This article was published in the Summer 1995 issue of Formulations
by the Free Nation Foundation
 
Dialogue
 
Inalienable Rights and Moral Foundations
 
by Maribel Montgomery and Roderick T. Long
 

 (to table of contents of FNF archives)

(to Roderick Long's reply)

Maribel Montgomery: This letter is in reaction to Roderick Long's article "Slavery Contracts and Inalienable Rights: A Formulation" (Formulations, Vol. II, No. 2 (Winter 1994-95), pp. 10-11). At the outset, let me confess that I have not read Robert Nozick's Anarchy, State, and Utopia, so I have no preconception from him about the permissibility or enforceability of slave contracts.

I find Dr. Long's Supply-Side Virtue Ethics interesting, but I also find it confusing to the issue at hand. I don't think, when I take into account all the varieties of animals and conceptions of God that I can conjure up, that it is particularly helpful to say that human beings are (or ought to be) halfway between. I do, however, believe that cooperation rather than violence is the most effective and satisfying mode of interaction among humans, and therefore ought to be practised to the fullest extent. The task of libertarians, it seems to me, is to persuade those prone to violence to learn to cooperate instead. The way to teach them is to document the superior results of cooperation through evolutionary and social history, and to contrast the desirability of the probable outcomes of present and future situations via cooperative rather than violent means. I agree with Dr. Long, therefore, that "[a] maximally human life will give central place to the distinctively human faculty of reason ...."

I am assuming that he is referring, as I am, to the definition of reason as "the power of intelligent and dispassionate thought, or of conduct influenced by such thought" (quoted from item 7b of the second edition, unabridged, of The Random House Dictionary of the English Language, 1987). A physically strong person may think in terms of, and practice, violence against another as an effective means of getting whatever he wants from the other in the immediate or short term, but the reasonable person will recognize that violent action invites revenge and that he will thereby jeopardize the satisfaction of his long-term goals. Conflict resolution via creative cooperative actions insures greater satisfaction of every kind of need and want in the widest and longest-term perspective. It is the human capacity for long-term planning by way of symbolic thought that gives us a potential advantage over other animal species. However, it is behavior that is the critical element in the attainment of goals; what one does is all that another can respond to; the intention or internal thought process does not count after energy passes into actual behavior. It is only if a conduct has been influenced by the preceding thought that either one or both may be judged to be reasonable or not, and the judgment lies in knowledge of the goal and the effectiveness of the thought and/or action to attain it.

I think that the distinction between thought and action, and the overriding importance of the latter, is critical to a resolution of the "sticky rights" issue that Dr. Long raises. "Liberty" refers to the freedom to exhibit some behavior or the freedom from being coerced into exhibiting some behavior. There is no need to specify a "right" to free thought because the process is internal and therefore truly inalienable. One can think anything (s)he wants to without affecting anyone else. But, since any behavior of one person can affect another, the limits of any particular person's liberty depend on acceptance of a corresponding obligation by another not to interfere. It is to specify behavioral limits that legal rights and obligations have had to be established. Incidentally, one hears little from libertarians about obligations.

Our uniquely human language, oral or written, is a type of behavior, exhibited externally, that can affect others; therefore legal rights and obligations concerning this have had to be determined. The U. S. Constitution states a general right of free speech of the citizens, but this is too general to resolve a dispute among any individuals over their rights and obligations concerning the use of language. To be enforceable, a contract must specify a behavior, and the conditions under which it is to be carried out, including a particular time frame. The limits to free speech depend on the effect it may have on listeners, and/or the likelihood that the language will be translated into a more harmful direct behavior. For example, I can tolerate a person's statement that (s)he would like to kill me if I am confident that no more direct action in that direction will follow. But if this is a clear threat to future action I must prepare to protect myself. Slanderous and false statements about me are special cases that can influence others to harm me even if not followed through by any more direct negative behaviors by the speaker, and I am, therefore, justified in coercing the speaker to correct such statements and to desist from such future allegations.

