for all. This is "the equalitarian dynamism contained in the unity of human nature." But this dynamism he says is often lawfully restricted and delayed. Why? Its implementation may require "an enormously increased weight of bureaucratic organization [and a loss] of a considerable amount of liberty." He gives a similar account of education; society must be on track to greater opportunity, but the recognition of different abilities and conditions, and the problem of freedom and taxes may restrict its implementation.

Despite these "lawful restrictions and delays" in the realization of equality, Simon insists that democratic theory and practice be gauged above all in terms of progress in equality. Conservativism, he warns, simply seeks to maintain the advantages of small minorities. At best, Simon would allow for a form of "fiscal conservativism" from what he has said about lawful restrictions. Does it follow then that democratic theory and practice must posit as a regulative ideal the eventual suppression of all advantage and privilege with the inequality that accompany them? That is, has Simon reduced the "conservative" objection to that of means and efficiency? Could greater power and technical prowess enhance progress in equality and pare down the conservative objections? Should democratic regimes be ever in search of greater power and take of advantage of any possible advance in equality?

Simon argues very strenuously against this conclusion on the basis of the principle of autonomy or subsidiarity. Simon entertains the following proposition: "inequality should never be determined by any consideration foreign to individual merit." Simon says that this well sounding vague notion has the "character of radicalism made inconspicuous." Yet it would seem one is driven to this point by a certain logic in the equalitarian dynamism, it would seem. For legal equality and open opportunity can neutralize aristocratic privilege. But then education, position and other factors such as wealth can still leave great gaps in equal opportunity. Strict equal opportunity must eradicate "all privilege or handicap attaching to hazard of birth." If so, the right of inheritance and any family influence would stand in the way of equality. But the elimination of the family is a utopian scheme that would subject men to a far greater arbitariness; hence Simon's fear of "radicalism made inconspicuous" in the claim of equality.

Simon backs off to a larger context in order to resolve the antinomy. The problem is biased by "an individualistic preconception." The family and social being is part of the good life desired for each citizen. Thus, "some of the things for which opportunity is sought are of such a nature as to balance and restrict the principle of equal opportunity." Equal opportunity is carried too far when "it threatens to dissolve the small communities from which men derive their best energies in the hard accomplishments of daily life." From the perspective of human flourishing, the principle of equality is limited by more than technical efficiency, but also by a positive notion of the good life.

Simon concludes with three principles pertaining to equal opportunity, thus gathering the various elements in tension: a democratic regime must strive for legal equality; it must take positive measures to avoid factual exclusion from any function, e.g., financial help for education; it must allow the greatest possible autonomy to prevail. The first principle reflects the strict equality of common humanity; the second principle reflects the equalitarian dynamism of a democratic regime; the third principle, Simon says, makes the principle of equal opportunity less absolute; without it, equal opportunity would be "a first class factor of atomization and a formidable wrecker of democratic communities."


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