Hegel’s Philosophy of Right
A: Non-Malicious Wrong - B: Fraud - C: Crime
In contract the principle of rightness is present as something posited, while its inner universality is there as something common in the arbitrariness and particular will of the parties. This appearance of right, in which right and its essential embodiment, the particular will, correspond immediately, i.e. fortuitously, proceeds in wrong to become a show, an opposition between the principle of rightness and the particular will as that in which right becomes particularised. But the truth of this show is its nullity and the fact that right reasserts itself by negating this negation of itself. In this process the right is mediated by returning into itself out of the negation of itself; thereby it makes itself actual and valid, while at the start it was only implicit and something immediate.
Addition: The principle of rightness, the universal will, receives its essential determinate character through the particular will, and so is in relation with something which is inessential. This is the relation of essence to its appearance. Even if the appearance corresponds with the essence, still, looked at from another point of view, it fails to correspond with it, since appearance is the stage of contingency, essence related to the inessential. In wrong, however, appearance proceeds to become a show. A show is a determinate existence inadequate to the essence, the empty disjunction and positing of the essence, so that in both essence and show the distinction of the one from the other is present as sheer difference. The show, therefore, is the falsity which disappears in claiming independent existence; and in the course of the show’s disappearance the essence reveals itself as essence, i.e. as the authority of the show. The essence has negated that which negated it and so is corroborated. Wrong is a show of this kind, and, when it disappears, it acquires the character of something fixed and valid. What is here called the essence is just the principle of rightness, and in contrast with it the particular will annuls itself as a falsity. Hitherto the being of the right has been immediate only, but now it is actual because it returns out of its negation. The actual is the effectual; in its otherness it still holds fast to itself, while anything immediate remains susceptible of negation.
When right is something particular and therefore manifold in contrast with its implicit universality and simplicity, it acquires the form of a show.
(a) This show of right is implicit or immediate — non-malicious wrong or a civil offence;
(b) right is made a show by the agent himself — fraud;
(c) the agent makes it a nullity altogether — crime.
Addition: Wrong is thus the show of the essence, putting itself as self-subsistent. If the show is only implicit and not explicit also, i.e. if the wrong passes in my eyes as right, the wrong is non-malicious. The show here is a show from the point of view of the right but not from my point of view.
The second type of wrong is fraud. Here the wrong is not a show from the point of view of the principle of rightness. The position is that I am making a show to deceive the other party. In fraud the right is in my eyes only a show. In the first case, the wrong was a show from the point of view of the right. In the second case, from my own point of view, from the point of view of wrong, right is only a show.
Finally, the third type of wrong is crime. This is wrong both in itself and from my point of view. But here I will the wrong and make no use of even a show of right. I do not intend the other against whom the crime is committed to regard the absolutely wrong as right. The distinction between crime and fraud is that in the latter the form of acting still implies a recognition of the right, and this is just what is lacking in crime.
Taking possession (see § 54) and contract-both in themselves and in their particular species-are in the first, instance different expressions and consequences of my willing pure and simple; but since the will is the inherently universal, they are, through their recognition by others, grounds of title. Such grounds are external to one another and multiple, and this implies that different persons may have them in relation to one and the same thing. Each person may look upon the thing as his property on the strength of the particular ground on which he bases his title. It is in this way that one man’s right may clash with another’s.
This clash which arises when a thing has been claimed on some single ground, and which comprises the sphere of civil suits at law, entails the recognition of rightness as the universal and decisive factor, so that it is common ground that the thing in dispute should belong to the party who has the right to it. The suit is concerned only with the subsumption of the thing under the property of one or other of the parties-a straightforward negative judgement, where, in the predicate ‘mine’, only the particular is negated.
The recognition of rightness by the parties is bound up with their opposed particular interest and point of view. In opposition to this show of rightness, yet within this show itself (see the preceding Paragraph), the principle of rightness arises as something kept in view and demanded by the parties. But at first it arises only as an ‘ought-to-be’ because the will is not yet present here as a will so freed from the immediacy of interest as, despite its particularity, to have the universal will for its aim; nor is it yet at this point characterised as a recognised actuality of such a sort that in face of it the parties would have to renounce their particular interest and point of view.
