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The Unjust Laws: A brief notes on the problem of obedience to unjust laws in Political Science

The concept of political obligation is that the citizen must obey the laws of the State. Though there is a big debate regarding origin and purpose of the State and why people should obey the laws of the State it is so clear that at present nations are providing political obligations to their subjects through laws. But, if that laws are not acceptable by the people because of its unjust nature then showing obedience to unjust law leads to revolutions. So, first one should know what law is, what is purpose of law, when law became unjust law and what are the consequences for obedience to unjust laws. More what are the safeguards against unjust law.

What is law?

There is no certain meaning and definition to the law. However, in simple one can understand that law means A set of rules, regulation, bylaws, principles or a precedent etc. made by competent authority to guide human conduct (external) to protect and promote rights of the people like life, liberty, property and reputation, to provide law and order to maintain peace in the society and to improve prosperity in the society.

What is the purpose of law?

Though there is no certainty and limitation regarding purpose of law. Different political thinkers had explained different purposes to law.
The following are some of the purposes that should be fulfilled by law:
  • To maintain law and order to provide security internal as well as external to maintain peace in the society.
  • To protect and promote rights of the people.
  • To improve prosperity in the society.
  • Now a day�s States are turned to welfare State from police State where the State functions became more and more. The State has to do welfare to the people from womb to tomb. So, purpose of the laws is becoming wider. ( law should not be static and it should change in accordance with needs of the society)
  • One of the important purpose of the law is distributive justice
The purpose of the law should be distributive. Distributive justice means it works to ensure a fair division of social benefit and burdens among the member of the community. Equal rights should be distributed to all the people of the society.

However, it is true that Law is an instrument in the hands of the Society, Justice is the goal. Ultimately the aim of law is justice. So for the better society obedience to law is necessary. That means a law abiding society is preferable then lawlessness, anarchy etc.

Kinds of law

Main kinds of laws are:
  1. Eternal law
    (It is only known by God)
  2. Divine law
    (Known to people through holy books)
  3. Natural law
    (Known to people by reasoning)
  4. Positive law/ Human mad law
    (Made by human beings for different purposes)

But the most popular classification is only
  1. Natural law
    It is a law followed by people on their consciousness or reasoning. But in this law one cannot find implementer or protector of law.
  2. Positive law/ Manmade law
    This is a law made by human beings to meet their needs. It can be further classified as:
    1. Enacted law -Legislations
    2. Precedents -Judge made law
    3. Customary law - Customs, traditions, usages etc
    4. Conventional law - Agreements ex: International laws
    5. Equity, justice and Good Conscience

What unjust law means?
  • One can find the question of just or unjust question regarding positive law only. Because only in case of positive law only one can find maker, implementer, protector of the law.
  • Unjust means �not just�, �unfair�, �bad� etc.

The problem of obedience to unjust law

Disobedience means refusal to obey the commands of law. Even if a law is bad on moral grounds, one is expected to obey law (Hobbes). However, natural law theory sanctions disobedience to bad laws (Locke and Rousseau).

Thus positivists hold that disobedience to law is not legally valid. But the decision to disobey the unjust laws rests with the individual consciousness.
The problem of obedience to unjust laws is based on the relationship between morality and law. While morality belongs to ethics, law relates to jurisprudence. The moral basis of obligation is a matter of personal choice.

Obligations are several kinds like individual, group, social, economical, religious, political etc. Except political obligation all other obligations are personal choices. In case of political obligation obedience to it is generally absolute. But showing obedience to law (political obligation) irrespective of its nature (just or unjust) will not give fruitful results. In this concept different political thinkers expressed different views.

According to moralists, a law is no law at all if it comes into conflict with morality. But moralist argument is rejected by positivists like Jeremy Bentham, Austin etc. According to positivist, the validity of law does not depend upon its morality. But Radbruch, a German jurist radically revised the positivist approach and stressed on importance of morality in law. However, the debate regarding morality and law has been continuing still today.

Revision of Positivism
Gustav Radbruch[1], a German jurist, radically revised the positivist approach to law in the post second world war period. He formulated the doctrine that the fundamental principles of human morality were part of the very concept of legality. A positivist enactment could not be valid if it went against the basic principles of morality.