So what about slavery contracts? I think Dr. Long cannot realistically claim that "the right to liberty is inalienable" (p. 11). In the first place, the word "liberty" needs to be defined more specifically, and the meaning of "inalienable" depends on the specific obligation and time frame being accepted by specific others not to interfere with whatever behavior is relevant. A slavery contract is not enforceable unless it is known what a specific slave/master relationship entails. Any decision process is inalienable because, like thought, it goes on internally, but I can see no reason why one cannot agree to sell, exchange, or give his labor or the products of it to anyone who will contract with him for such. What happens to the solution Dr. Long adopts from Randy Barnett if the labor, or product, is to be given free? As I see his example, if, in a written, signed and witnessed contract you agree to paint my dog by Tuesday, July 4, 1995, and demand no remuneration from me for this service, I may, on July 5, start a process of coercion (myself, or I may turn it over to my representative) to get the promised paint job. But I cannot demand any other service not written in the contract. The dog (poor creature) may try to break the contract, and if he disappears (on his own not hidden by me), on July 3, I rather think the contract is no longer enforceable, but the dog probably would not prevail any other way.

If, even more stupidly, you agreed in a written, signed and witnessed contract to lick my boots any time I asked, for X period of time, I believe I have a right to pursue enforcement of the contract if you renege. But I can't make you perform any other slavery-type behaviors not specified in the contract. I don't think even any animals would get involved in this type of relationship, but who's to be the judge of properly human behavior other than those who mutually agree to engage in it? And what third party could interfere without initiating aggression? It seems to me that the moral of all these stories is that contracts are not to be entered into lightly without reasonable forethought. I might also question whether the term "slavery contract" makes any real sense anyway, since a contract is entered into freely, and no "master" would give his intended "slave" a list of expected duties or a chance to refuse signing on.

Personally, when contemplating appropriate interactions I like to use the following diagram to aid my thought and behavior, because it clarifies for me just how mutually dependent we all are. Each individual has maximum freedom only inside his body outline, and even that is influenced by what (s)he must ingest to maintain life. Whatever results after internal processing becomes environment for someone else. Notice also that the shape and character of the total group under consideration may be altered by a change made by one person.

Each circle represents you or me or anybody just keep enlarging to represent society. Add animals, plants, mountains, oceans, etc., etc., and keep expanding to represent the universe. If there is any "edge" to the universe or anything outside it, I don't think anyone can know about it.

I admire Dr. Long's analysis of the kinds of coercion described in his earlier article "Punishment vs. Restitution: A Formulation" (Formulations, Vol. I, No. 2 (Winter 1993-94), pp. 7, 12-13). And I accept his Principle of Proportion as something badly needed in law. I would be curious, however, to see in detail how Dr. Long might extend his arguments to apply to the death penalty, abortion, and suicide.

I very much appreciate the publication of Formulations as a spur to thought about difficult problems.

P. S. - My thinking has been heavily influenced by Henry Hazlitt's book The Foundations of Morality. I recommended reading it to Mr. Hammer and think he is going to review it for discussion at a future FNF meeting. I would be interested in learning the reactions to it of any and all of the people at FNF.

 
  (to start of Maribel Montgomery's remarks)

Roderick Long: I am most grateful for Ms. Montgomery's rich and wide-ranging comments; my reply cannot do full justice to all the points she raises, but let me respond where I can. I shall set off in italics the passages to which I am responding, taken in order.

 

"I don't think, when I take into account all the varieties of animals and conceptions of God that I can conjure up, that it is particularly helpful to say that human beings are (or ought to be) halfway between."

Quite true. I did not mean to suggest that one should seek to discover Aristotle's Golden Mean of Virtue by first specifying the extremes of vice on either side, and then aiming for the point halfway between. Aristotle calls that the "arithmetic mean," and firmly distinguishes it from his own approach, where it is not the extremes that determine what counts as the mean, but rather the mean that determines what counts as the extremes. The point of the neither-beast-nor-god criterion is to encourage us to make sure that in formulating our conception of virtue we attach due importance and value both to the vulnerable embodiedness of human beings and to the human capacity to transcend the limitations of that vulnerable embodiedness. What makes a lifeplan objectionably subhuman or superhuman is its departure from the due balance of these two sides of our nature. And the means of ascertaining this due balance is not some mere arithmetic procedure but rather what Aristotle calls phronêsis, or practical wisdom an intellectual virtue based in part on ethical reasoning and in part on a perhaps inarticulate moral sensitivity acquired through practical experience and a supportive moral environment. (The fullest presentation is in Aristotle's Nicomachean Ethics and Politics.)
 