Addition: There is a specific ground for what is inherently right, and the wrong which I hold to be right I also defend on some ground or other. The nature of the finite and particular is to allow room for accidents. Thus here collisions must occur, because here we are on the level of the finite. This first type of wrong-doing negates the particular will only, while universal rightness is respected. Consequently this is the most venial of the types of wrong-doing. If I say ‘a rose is not red’, I still recognise that it has a colour. Hence I do not deny the genus; all that I negate is the particular colour, red. Similarly, right is recognised here. Each of the parties wills the right and what is supposed to result to each is the right alone. The wrong of each consists simply in his holding that what he wants is right.
The principle of rightness, when distinguished from the right as particular and as determinately existent, is characterised as something demanded, as the essential thing; yet in this situation it is still only something demanded and from that point of view something purely subjective, and so inessential — something merely showing there. Thus we have fraud when the universal is set aside by the particular will and reduced to something only showing in the situation, primarily in contract, when the universal will is reduced to a will which is common only from the outsider’s point of view.
Addition: At this second level of wrong-doing, the particular will is respected, but universal rightness is not. In fraud, the particular will is not in. fringed, because the party defrauded is saddled with what he is asked to believe is right. Thus the right which he demands is posited as something subjective, as a mere show, and it is this which constitutes fraud.
In contract I acquire a property for the sake of its particular characteristics, and at the same time my acquisition of it is governed by the inner universality which it possesses partly in respect of its value and partly because it has been the property of another. If the other likes, a false disguise may be given to the thing I acquire, so that the contract is right enough so far as it is an exchange, voluntary on both sides, of this thing in its immediacy and uniqueness, but still the aspect of implicit universality is lacking. (Here we have an infinite judgment expressed positively or as a tautology.)
Here again it is in the first instance only a demand that, in contrast with this acceptance of the thing simply as this thing and with the mere intentions and arbitrariness of the will, objectivity or universality should be recognisable as value and should prevail as right, and equally a demand only that the subjective arbitrary will, opposing itself to the right, should be superseded.
Addition: In the case of non-malicious wrong and civil suits at law, no punishment is imposed, because in such cases the wrongdoer has willed nothing in opposition to the right. In the case of fraud, on the other hand, punishments come in, because here it is an infringement of right which is in question.
In owning property I place my will in an external thing, and this implies that my will, just by being thus reflected in the object, may be seized in it and brought under compulsion. It may simply be forced in the thing, unconditionally, or it may be constrained to sacrifice something or to do some action as a condition of retaining one or other of its possessions or embodiments — it may be coerced.
Addition: Wrong in the full sense of the word is crime, where there is no respect either for the principle of rightness or for what seems right to me, where, then, both sides, the objective and the subjective, are infringed.
As a living thing man may be coerced, i.e. his body or anything else external about him may be brought under the power of others; but the free will cannot be coerced at all (see § 5), except in so far as it falls to withdraw itself out of the external object in which it is held fast, or rather out of its idea of that object (see § 7). Only the will which allows itself to be coerced can in any way be coerced.
Since it is only in so far as the will has an existence in something determinate that it is Idea or actually free, and since the existent in which it has laid itself is freedom in being, it follows that force or coercion is in its very conception directly self-destructive because it is an expression of a will which annuls the express ion or determinate existence of a will. Hence force or coercion, taken abstractly, is wrong.
That coercion is in its conception self-destructive is exhibited in the world of reality by the fact that coercion is annulled by coercion; coercion is thus shown to be not only right under certain conditions but necessary, i.e. as a second act of coercion which is the annulment of one that has preceded.
Remark: Breaking a contract by failing to carry out its stipulated terms, or neglect of duty rightly owed to family or state, or action in defiance of that duty, is the first act of coercion or at least force, in that it involves depriving another of his property or evading a service due to him.
Coercion by a schoolmaster, or coercion of savages and brutes, seems at first sight to be an initial act of coercion, not a second, following on one that has preceded. But the merely natural will is implicitly a force against the implicit Idea of freedom which must be protected against such an uncivilised will and be made to prevail in it. Either an ethical institution has already been established in family or government, and the natural will is a mere display of force against it; or else there is only a state of nature, a state of affairs where mere force prevails and against which the Idea establishes a right of Heroes.
