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Unwinding The Definition And Schools Of Law Critically

[1]To explain a thing is easier than to define it, to give a definition of law is comparatively a more difficult task due to many reasons:
First, in all the societies-from primitive to those which have reached the highest peak of civilization-in one or the other form, there is law. The difference between the laws of two societies is not only that of the stage of development but it is in characteristics also.

The term 'law' means and includes different things in different societies. The corresponding word for the term law in Hindu system is 'Dharma', in Islamic system it is 'Hukum', in Roman it is 'Jus', in French it is 'Droit' and in German it is 'Richt'. These words convey different meanings and ideas. Any definition of law which fails to include all these meanings would not be a good definition.

Second, different definitions of the same thing may be given if it is viewed from different angles and one angle does not take into consideration the views from different angles. Thus the definition given by a lawyer, a philosopher and a theologian would greatly differ. The various schools have defined it on the basis of its nature, some concentrating mainly on its sources, some in terms of its effect on the society, some .in terms of its ends or purpose and so on.

Third, as we all know, law is a social science. It grows and develops with the society. To keep pace with the society, the function and scope of law remains always changing. Therefore, it is very difficult for a definition of law given at a particular time to remain valid for all times to come. A definition which is most satisfactory today might prove narrow and incomplete tomorrow.
It is due to this difficulty that Keeton observes that to attempt to establish a single satisfactory definition of law is to seek to confine Jurisprudence within a strait jacket from which it is continually striving to escape.

We will find �n�no. of definitions of the very word law, as there is no single and supreme definition of law and all the definitions are true in their own sense.

Definition Of Law

Etymology of the word law - In old English �Lagu i.e. law, ordinance, rule, regulation from old norse �lagu law collective Plural of �Lag is layer, measure, stroke �Literally� something laid down of fixed.

As per the Greek Philosopher Aristotle:
The law is reason, free from passion
. In lay man�s term, law is the set of rules laid down by a governing authority. According to Britannica, law is [2] �the discipline and profession concerned with the customs, practices, and rules of conduct of a community that are recognized as binding by the community. Enforcement of the body of rules is through a controlling authority.

As per my understanding Law is the guiding principles in the society which helps in better cohabitation of people in a sovereign and for management of resources as per the societal and material needs, which changes as per the requirements of time.

[3]The core elements of law are as follows:
  1. Law is a body of rules
  2. Law is for the guidance or conduct of persons � both human and artificial
  3. Law is imposed
  4. Law is enforced by the executive
  5. The state
  6. Two basic ideas involved in law:
    1. To maintain some form of social order in a group
    2. To compel members of the group to be within that order
  7. Law is made to serve some purpose which may be social, economic or political
  8. Law is not static, it keeps changing with time

However, we will try to understand the various interpretation of the term Law by the various

Schools Of Jurisprudence.

  • Analytical School
  • Historical School
  • Sociological school
  • Philosophical School
  • Realist school

[4]Analytical School Of Jurisprudence

Jurists under this school of law are also known as positivists or analysts who had little to do with vague and abstract notions of natural law. These were the believers of Analytical or Positive School, who propounded positivism. (The term 'positivism' was invented by Auguste Comte, a French thinker.)

The exponents of this school are neither concerned with the past nor with the future of law but with the law as it exists, i.e. with law 'as it is' (Positrum). Its founder was John Austin and hence it is also called Austinian School.

The purpose of analytical jurisprudence is to analyse the first principles of law without reference either to their historical origin or development or their validity. Another purpose is to gain an accurate and intimate understanding of the fundamental working concepts of all legal reasoning.

The positive law takes law as the command of the sovereign. It puts emphasis on legislation as the source of law. It regards law as a closed system of pure facts from which all norms and values are excluded.

  • Bought about precision in legal thinking
  • Provided us with clear and scientific terminology
  • Excluded external considerations which fall outside the scope of law

Chief Exponents:
  1. Bentham
  2. Austin
  3. Salmond
  4. Holland
  5. Hart


Law as defined by Austin is the aggregate of the rules set by men as political superior or sovereign to men as politically subject. [5]In other words, law is the command of the sovereign, It obliges a certain course of conduct or imposes a duty and is backed by a sanction. Thus, the command, duty and sanction are the three elements of law.

  1. All Law is not a command.
  2. Law is not a duty, it is rather enabling than restrictive.
  3. This definition does not cover customs and international law.
  4. Also his definition ignores the social aspect of law and psychological factors which secure its obedience.
  5. It has no universal application.

  1. This definition lays down precise boundaries within which jurisprudence is to work.
  2. This definition completely applies to English law.


Law as per Salmond is that it is body of principles recognised and applied by State in the administration of justice.In other words, the law consists of rules recognised and acted on by court of justice. There are two main implications of this definition. First, that to understand law one should know its purpose. Second, that to ascertain the true nature of law one should go to the courts and not to the legislature.