I certainly would not deny that cooperation is generally the most rational strategy for attaining one's ends. However, this focuses on reason solely in its instrumental role, as a strategy for getting what one wants. My point was that the person committed to the value of rationality will seek to embody the ideal of reason not only in his means, but also in his ends, by choosing to deal with others through reason rather than through force. The moral problem with the aggressor is not simply that he's chosen irrational means to his ends, though this may often be true, but rather that his ends are irrational as well. I see the value of cooperation as being intrinsic, not merely instrumental; that is, cooperation would still be preferable to violence even if carried no strategic advantage. To defend cooperation on instrumental grounds alone runs the risk of accepting the Sophistic view criticized by Plato in Book II of his Republic the view that justice is merely a compromise by those too weak to commit aggression and get away with it. The Sophists argued that just people are just only grudgingly, and would gladly abandon their commitment to justice if they could somehow acquire the magical Ring of Gyges, which made its wearer invisible and so able to commit injustice in secret. The goal of the Republic, and in a sense of nearly all subsequent Greek and Roman moral philosophy, was to defend the just life as worth having on its own merits, apart from any further consequences. 
  I'm not sure I understand this. What does it mean to say that the intention or internal thought process "does not count"? Does that mean: does not count morally? That seems implausible. Surely there is an important moral difference between a) the person who saved my life accidentally, while attempting to kill me, b) the person who saved my life intentionally, in the hope of getting a reward, and c) the person who saved my life out of affection for me. Should we judge and treat these three people in exactly the same way? And even if we couldn't tell which person was which, wouldn't their different intentions still make for an important moral difference among them? 
  Once again, this approach seems to assume that rationality is solely a matter of picking appropriate means to one's already given ends. This is a modern notion that first gained currency with David Hume. Throughout the ancient and mediæval periods, it was assumed that rationality also had a second and more important function: making an appropriate choice of ends. I think the moderns made a tragic mistake when they abandoned that older insight; for if the choice of ends is morally and rationally arbitrary, then moral reasoning has nothing to say against those who choose force and violence as their ends. Peaceful cooperation was not the most efficient means to Hitler's ends. 
  Is it true that thought by itself has no effect on others? Parapsychologists might disagree. Still, let me grant the claim for the sake of argument. I still don't think this is what makes the right to free thought inalienable. Inalienability is a moral concept, not a causal one. To say that I have an inalienable right to X is not to say that I cannot give anyone the power to deprive me of X; rather, it is to say that I cannot give anyone the right to deprive me of X. There is no particular correlation between what powers people have and what rights people have unfortunately! 
  Ms. Montgomery and I must be familiar with different circles of libertarians. The libertarians I know and read talk about obligations incessantly. (For that matter, anyone who talks about rights is implicitly talking about obligations, since in saying that so-and-so has a right to X, one is saying inter alia that everyone else has an obligation not to deprive so-and-so of X.)
  Well, it depends. "Harm" is a slippery word, and one I think libertarians should avoid. Broadly speaking, I harm you whenever I do something that makes you worse off; but not every harm is an injustice. If I buy the last copy of the book you wanted, or marry the person you love, or persuade my friends to boycott your company, I've harmed you, but I haven't aggressed against you. If slanderous statements about you cause other people to do you an injustice (for example, a slanderer falsely accuses you of a crime, leading other people to fine you or lock you up), then the slanderer may well count as an aggressor who may legitimately be restrained by force. But if the slander merely causes other people to shun you, then I don't think coercion against the slanderer is legitimate; in that case the slanderer is a scumbag, but not a criminal. (There may be other ways of getting at the slanderer. For example, if the slanderer sells as true news what are provably lies, he can be prosecuted for defrauding the buyers.) 
  By "liberty" I mean what I take most libertarians to mean by it: the freedom to do as I wish with my own person and property, so long as I do not interfere with the freedom of others to do the same with theirs. By saying the right to liberty is "inalienable" I mean what is generally meant: that this right (unlike, say, my right over my car) cannot be voluntarily surrendered by its holder to another. I do not see how specific obligations and time frames change matters. 
  I certainly never denied anyone's right to do these things. Civilization is based on such voluntary exchanges.