Romantic Optimism[2]
Prof. Hart, a British jurist, described Radbruch�s theory of moral basis to law as �Hysteria�. This will lead to romantic optimism, since all values cannot be fused into a single system. However, Prof. Fuller, an American jurist, asserted that the object of law was to create order in society. He draws a distinction between order and good order. A good order is based on the demands of justice and morality. An order as such is to be considered in all governments, whether democratic or totalitarian. A good order must be based on value standard.

From the above it is well known to one is that there is a close connecting between morality and law.

Internal morality and external morality
There is no inherent contradiction between law and morality. The authority to make law must be supported by the moral attitude of the society. This is called the external morality of law. This support makes the law competent. The internal morality of law also is to be respected. These internal and external moralities of law influence each other in course of time. Thus, the connection between law and morality is necessary for popular obedience.

Duty and Aspiration
(Duty � external morality, Aspiration � Internal morality)
Morality of duty is different from the morality of aspiration. The morality of duty consists of basic rules necessary for the existence of society. But the morality of aspiration inspires mankind to work for better ideals. The morality of duty corresponds to the external morality of law. The morality of aspiration relates to the internal morality of law.

Thus, morality of duty and morality of aspiration are the external morality and internal morality of law. Both are necessary to guide human progress like torches in the darkness.

Distinguishing Features of Law and Morality
The following four are the distinguishing features of both law and morality:
  1. Moral rules are considered to be continuously important. But legal rules remain valid till they are repealed;
  2. Moral rules cannot be changed deliberately. But legal rules can be changed, enacted and repealed deliberately;
  3. Violation of moral rules have a voluntary character and can be excused;
  4. Moral rules exist on the demands of morality. But legal rules demand their habitual obedience.

Desire for Higher law

The desire of the people to have a higher law than positive law is based on the following grounds:
  • A feeling of discontent that the justice obtained under positive law is not adequate;
  • A desire to show that there are moral values which can be given a meaningful form; and
  • The conviction that a law which denies these values is self-defeating and nugatory (no value).
The problem of obedience to unjust laws is to be considered in this background.

Factors governing Disobedience
The decision to disobey a particular law depends upon the different factor.
Different political scientist, thinkers, philosophers, expressed their opinions in different ways and in different theories. The main schools are:
  1. Naturalists (based on morality)
    Naturalists advocates that human made law must accompany with natural law. Otherwise man can disobey such laws. But the decision to disobey the unjust laws rests with the individual consciousness.
  2. Positivists
    Positivists hold that disobedience to law is bad and not legally valid. Even if a law is bad on moral grounds, more over one is expected to obey laws.

Ex. Liven - relationship , Succession rights to daughters, right of property to illegitimate children etc. however,
The decision to disobey a particular law depends upon the following factors:
  1. Whether the whole legal order is good or has it got any short coming,
  2. What is the place of law to be disobeyed in the legal order,
  3. The degree of inequity of the law to be disobeyed, and
  4. What would be the consequences of disobedience to that law.

Methods of disobedience - Non �violent Disobedience
There are two methods to show disobedience they are through:
  1. Violent methods
  2. Non � Violent methods

Prof. Harrop Freeman argues that disobedience is not illegal if it is not violent. Non-violent disobedience is perfectly legal. It opposes only a particular law but respects the legal system. Non-violent disobedience is opposed to the letter of the law but not to the spirit of the law. Therefore, the non-violent form of disobedience to law does not disrespect law; but respects legal order. It is not ordained so much against the law as such, as it is against the letter of the law.

Gandhian philosophy of non-violent civil disobedience as a political weapon is based on the relation between individual morality and institutional legality. Civil disobedience is not opposed to the spirit of law. It is a public non-violent act of illegality performed for a moral purpose with willingness to accept the legal justice. It is neither fully legal, nor fully illegal. It may be illegal. But its illegality is marked by an anxiety to protect the legal order. Thus, law and morality are reconciled with each other.

Safe � guards against unjust laws
The Nation/State/ govt. may pass unjust laws having brute majority in the legislature. But in democracy there is several agencies work as safeguards against unjust laws. They are:
  1. Print, Electronic and Social media (create analytical knowledge to people)
  2. Opposition parties (through questions on policy)
  3. Judiciary (Judicial review power)
  4. People (pressure groups, interested groups etc. through agitations)
  5. Voluntary organizations etc.