  1. He confuses justice with law: Law is actually in force whether it is evil or good, whereas justice is the ideal founded in moral nature of man.
  2. Law is defined in terms of purpose: Law serves many ends and by confining it only to pursuit of justice, Salmond has narrowed the field of law.
  3. Courts not legislation: conventions are not included in this definition because they are not enforced by Courts. Meaning of courts is not defined. Certain areas of law, like customs, international law etc. can also not be incorporated since even these are not enforceable by law.

This definition bought about a change in analytical positivist view.
  1. It expanded the boundaries of jurisprudence that was narrowed by Austin.
  2. It gave importance to courts.
  3. By including its purpose and emphasizing the role of Court in its enforcement, he gave law a practical shape.

Historical School Of Jurisprudence

[6]According to this theory � the historical school of law, the law is the result of past forces and past influencers. Moreover, the law is built and grown on the general consciousness of people. The consciousness, however, starts from the very beginning of the society.

In addition, some of the factors that affect this long historical development are as follows:
  1. Society and social customs.
  2. Many religious and convention principles.
  3. Also, the economic needs of society play a crucial role.
  4. Last but not the lease, the needs, and desires of the citizens.

Historical School of Jurisprudence believes that this law comes from the changing needs of people in society. Therefore, habits and customs are the main sources of the Historical School.

Historical school arose as a reaction against the natural law theories. Natural school of law believes that the law originates from a divine supreme power. Another term for Natural Law is Eternal law. And it is also believed to be in existence since the beginning of the world as we know it. Therefore, it closely associates with the morality, teachings and intention of God. Hence, it is safe to say that the Indian constitution has significant relevance of the natural law in its respective publications. On the contrary, historical school of Jurisprudence focuses on the formation of law by people not by some divine origin.

[7]Historical school of jurisprudence believes that law is an outcome of a long historical development of the society because it originates from the social custom, conventions religious principles, economic needs and relations of the people.

According to this theory, the law is the product of the forces and influence of the past. Law is based on the general consciousness of people The consciousness started from the very beginning of the society. There was no person like sovereign for the creation of law.

Chief Exponents:
  1. Karl Von Savigny
  2. Sir Henry Maine
  3. Montesquieu
  4. Georg Friedrich Puchta
  5. Edmund Burke

Karl Von Savigny

Savigny is regarded as the founder of the historical school during the years 1779�1861. According to Savigny, the central purpose of this school was to establish that a nation�s customary law is its truly living law. And, moreover, the task of jurisprudence is only to uncover and expose this law.

He has given the Volksgeist theory. According to this theory, the law is based upon the general will or free will of common people. He says that law grows with the growth of Nations increases with it and dies with the dissolution of the nations. In this way law is a national character. The consciousness of people.

Its merit is that it shows that law must change with the changes in society. It clearly believes that if a law is not according to the will of the people, it will never be obeyed. In this way, it supplemented the analytical school of law.

Savigny�s approach to law gave birth to comparative jurisprudence which has been accepted as one of the most important branches of legal studies in modern times.

Charles Allen criticized Savigny�s view that law should be found or based on the customs. Allen was of the view that customs are not the outcome of common consciousness of people. But they are the outcome of the interest of a powerful and strong of a ruling class. For example, slavery which was recognized and prevailed in certain societies by the powerful classes of society.

Prof. Stone criticized the Savigny and says that he (Savigny) ignored the efficiency of the legislation and planned law and social change. And over emphasized on the consciousness of people. For example, In India, the abolition of Sati and widow�s remarriage are brought in to change because of powerful and effective legislation.
  1. Savigny�s Volksgeist helped many nations to promote its ideologies where Nazi twisted it by giving a racial colour. Marxists used it giving economic interpretations whereas; Italy used it to justify fascism.
  2. His attitude towards anti-codification of German law frustrated the growth of German law for several decades.
  3. Believes that customs are the best source of law, which is not correct as there are many customs like slavery, anti-woman custom, labour which are originated to accomplish the selfish interest of those in power.
  4. His force on Volksgeist as the only source of law is not true, as he ignores the other major sources of like precedents, legislation and other external affairs.

Georg Friedrich Puchta

[8]Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical school of Jurisprudence. Georg Friedrich Puchta�s ideas were more logical and improved than Savigny�s ideas. He traced the development and evolution of law from the very beginning. His ideas mainly focused on the situation when conflict arises between general will and individual will. In the conflict between general will and individual will, the state came into existence. And find out the midway to resolve the conflict.

The main concept of Puchta�s ideas was that �neither the people nor the state alone can make and formulate laws. Both State and individual are the sources of law.

  1. Puchta gave twofold aspects of human will and origin of the state.
  2. Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and made them more logical.

  1. In order to achieve a middle ground Puchta merged the original ideas of Savigny to more general lines, deviating from its founder�s roots.
  2. The very fact of incorporating the role of state in individual consciousness is another factor being criticised by our jurists of the same school.