Addition: Once the state has been founded, there can no longer be any heroes. They come on the scene only in uncivilised conditions. Their aim is right, necessary, and political, and this they pursue as their own affair. The heroes who founded states, introduced marriage and agriculture, did not do this as their recognised right, and their conduct still has the appearance of being their particular will. But as the higher right of the Idea against nature, this heroic coercion is a rightful coercion. Mere goodness can achieve little against the power of nature.
Abstract right is a right to coerce, because the wrong which transgresses it is an exercise of force against the existence of my freedom in an external thing. The maintenance of this existent against the exercise of force therefore itself takes the form of an external act and an exercise of force annulling the force originally brought against it.
Remark: To define abstract right, or right in the strict sense, at the very outset as a right in the name of which coercion may be used, means to fasten on it in a result which first comes on the scene by the indirect route of wrong.
Addition: Special attention must be paid at this point to the difference between the right and the moral. In morality, i.e. when I am reflected into myself, there is also a duality, because the good is my aim and I ought to determine myself by reference to that Idea. The good is embodied in my decision and I actualise the good in myself. But this embodiment is purely inward and therefore cannot be coerced. The law of the land therefore cannot possibly wish to reach as far as a man’s disposition, because, so far as his moral convictions ate concerned, he exists for himself alone, and force in that context is meaningless.
The initial act of coercion as an exercise of force by the free agent, an exercise of force which infringes the existence of freedom in its concrete sense, infringes the right as right, is crime — a negatively infinite judgments in its full sense, whereby not only the particular (i.e. the subsumption under my will of a single thing — See § 85) is negated, but also the universality and infinity in the predicate ‘mine’ (i.e. my capacity for rights). Here the negation does not come about with the co-operation of my thinking (as it does in fraud — see § 88) but in defiance of it. This is the sphere of criminal law.
Remark: Right, the infringement of which is crime, has so far only those formations which we have seen in the preceding Paragraphs; hence crime also, to begin with, has its more precise significance in relation to these specific rights. But the substance of these forms is the universal which remains the same throughout its further development and formation, and consequently its infringement, crime, also remains the same and accords with its concept. Thus the specific characteristic of crime [in general) to be noticed in the next Paragraph is characteristic also of the particular, more determinate, content in e.g. perjury, treason, forgery, coining, &c.
It is only the will existent in an object that can suffer injury. In becoming existent in something, however, the will enters the sphere of quantitative extension and qualitative characteristics, and hence varies accordingly. For this reason, it makes a difference to the objective aspect of crime whether the will so objectified and its specific quality is injured throughout its entire extent, and so in the infinity which is equivalent to its concept (as in murder, slavery, enforced religious observance, &c.), or whether it is injured only in a single part or in one of its qualitative characteristics, and if so, in which of these.
Remark: The Stoic view that there is only one virtue and one vice, the laws of Draco which prescribe death as a punishment for every offence, the crude formal code of Honour which takes any insult as an offence against the infinity of personality, all have this in common, that they go no further than the abstract thought of the free will and personality and fail to apprehend it in the concrete and determinate existence which it must possess as Idea.
The distinction between robbery and theft is qualitative; when I am robbed, personal violence is done to me and I am injured in my character as consciousness existing here and now and so as this infinite subject.
Many qualitative characteristics of crime, e.g. its danger to public safety,84have their basis in more concrete circumstances, although in the first instance they also are often fastened on by the indirect route as consequences instead of from the concept of the thing. For instance, the crime which taken by itself is the more dangerous in its immediate character is an injury of a more serious type in its range or its quality.
The subjective, moral, quality of crime rests on the higher distinction implied in the question of how far an event or fact pure and simple is an action, and concerns the subjective character of the action itself, on which see below.
Addition: How any given crime is to be punished cannot be settled by mere thinking; positive laws are necessary. But with the advance of education, opinions about crime become less harsh, and today a criminal is not so severely punished as he was a hundred years ago. It is not exactly crimes or punishments which change but the relation between them.
The infringement of right as right is something that happens and has positive existence in the external world, though inherently it is nothing at all. The manifestation of its nullity is the appearance, also in the external world, of the annihilation of the infringement. This is the right actualised, the necessity of the right mediating itself with itself by annulling what has infringed it.