The solution to unjust law - Co-incidence of Law & Morality
The solution to the problem of obedience to unjust laws lies in the relation between law and morality. For a long time morality came to be equated with Natural law. But the positivists denied the existence of Natural Law. Then morality remained largely vague, voluntary and individualist.

But law is specific, compulsory and institutional. Legal validity need not necessarily depend upon moral acceptance. Therefore, obedience to a law morally untenable is repugnant to the consciousness of the individual. Hence, law and morality should coincide with each other in order to secure the complete compliance of the citizens.

Famous person/ chief exponents of the concept of civil disobedience as protest to unjust law

Henry David Thoreau (1817 -1862)
M.K.C. Gandhi (1869 -1948)
Civil disobedience means the specific protest against the law of the State.

Henry David Thoreau
Henry David Thoreau was born in 1817 in Concord. He was an American essayist, poet, environmentalist, naturalist, individualist, tax resister, the slavery abolitionist and philosopher and so on. He was educated in Harvard University and became a close associate of Rupert Emerssion[3]. The influence of Rousseau, Jefferson[4] and Tolstoy[5] on Thoreau was impressive and substantial.

Thoreau was a philosophical rebel and asserted the right of the individual to resist the institutional conventions to enslave him. His approach to political obligation was based on the dignity and integrity of the individual.

Famous works
Henry David Thoreau is best known for his book Walden, a reflection upon simple living in natural surroundings, and his essay "Civil Disobedience" (originally published as "Resistance to Civil Government"), an argument for disobedience to an unjust state. Thoreau's books, articles, essays, journals, and poetry amount to more than 20 volumes.

Civil Disobedience
Thoreau�s famous and most popular book on �Civil disobedience� (1864 clearly explained the right of the individual to obey the dictates of his conscience rather than the dictates of the State. He preferred to go to jail rather than pay taxes to a government which condoned human slaver. His Civil Disobedience was a favourite book of Tolstoy and Gandhiji.

Thoreau Strong support and Respect for individual
Thoreau asserted, like many individualist, that the authority of the government is an impure one. But it must have the sanction and consent of the governed in order to be strictly just. The progress from an absolute to a limited progress is a true respect for the individual. Even the Chinese philosopher Confucius, regarded the individual as the basis of the empire. Thoreau declared, like Gandhijui and Jefferson that there would never be a really free and enlightened State until the State came to recognize the individual as a higher and independent power, from which all its power and authority were derived.

Thoreau�s views on Disobedience to Unjust laws
Thoreau had no faith in the existing laws. He called them unjust laws which strangle man�s freedom. He questioned their propriety and asked the people to break unjust law. Thoreau himself refused to pay poll (tax) for nearly six years. Consequently, he was put into a jail and physically tortured. But he did not acquiesce in the policy of government and remained undoubted in his challenge against it. He bravely smiled at the weakness of the government.

Thoreau recognized the Right of Revolution
With a view to redeeming the individual from the evil influences of the government, Thoreau recognized the necessity of the right of revolution. According to him, all men recognize the right of revolution, i.e., the right to disobey the government, when its tyranny and inefficiency are great and un-edurable. Thoreau advised the individual to obey the dictates of his conscience and determine the value of every question rather than to submit to the desires of the State.

Thoreau raised his voice for Abolition of Slavery
Thoreau rightly regarded the slavery as a bolt on the humanity. He considered John Brown[6], the slavery abolitionist, as a great hero. Thoreau advised the abolitionists to immediately withdraw their support from the Massachusetts government without waiting till they constituted a majority. He explained that respect for rights was more desirable than respect for law. Therefore, Thoreau boldly condemned the Government of Massachusetts (USA) on the question of slavery.[7]

Thoreau is not the anarchist � he is the supporter of Good Government
Though Thoreau showed all his anger against the evil governments he was not a moral enemy of the State and its organizations. As such he did not believe in a theory of a violent revolution. He is not the anarchist. He asked for a better government which educates masses, promotes free trade (but not capitalism) and keeps the country free. But the State should never coerce the individual. According to Thoreau, a good government is always based on the consent of the individuals and allows them to live honestly and comfortably.