There is an important difference, however, between exchanges involving the products of labor and exchanges involving labor itself. In the case of the products of labor no difficulty arises; such products are external, alienable property, and the owner alienates them to another person, either gratis or for a consideration.

Service contracts are the more difficult case. I do not deny the legitimacy of service contracts! But I think there are limits to the ways in which they can be enforced. What is to be required of the contract-breaker: specific performance (painting the dog), or refund plus damages (giving back the money with interest)? I do not see any way of justifying the enforcement of specific performance except on the assumption that the contractor alienated his self-sovereignty through the contract an assumption whose moral possibility I reject. The refund-plus-damages approach, on the other hand, is perfectly acceptable by my lights, since it involves only the transfer of alienable resources. 
 

Why should the dog object to having its portrait painted? (Ah, the ambiguities of contract ....) 
  As long as mutual agreement reigns, I agree that it's nobody else's business. The problem arises when mutual agreement ceases. If I initially agreed to lick your boots, but have since reneged, then obviously I am no longer agreeing to the relationship. How, then, are we to evaluate my coerced compliance as voluntary, looking to my past agreement, or as involuntary, looking to my present disagreement? My argument is that service contracts differ from transfers of goods because a person cannot relinquish title to him or herself. If I sell you some object and later change my mind, it's too late for me to take it back or dictate your use of it; my choices no longer matter because the object is no longer mine. But no decision can make me no longer mine; so in contracts that involve the use of my labor, consent, to justify, must be sustained. 
  Well, I wish that were true; but in fact, selling oneself into slavery has been a rather frequently exercised option throughout most of history. Usually some equivalent of "I hereby agree to do whatever you say from now on" was considered a sufficiently explicit list of duties.  
  My "Principle of Proportion," mentioned by Ms. Montgomery, states: "If I aggress against you, you have the right to coerce me in whatever way is necessary to remove me from your sphere of authority, so long as your coercion is not disproportionate to the seriousness of my aggression." This Principle imposes three tests for the legitimacy of any act of coercion: first, it must be directed against an aggressor; second, it must be necessary to end the aggression; and third, it must be proportionate in seriousness to the aggression.

We may assume that the death penalty passes the first test, i.e., that it is imposed only on aggressors. (As a matter of practical fact, this may not be true, and one reason for opposing the death penalty is the risk of mistakes. A person wrongly imprisoned can be released and given some kind of restitution; with a person wrongly executed, it is obviously different. It was because of just such a mistake that public outcry led to the repeal of the death penalty in Britain.)

The death penalty arguable passes the third test as well: if someone is a murderer, then killing that person is not disproportionate to the seriousness of their crime.

But does the death penalty pass the second test? Not often, I suspect. If one kills a criminal whom one could instead send to prison, or into exile, then one has passed beyond what is strictly necessary to defend the sovereignty of the innocent. Hence capital punishment, in my view, is ordinarily not justified, just as punishment in general is not justified. Nor do I accept the deterrent theory, according to which we execute this criminal in order to deter that criminal; coercion is justified in order to prevent aggression, but the aggression in question must be aggression by the person to be coerced, not aggression by someone else.

There are a few cases in which the death penalty might be justified. One case would be that of an individual on the spot, far from any official legal help, who has captured a murderer but doubts his ability to keep the murderer under lock and key (suppose the murderer is an escape artist). In that case, the captor could justifiably kill his captive in self-defense. Another case might be that of a criminal who can still kill people from behind bars, perhaps a powerful gangster whose orders are conveyed to the outside through the prison network. Here it might be necessary to kill the gangster to protect the innocent (though if solitary confinement would have the same effect, it should be chosen over execution).

What about abortion? I've written on this issue at some length elsewhere. ("Abortion, Abandonment, and Positive Rights: The Limits of Compulsory Altruism," in Social Philosophy and Policy, Vol. 10 (Winter 1993); reprinted in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul, eds., Altruism (Cambridge University Press, 1993), pp. 166-191. This is the article in which I first introduced and defended the Principle of Proportion.) To summarize briefly my rather complicated argument there:

Abortion passes the first test because an unwanted ftus is an aggressor. The ftus is innocent, of course but I define aggression in terms of actions, not in terms of intentions. An unwanted ftus is occupying its mother's body against her will an act of aggression if there ever was one. (I don't think it matters whether she originally consented to the pregnancy or not. Once again: consent, to justify, must be sustained.)