Addition: A crime alters something in some way, and the thing has its existence in this alteration. Yet this existence is a self-contradiction and to that extent is inherently a nullity. The nullity is that the crime has set aside right as such. That is to say, right as something absolute cannot be set aside, and so committing a crime is in principle a nullity: and this nullity is the essence of what a crime effects. A nullity, however, must reveal itself to be such, i.e. manifest itself as vulnerable. A crime, as an act, is not something positive, not a first thing, on which punishment would supervene as a negation. It is something negative, so that its punishment is only a negation of the negation. Right in its actuality, then, annuls what infringes it and therein displays its validity and proves itself to be a necessary, mediated, reality.
In so far as the infringement of the right is only an injury to a possession or to something which exists externally, it is a malum or damage to some kind of property or asset. The annulling of the infringement, so far as the infringement is productive of damage, is the satisfaction given in a civil suit, i.e. compensation for the wrong done, so far as any such compensation can be found.
Remark: Apropos of such satisfaction, the universal character of the damage, i.e. its ‘value’, must here again take the place of its specific qualitative character in cases where the damage done amounts to destruction and is quite irreparable.
But the injury which has befallen the implicit will (and this means the implicit will of the injuring party as well as that of the injured and everyone else) has as little positive existence in this implicit will as such as it has in the mere state of affairs which it produces. In itself this implicit will (i.e. the right or law implicit) is rather that which has no external existence and which for that reason cannot be injured. Consequently, the injury from the point of view of the particular will of the injured party and of onlookers is only something negative. The sole positive existence which the injury possesses is that it is the particular will of the criminal. Hence to injure [or penalise] this particular will as a will determinately existent is to annul the crime, which otherwise would have been held valid, and to restore the right.
Remark: The theory of punishment is one of the topics which have come off worst in the recent study of the positive science of law, because in this theory the Understanding is insufficient; the essence of the matter depends on the concept.
If crime and its annulment (which later will acquire the specific character of punishment) are treated as if they were unqualified evils, it must, of course, seem quite unreasonable to will an evil merely because another evil is there already. To give punishment this superficial character of an evil is, amongst the various theories of punishment, the fundamental presupposition of those which regard it as a preventive, a deterrent, a threat, as reformative, &c., and what on these theories is supposed to result from punishment is characterised equally superficially as a good. But it is not merely a question of an evil or of this, that, or the other good; the precise point at issue is wrong and the righting of it. If you adopt that superficial attitude to punishment,88 you brush aside the objective treatment of the righting of wrong, which is the primary and fundamental attitude in considering crime; and the natural consequence is that you take as essential the moral attitude, i.e. the subjective aspect of crime, intermingled with trivial psychological ideas of stimuli, impulses too strong for reason, and psychological factors coercing and working on our ideas (as if freedom were not equally capable of thrusting an idea aside and reducing it to something fortuitous!). The various considerations which are relevant to punishment as a phenomenon and to the bearing it has on the particular consciousness, and which concern its effects (deterrent, reformative, &c.) on the imagination, are an essential topic for examination in their place, especially in connection with modes of punishment, but all these considerations presuppose as their foundation the fact that punishment is inherently and actually just. In discussing this matter the only important things are, first, that crime is to be annulled, not because it is the producing of an evil, but because it is an infringement of the right as right, and secondly, the question of what that positive existence is which crime possesses and which must be annulled; it is this existence which is the real evil to be removed, and the essential point is the question of where it lies. So long as the concepts here at issue are not clearly apprehended, confusion must continue to reign in the theory of punishment.
Addition: Feuerbach bases his theory of punishment on threat and thinks that if anyone commits a crime despite the threat, punishment must follow because the criminal was aware of it beforehand. But what about the justification of the threat? A threat presupposes that a man is not free, and its aim is to coerce him by the idea of an evil. But right and justice must have their seat in freedom and the will, not in the lack of freedom on which a threat turns. To base a justification of punishment on threat is to liken it to the act of a man who lifts his stick to a dog. It is to treat a man like a dog instead of with the freedom and respect due to him as a man. But a threat, which after all may rouse a man to demonstrate his freedom in spite of it, discards justice altogether. — Coercion by psychological factors can concern only differences of quantity and quality in crime, not the nature of crime itself, and therefore any legal codes that may be products of the doctrine that crime is due to such coercion lack their proper foundation.