Finally, Thoreau, following the footsteps of Rousseau and Tolstoy, stood for a simple life. He firmly believed in the dignity of human behavior, he tried to give a moral tinage to all human efforts and aspirations. He looked with utmost interest for all round development of individual personality. He was a rebel against the authoritarian rule of any government. Thoreau, is one of the most influential of all American writers.

M.K.C. Gandhi - Gandhism - Sarvodaya
Mohandas Karamchand Gandhi (2 October 1869 � 30 January 1948) was an Indian lawyer, anti-colonial nationalist, political ethicist, political, social and social reformer and a moral revolutionary. who employed nonviolent resistance to lead the successful campaign for India's independence from British Rule, and in turn inspire movements for civil rights and freedom across the world. The honorific Mah?tm? (Sanskrit: "great-Soule", "venerable"), first applied to him in 1914 in South Africa, is now used throughout the world. He is also famous as Bapu, Father of the Indian Nation. He never claimed that he is the leader and other should follow him.

He described his role as a citizen of the work. He lived and died for the Country. He was a holy man in politics. He insisted on the purity of both ends and means. In fact he was not a systematic academic thinker in the field of political philosophy. He expressed his opinions on various occasions. His expressions and thoughts later came to famous as Gandhian Principles, Gandhism. The concept of Gandhi is Sarvodaya (the Good of all).

Early life
Born and raised in a Hindu family in coastal Gujarat, western India, Gandhi was trained in law at the Inner Temple, London, and called to the bar at age 22 in June 1891. After two uncertain years in India, where he was unable to start a successful law practice, he moved to South Africa in 1893 to represent an Indian merchant in a lawsuit. He went on to stay for 21 years. It was in South Africa that Gandhi raised a family, and first employed nonviolent resistance in a campaign for civil rights during 1908 to 1913. For the first time he worked against racialism in South Africa. Later, on the request of Gopala Krishna Gokhale (the political guru to Gandhi) in the year 1915 at the age of 45years he entered in to Indian independence movement.

Gandhji was influenced by
Gandhi was influenced by different philosophers and by different philosophies. The influence of Lee Tolstoy, Ruskin[8] and Thoreau on Gandhi was significant and profound. He said that Truth is God. All religions in the world say about peace only. Gandhi was impressed by Karmayoga of Gita. According to him, Karmayoga means disinterested pursuit of one�s obligations and duties and that signified a cosmic and spiritual awareness.

Gandhiji famous works
Gandhi was a prolific writer. Most of his writings were in the form of articles, essays, and letters. Gandhi founded and edited several newspapers/journals including Indian Opinion, Young India, and Harijan.
  1. All Men are Brothers
  2. Diet and Diet Reform
  3. Gandhi's Autobiography- Abridged
  4. The Bhagavad Gita
  5. The Story of my Experiments with Truth - An Autobiography
  6. Trusteeship
  7. Truth is God
  8. Satyagraha in South Africa
  9. Unto this Last - A Paraphrase
  10. Swaraj or Indian Home Rule etc.

Gandhi�s approach to political obligation
Gandhi wanted to establish Rama Rajya on the basis of Karmayoga. He said that the concept of Utilitarianism (greatest happiness to greatest number) is not correct the society should adopt Sarvodaya (the good of all). He said that the existing society is to be gradually transformed into a Sarvodaya society by modifying and purifying the existing institutions still the people are worth to be free of the State and government.

According to Gandhi the present State can be modified gradually through non �violence, decentralization (Swaraj and Janshakti), cottage industries, common heritage of wealth, secularism and Lokniti (party less democracy) in the place of Raj Niti. Gandhiji considered the State as an organization of violence and force. The coercive character of the State shall be repelled. Gandhiji explained his philosophy on civil disobedience in his famous book Indian Home Rule. His approach on political obligation was based on Satyagraha (Civil disobedience and non � cooperation), Non-violence, Truth and Sarvodaya.

Technique of Satyagraha
Satyagraha is Gandhi�s unique and distinct contribution not only to the technique of revolution, but also to the store of human knowledge. Satyagraha means the righteous indignation against the unjust laws of the civil government. Gandhiji invented the new name �Satyagraha�, and inducted it in South �African politics first and later in Indian politics. Gandhiji evolved a way of resisting evil through Satyagraha. It is a new philosophy of action. He said that Satyagraha is a weapon of the strong and the bravest. It is a powerful technique of evolutionary revolution. He explained the birth and meaning of Satyagraha in his book the Story of my experiments with truth.