Abortion passes the second test because, given current medical technology, there's no way to expel the ftus without killing it. (That will soon change, raising new moral questions of the sort dramatized in Victor Koman's novel Solomon's Knife. At the time I wrote the article in question I thought the absence of any non-fatal way of removing the ftus was a precondition for the permissibility of abortion. I'm no longer convinced of that but that's another story.)

Finally, abortion passes the third test, in my view, because forcing a woman to let her body be used as an incubator is the moral equivalent of rape, and I do not think killing a rapist in self-defense is a morally disproportionate response.

As for suicide, many of my fellow inalienable-rights fans (e.g., Hegel) believe the case against slavery contracts also extends to a case against the right to commit suicide. I don't agree. A person who offers to sell himself into slavery is attempting to separate himself from his right to liberty. This is impossible, so his offer is fraudulent. But isn't a person who commits suicide trying to do the same thing with his inalienable right to life?

I don't think so. Consider: either we survive death or we do not. If we survive death, then the person who commits suicide is simply exercising his right to relocate. If we do not survive death, the person who commits suicide is not trying to separate himself from his right to life; he is simply destroying himself and his right together.

What about assisted suicide? The same old rule applies: consent, to justify, must be sustained. I have the right to appoint an agent to help me exercise my rights, including my right to commit suicide. But I cannot irrevocably surrender my rights to this agent, turning him into my master; if I change my mind, his authority ends, and he cannot go ahead and kill me anyway (assuming I'm still in my right mind when I withdraw my consent).

So, in brief, my position is: death penalty no, abortion rights yes, suicide rights yes.  
 

For Rich Hammer's comments on The Foundations of Morality, see his review on page 14 of this issue. As for myself, while there is much in Hazlitt's book that I admire, his basic ethical approach is antithetical to mine. Hazlitt writes:
  "In the sense that all rules of conduct must be judged by their tendency to lead to desirable rather than undesirable social results, any rational ethics whatever must be utilitarian."

(Henry Hazlitt, The Foundations of Morality (Nash Publishing, Los Angeles, 1961), p. xii.)
 

"Ethics is a means rather than an ultimate end. It has derivative or 'instrumental' value rather than 'intrinsic' or final value."

(Hazlitt, p 34; emphasis his.)
 

I find this consequentialist approach to ethics unsatisfying, for several reasons.

First, I do not believe a consequentialist approach can provide a reliable grounding for a morality of cooperation. It may be true that as a general rule cooperation is a better strategy than aggression, but even Hazlitt admits that general rules have exceptions. Anyone who is interested in cooperation merely as a strategy is going to take advantage of those exceptions from time to time. Hazlitt points out, quite correctly, that life is uncertain, and that we cannot always be sure that an apparent exception is a real one. But this means only that a course of aggression should be decided on only with great caution, not that it should be forsworn entirely. Any attempt to ground morality on consequentialist considerations alone will sometimes yield the wrong answers.

Second, even when consequentialism gives us the right answers, it does so for the wrong reasons. Someone who refrains from murder simply as the result of a cost-benefit analysis, and who would happily have committed the murder if the calculation had gone the other way, is the moral equivalent of a murderer.

Third, consequentialism recognizes only one kind of value: what I call promotion-value. Promotion-value is value to which the appropriate response is some attempt to promote it; by contrast, what I call respect-value is value to which the appropriate response is respect. Consequentialism does not recognize the existence of respect-value. The difference between these two kinds of value is best illustrated by the following example.

Suppose I believe the value of human life is solely a matter of promotion-value. Then I believe that what matters, all other things being equal, is the total amount of human life that gets preserved the more the better. If I have a chance to kill one innocent person in order to save the lives of five other people (say, for example, that the five all need different organ transplants, and I can save them all by killing one healthy person and redistributing his organs to them), then I ought to do so, because I should choose the scenario where five live and one die over the scenario where one lives and five die since I am trying to promote human life, and the scenario in which I commit murder is one in which a greater amount of human life is preserved.

Suppose, on the other hand, that I believe the value of human life is primarily a matter of respect-value rather than promotion-value. That is, I believe (non-aggressive) human life is a sacred thing and one should avoid taking it. In that case, I will refuse to kill the one person in order to save the five, because the sacredness of human life requires a hands-off approach. What matters is not just the end result, but the agent's relationship to it.