The injury [the penalty] which falls on the criminal is not merely implicitly just — as just, it is eo ipso his implicit will, an embodiment of his freedom, his right; on the contrary, it is also a right established within the criminal himself, i.e. in his objectively embodied will, in his action. The reason for this is that his action is the action of a rational being and this implies that it is something universal and that by doing it the criminal has laid down a law which he has explicitly recognised in his action and under which in consequence he should be brought as under his right.
Remark: As is well known, Beccaria denied to the state the right of inflicting capital punishment. His reason was that it could not be presumed that the readiness of individuals to allow themselves to be executed was included in the social contract, and that in fact the contrary would have to be assumed. But the state is not a contract at all (see Remark to § 75) nor is its fundamental essence the unconditional protection and guarantee of the life and property of members of the public as individuals. On the contrary, it is that higher entity which even lays claim to this very life and property and demands its sacrifice. Further, what is involved in the action of the criminal is not only the concept of crime, the rational aspect present in crime as such whether the individual wills it or not, the aspect which the state has to vindicate, but also the abstract rationality of the individual’s volition.
Since that is so, punishment is regarded as containing the criminal’s right and hence by being punished he is honoured as a rational being. He does not receive this due of honour unless the concept and measure of his punishment are derived from his own act. Still less does he receive it if he is treated either as a harmful animal who has to be made harmless, or with a view to deterring and reforming him.
Moreover, apart from these considerations, the form in which the righting of wrong exists in the state, namely punishment, is not its only wrong.
Addition: Beccaria’s requirement that men should give their consent to being punished is right enough, but the criminal gives his consent already by his very act. The nature of the crime, no less than the private will of the criminal, requires that the injury initiated by the criminal should be annulled. However that may be, Beccaria’s endeavour to have capital punishment abolished has had beneficial effects. Even if neither Joseph II nor the French ever succeeded in entirely abolishing it, still we have begun to see which crimes deserve the death penalty and which do not. Capital punishment has in consequence become rarer, as in fact should be the case with this most extreme punishment.
The annulment of the crime is retribution in so far as (a) retribution in conception is an ‘injury of the injury’, and (b) since as existent a crime is something determinate in its scope both qualitatively and quantitatively, its negation as existent is similarly determinate. This identity rests on the concept, but it is not an equality the specific character of the crime and that of its negation; on the contrary, the two injuries are equal only in respect of their implicit character, i.e. in respect of their ‘value’.
Remark: Empirical science requires that the definition of a class concept (punishment in this case) shall be drawn from ideas universally present to conscious psychological experience. This method would prove that e universal feeling of nations and individuals about crime is and has been that it deserves punishment, that as the criminal has done, should it be done to him. (There is no understanding how these sciences, which find the source of their class concepts in ideas universally shared, come on other occasions to take for granted propositions of like ‘facts of consciousness’ also styled ’universal’.)
But a point of great difficulty has been introduced into the idea of retribution by the category of equality, though it is still true that the justice of specific types or amounts of punishment is a further matter, subsequent to the substance of the thing itself. Even if to determine the later question of specific punishments we had to look round for principles other than those determining the universal character of punishment, still the latter remains what it is. The only thing is that the concept itself must in general contain the fundamental principle for determining the particular too. But the determinate character given by the concept to punishment is just that necessary connection between crime and punishment already mentioned; crime, as the will which is implicitly null, eo ipso contains its negation in itself and this negation is manifested as punishment. k is this inner identity whose reflection in the external world appears to the Understanding as ‘equality’. The qualitative and quantitative characteristics of crime and its annulment fall, then, into the sphere of externality. In any case, no absolute determinacy is possible in this sphere (compare § 49); in the field of the finite, absolute determinacy remains only a demand, a demand which the Understanding has to meet by continually increasing delimitation — a fact of the greatest importance — but which continues ad infinitum and which allows only of perennially approximate satisfaction.