According to him, Satyagraha is a vindication of truth by bearing witness to it through self suffering, in other words, love. Satyagrahi is a person who adopts satyagraha as method against unjust law. Satyagrahi proceeds through the process of identification and involvement. He or she establishes his/ her spiritual identity with the opponent and awakens in him a feeling that he cannot hut him without hurting his own personality. Satyagrahi kindles �the divine spark in the opponent�s soul�. Therefore, Satyagraha is rightly regarded as the �soul force� or the �love of force.

Satyagraha must be qualitative not quantitative
Gandhiji recommended the practice of Statyagraha by a select few in the first instance. Quality should be the prime consideration and the selection of the laws to be broken should be made not by each Satyagrahi himself, but by the leader or some centrally constituted body of expert satyagrahis.

Satyagraha techniques
Civil disobedience and non cooperation are the main techniques of Satyagraha.
  1. Civil disobedience
    Gandhiji defined civil disobedience as the breach of unmoral statutory enactments (unjust laws). It is a complete effective and bloodless substitute of armed revolt. It signifies the resister�s out Lawry and a civil, i.e., non-violent manner. He said that civil disobedience was a just and moral duty of citizens against an unjust, autocratic and imperialistic political order. Gandhiji put greater emphasis on the word �civil� than on obedience so that the movement might not become uncivil and violent. Civil disobedience is the last stage and the most drastic from of non � cooperation.

    Objects/Aims of Civil Disobedience
    According to Gandhiji, disobedience to be civil must be sincere, respectful, restrained, never defiant, must be based upon some well understood principle, must not be capricious and must have no ill will or hatred behind it. Its use must be guarded by all conceivable restrictions. Every possible provision should be made against an outbreak of violence or general lawlessness. Its area, as well as its scope, should also be limited to the barest necessity of the case. Gandhiji says not only ends but also means should be pure.
    Example: the Civil Disobedience movement done by Gandhiji in India during the years 1930 -1931 which is famous as Salt Satyagraha.
  2. Non-Cooperation
    Gandhiji successfully employed the techniques of non-violent non cooperation as an effective means of Civil Disobedience to unjust laws of an evil government. Oppression and exploitation are made possible by willing or forced cooperation of the oppressed in their own exploitation or exploitation or oppression through cupidity, ignorance or fear. If all the people ceased completely to cooperate with an unjust or tyrannous system, it must completely collapse. Even the most despotic government cannot stand except for the consent of the governed, which consent is often forcibly procured by the despot. Immediately the subject ceases to fear the despotic force, his power is gone.

Non � cooperation with the evil �doer was a mild form of Satyagraha. It was simple. Greater quantum of risk which was required as in case of civil disobedience was not required in case of non- cooperation movement. The number of participants was lesser in this movement. Comparing with non- cooperation civil disobedience was more success. However, non � cooperation movement sown the seeds of revolution in the minds of Indians, and paved the way to further movements in future. The non � cooperation movement had objectives viz. the remedying of two specific objectives viz. the remedying of two specific �wrongs� and the demand for a vague swaraj.

Example:� the non cooperation movement lead by Gandhiji in India during the years 1920 -1922.

What is true of governments also applies to other exploiting groups and organizations. Non �cooperation with evil takes the form of self purification in the Satyagrahi himself and the withdrawal on his part of the evil. No � cooperation thus, stresses the purity of means and the purity of ends as well as the purity of motives and intensions.

According to Gandhiji non-violence is the law of our species as violence is the law of the brute. For Satyagraha, non � violent non cooperation and civil disobedience are nothing but new names for the law of suffering. Thus, Gandhiji gave ancient solution for modern problems. He is the philosophical anarchist. Gandhiji aim is to achieve Sarvodaya (the good of all).

It is true that the State originated to fulfill basic necessaries to individual and has been continuing till today with an aim to provide welfare to its subjects. Thus, the main object and aim of the State is to provide welfare to the people. But now a day�s governments acting handedly with several selfish motives by neglecting basic moral values so, in this scenario it is the moral and ethical duty of the every citizen to raise their voice against unjust laws and work for just, fair and reasonable laws as rightly said by Gandhiji.