According to consequentialists, promotion-value is the only kind of value that exists; respect-value is dismissed as "mysterious" or "mystical." But I cannot see why respect-value should be considered any more mysterious than promotion-value. A moral theory that recognizes only one of these two kinds of value seems impoverished.

As Bernard Williams writes:  

"It is because consequentialism attaches value ultimately to states of affairs, and its concern is with what states of affairs the world contains, that it essentially involves the notion ... that ... I must be just as much responsible for the things I allow or fail to prevent, as I am for things that I myself ... bring about. ... A feature of utilitarianism is that it cuts out ... the idea ... that each of us is specially responsible for what he does, rather than for what other people do. This is an idea closely connected with the value of integrity. [Utilitarianism] makes integrity as a value more or less unintelligible."

(Bernard Williams, in J. J. C. Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge University Press, 1973), pp. 95-99.)
 

My other major quarrel with Hazlitt is over his subjectivism:   "All valuation is in origin necessarily subjective."
(Hazlitt, p. 162.)  

"Unless our oughts are to be purely arbitrary, purely dogmatic, they must somehow grow out of what is. Now the connection between what is and what ought to be is always a desire of some kind. ... All our desires may be generalized as desires to substitute a more satisfactory state of affairs for a less satisfactory state."
(Hazlitt, p. 12.) 

I have several objections to this.

First, to my way of thinking a desire for X is a response to the (perceived) value of X, not the creator of X's value. If merely desiring something were sufficient to make it genuinely valuable, then a scientific ethics of the kind Hazlitt aspires to establish would be impossible, since any X Hazlitt chooses to set up as a moral value can be invalidated simply because someone chooses to value the opposite of X.

Second, Hazlitt says that everyone necessarily desires maximum satisfaction. He makes clear that he interprets this in a psychologically deterministic fashion. I don't think psychological determinism is a coherent or defensible philosophical doctrine; still less do I see how psychological determinism, ruling out as it does the possibility of free choice, can be made consistent with the notion of ethics, which presupposes moral responsibility. Moreover, the details of Hazlitt's psychological determinism are rather unrealistic: Hazlitt makes clear that the "satisfaction" he posits as the ultimate goal of all our actions is meant to be understood as a subjective psychological state, analogous to "pleasure" but with a less restrictive connotation. In other words, Hazlitt is saying that whenever we have a desire, the ultimate goal of that desire is some state of our own consciousness. If that were true, how could people ever desire to die (as they frequently do even, or perhaps especially, people who don't believe in an afterlife)? Stranger yet, why would anyone ever write a will, which involves expressing desires for things to happen after one's death? Why would anyone care about what happens to our loved ones after we are dead, since desires about this are not desires to be in some psychological state? Nozick's critique of subjectivism is relevant here:  

"Suppose there were an experience machine that would give you any experience you desired. ... Should you plug into this machine for life, preprogramming your life's experiences? ... Of course, while in the tank you won't know that you're there; you'll think it's all actually happening. ... Would you plug in? What else can matter to us, other than how our lives feel from the inside? ...

What does matter to us in addition to our experiences? First, we want to do certain things, and not just have the experience of doing them. ... A second reason for not plugging in is that we want to be a certain way, to be a certain sort of person. ... Thirdly, plugging into an experience machine limits us to a man-made reality, to a world no deeper or more important than that which people can construct. There is no actual contact with any deeper reality, though the experience of it can be simulated. ...

We learn that something matters to us in addition to experience by imagining an experience machine and then realizing that we would not use it."

(Robert Nozick, Anarchy, State, and Utopia (Basic Books, New York, 1974), pp. 42-44.) 

In short, Hazlitt's whole psychological theory strikes me as somewhat primitive and unsophisticated, and the ethical theory he builds on it inherits the weaknesses of its foundation. The Foundations of Morality has its strengths, but these strengths, like its author's, are primarily in the areas of economic and political theory. In this area Hazlitt might be seen as a valuable precursor to the work of Robert Axelrod, whose book The Evolution of Cooperation documents the practicality of what Hazlitt calls mutualism or cooperatism. D
 

(to start of Maribel Montgomery's remarks)      (to start of Roderick Long's reply)
 

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