If we overlook this nature of the finite and then into the bargain refuse to go beyond abstract and specific equality, we are faced with the insuperable difficulty of fixing punishments (especially if psychology adduces in addition the strength of sensual impulses and Consequentially either the greater strength of the evil will or the greater weakness, or the restricted freedom, of the will as such — we may choose which we please). Furthermore, it is easy enough from this point of view to exhibit the retributive character of punishment as an absurdity (theft for theft, robbery for robbery, an eye for an eye, a tooth for a tooth and then you can go on to suppose that the criminal has only one eye or no teeth). But the concept has nothing to do with this absurdity, for which indeed the introduction of this specific equality is solely to blame. Value, as the inner equality of things which in their outward existence are specifically different from one another in every way, is a category which has appeared already in connection with contracts (see § 77), and, also in connection with injuries that are the subject of civil suits (see Remark to § 98); and by means of it our idea of a thing is raised above its immediate character to its universality. In crime, as that which is characterised at bottom by the infinite aspect of the deed, the purely external specific character vanishes all the more obviously, and equality remains the fundamental regulator of the essential thing, to wit the deserts of the criminal, though not for the specific external form which the payment of those deserts may take. It is only in respect of that form that there is a plain inequality between theft and robbery on the one hand, and fines, imprisonment, &c., on the other. In respect of their ‘value’, however, i.e. in respect of their universal property of being injuries, they are comparable. Thus, as was said above, it is a matter for the Understanding to look for something approximately equal to their ‘value’ in this sense. If the implicit interconnection of crime and its negation, and if also the thought of value and the comparability of crime and punishment in respect of their value are not apprehended, then it may become possible to see in a punishment proper only an ‘arbitrary’ connection of an evil with an unlawful action.
Addition: Retribution is the inner connection and the identity of two conceptions which are different in appearance and which also exist in the world as two distinct and opposed events. Retribution is inflicted on the criminal and so it has the look of an alien destiny, not intrinsically his own. Nevertheless punishment, as we have seen, is only crime made manifest, i.e. is the second half which necessarily presupposes the first. Prima facie, the objection to retribution is that it looks like something immoral, ie. like revenge, and that thus it may pass for something personal. Yet it is not something personal, but the concept itself, which carries out retribution. ‘Vengeance is mine, saith the Lord’, as the Bible says. And if something in the word ‘repay’ calls up the idea of a particular caprice of the subjective will, it must be pointed out that what is meant is only that the form which crime takes is turned round against itself. The Eumenides sleep, but crime awakens them, and hence it is the very act of crime itself which vindicates itself. — Now although requital cannot simply be made specifically equal to the crime, the case is otherwise with murder, which is of necessity liable to the death penalty; the reason is that since life is the full compass of a man’s existence, the punishment here cannot simply consist in a ‘value’, for none is great enough, but can consist only in taking away a second life.
The annulling of crime in this sphere where right is immediate is principally revenge, which is just in its content in so far as it is. retributive. But in its form it is an act of a subjective will which can place its infinity in every act of transgression and whose justification, therefore, is in all cases contingent, while to the other party too it appears as only particular. Hence revenge, because it is a positive action of a particular will, becomes a new transgression; as thus contradictory in character, it falls into an infinite progression and descends from one generation to another ad infinitum.
Remark: In cases where crimes are prosecuted and punished not as crimina publica but as crimina privata (e.g. in Jewish law and Roman law, theft and robbery; in English law to this day, certain crimes, &c.) punishment is in principle, at least to some extent, revenge. There is a difference between private revenge and the revenge of heroes, knights-errant, &C., ‘which is part of the founding of states.
Addition: In that condition of society when there are neither magistrates nor laws, punishment always takes the form of revenge; revenge remains defective inasmuch as it is the act of a subjective will and therefore does not correspond with its content. Those who administer justice are persons, but their will is the universal will of the law and they intend to import into the punishment nothing except what is implied in the nature of the thing. The person wronged, however, views the wrong not as something qualitatively and quantitatively limited but only as wrong pure and simple, and in requiting the injury he may go too far, and this would lead to a new wrong. Amongst uncivilised peoples, revenge is deathless; amongst the Arabs, for instance, it can be checked only by superior force or by the impossibility of its satisfaction. A residue of revenge still lingers in comparatively modern legislation in those cases where it is left to the option of individuals whether to prosecute or not.
The demand that this contradiction, which is present here in the manner in which wrong is annulled, be resolved like contradictions in the case of other types of wrong (see §§ 86, 89), is the demand for a justice freed from subjective interest and a subjective form and no longer contingent on might, i.e. it is the demand for justice not as revenge but as punishment. Fundamentally, this implies the demand for a will which, though particular and subjective, yet wills the universal as such. But this concept of Morality is not simply something demanded; it has emerged in the course of this movement itself.
Transition from Right to Morality
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