  1. Gustav Radbruch (21 November 1878 � 23 November 1949) was a German legal scholar and politician. He served as Minister of Justice of Germany during the early Weimar period. Radbruch is also regarded as one of the most influential legal philosophers of the 20th century. after the end of the Second World War in 1945, he resumed his teaching activities, but died at Heidelberg in 1949 without being able to complete his planned updated edition of his textbook on legal philosophy. In September 1945, Radbruch published a short paper F�nf Minuten Rechtsphilosophie (Five Minutes of Legal Philosophy), that was influential in shaping the jurisprudence of values (Wertungsjurisprudenz), prevalent in the aftermath of World War II as a reaction against legal positivism
  2. Philosophers explained the relation between natural law (morality ) and positive law with the help of four principles like Romantic, tragedy, irony, comedy (Romantic � irony, Tragedy � Comedy) (Optimism based on the Analogy of Innocence (faith and reason)- ROMANTIC MODE and Optimism based on the Analogy of Experience (skepticism and community)-IRONIC MODE
  3. (August 20, 1899, in Rye, NY � February 9, 1979, in Cambridge, MA) was a professor of political science and international relations. He served on the faculty of Harvard University for forty-three years and served in various U.S government positions.
  4. Thomas Jefferson (April 13, 1743 � July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He previously served as the second vice president of the United States from 1797 to 1801. The principal author of the Declaration of Independence, Jefferson was a proponent of democracy, republicanism, and individual rights, motivating American colonists to break from the Kingdom of Great Britain and form a new nation; he produced formative documents and decisions at both the state and national level.
  5. Lev Nikolayevich Tolstoy (9 September 1828 � 20 November 1910), usually referred to in English as Leo Tolstoy, was a Russian writer who is regarded as one of the greatest authors of all time. He received multiple nominations for the Nobel Prize in Literature every year from 1902 to 1906 and nominations for Nobel Peace Prize in 1901, 1902 and 1910 and the fact that he never won is a major Nobel prize controversy.
  6. John Brown (May 9, 1800 � December 2, 1859) was an American abolitionist. Brown advocated the use of armed insurrection to overthrow the institution of slavery in the United States. He first gained national attention when he led small groups of volunteers during the Bleeding Kansas crisis of 1856. He was dissatisfied with the pacifism of the organized abolitionist movement: "These men are all talk. What we need is action�action!" In May 1856, Brown and his supporters killed five supporters of slavery in the Pottawatomie massacre, Brown's actions as an abolitionist and the tactics he used still make him a controversial figure today. He is both memorialized as a heroic martyr and visionary, compared sometimes with Christ, and vilified as a madman and a terrorist.
  7. Abraham Lincoln (February 12, 1809 � April 15, 1865) was an American statesman and lawyer who served as the 16th president of the United States (1861�1865). Lincoln led the nation through its greatest moral, constitutional, and political crisis in the American Civil War. He preserved the Union, abolished slavery, strengthened the federal government, and modernized the U.S. economy. However, The Thirteenth Amendment (Amendment XIII) to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. In Congress, it was passed by the Senate on April 8, 1864, and by the House on January 31, 1865. The amendment was ratified by the required number of states on December 6, 1865.
  8. John Ruskin (8 February 1819 � 20 January 1900) was the leading English art critic of the Victorian era, as well as an art patron, draughtsman, water colourist, philosopher, prominent social thinker and philanthropist.
    He wrote on subjects as varied as geology, architecture, myth, ornithology, literature, education, botany and political economy.
    Unto This Last is an essay and book on economy by John Ruskin, first published between August and December 1860 in the monthly journal Cornhill Magazine in four articles. Ruskin says himself that the articles were "very violently criticized", forcing the publisher to stop its publication after four months. Subscribers sent protest letters, but Ruskin countered the attack and published the four articles in a book in May 1862. The book greatly influenced the nonviolent activist Mohandas Gandhi

Written By: Dr. Koneru Anuradha - Assistant Professor in Law, SVD Siddhartha Law College, Kanuru, Vijayawada, Krishna DT, AP State, India. Pin code: 52007.
Phone no. 9491448532. Email: [email protected]

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