Sociological School Of Jurisprudence

[9]The Sociological school of Jurisprudence advocates that the Law and society are related to each other. This school argues that the law is a social phenomenon because it has a major impact on society. The Sociological school came out as a reaction against the laissez-faire because sociological school advocates the balance between the welfare of the state and individual interest.

  1. Sociological School of Law is emphasis more on the functional aspect of law rather than its abstract content.
  2. They consider law as a social institution essentially interlinked with other scientists and the direct impact of the law on society with its formation according to social needs.
  3. Sociological School of Law completely neglects positivism i.e. the command of sovereign and also historical jurisprudence.
  4. Sociological jurists describe the perception of the law in different ways like the functional aspect of law or defining the law in terms of court�s rulings and decisions with a realistic approach of law.

Chief Exponent:
  1. Montesquieu
  2. Auguste Compte (regarded as founding the father of the sociological school of law)
  3. Albert Spencer
  4. Ihering,
  5. Ehrlich
  6. Duguit
  7. Roscoe Pound

Roscoe Pound

He was one of the most leading and important jurists who developed American sociological jurisprudence is a systematic manner. He treated law as a means of affecting social control and his contribution to jurisprudence is great. Roscoe Pound gave stress on the functional aspect of law. He defines law as containing the rules, principles, conceptions and standard of conduct as a developed technique of social engineering. The main function of law is to satisfy the maximum number of people. Not only this function but also to reconcile the conflict in the interest of individuals and society.

Roscoe Pound gives the Theory of Social Engineering in which he compared lawyers with the Engineers. According to Pound, �Law is social engineering which means a balance between the competing interests in society, in which applied science is used for resolving individual and social problems.

Roscoe Pound in his Interest Theory mentioned the three kinds of interest.
  1. Private/Individual Interest
  2. Public Interest
  3. Social Interest
To avoid the overlapping of the interests, he put boundaries and divide the kinds of interests.

According to Roscoe Pound, every society has certain basic assumptions for proper order and balance in society. These assumptions are implied and not in expressed form and are called as Jural Postulates of the legal system of that society. These assumptions of man related to the reference for what they want from the law or legal system or we can say that it is the expectation of a man from the law. So, these Jural Postulates are a sort of ideal standards which law should pursue in society for civilised life and with the changes in society, the jural postulates may emerge or originate in society.

He has mentioned five kinds of jural postulates:
  1. In a civilised society, man must be able to assume that others will not commit any intentional aggression on him.
  2. In a civilised society, man must be able to assume that they must control for beneficial purposes. E.g.- control on whatever they discover or create by their own labour.
  3. In a civilised society, man must be able to assume that those with whom they deal as a number of societies will act in good faith.
  4. In a civilised society, man must be able to assume that the people will act with due care and will not cast unreasonable risks of injury on others.
  5. In a civilised society, man must be able to assume that certain people must restrain from doing harmful acts under their employment and agencies which are otherwise harmless to them.

Concept of social engineering and balancing of interest presupposes a fairly organised and matured types of society, criticised by Stone.

It requires lot of practise, it mechanized the social growth and individuals desires which is impracticable. Desires are human rights instincts they cannot be organised as contemplated.

Rudolf Von Ihering

Ihering was another sociological jurist known for his monumental work �spirit of the law�. He favours the factor that social interest of society must have a priority over an individual�s interest and the purpose of the law is to protect the interest of society, that is why his theory is known as �Jurisprudence of Interest� which emphasises on the sociological aspect of Sociological School of Law

  1. Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives birth to law and the role of law is to harmonize the conflicting interests of individuals for the purpose of protection of interest of society. He gave importance to living law which develops with the struggles of society.
  2. Law as a means to serve Social Purpose: According to him, the ultimate goal of the law is to serve a social purpose. It is the duty of the state to promote social interests by avoiding various clashes between social and individual interests. According to him, �law is coercion organised in a set form by the state, which means that he justified coercion by the state for the purpose of social welfare.
  3. Law as one of the means to control society: Law alone is not a means to control society, there are some other factors also like climate, etc. Like Bentham, Ihering favours the interest in the achievement of pleasure and avoidance of pain but for the society, that�s the reason that Ihering theory is also known as the theory of �Social Utilitarianism.

  1. [10]He has been criticized for lack of a reasonable objective criterion for selection and evaluation of interest.
  2. Sociological jurisprudence depends upon the welfare of the society i. e; question arises when there is no welfare then how can we say that the society is the welfare society.

Philosophical/ Natural School

[11]The philosophical or ethical school concerns itself chiefly with the relation of law to certain ideals which law is meant to achieve. It seeks to investigate the purpose for which a particular law has been enacted. It is not concerned with its historical or intellectual content. The jurists regard law neither as the arbitrary command of a ruler nor as the creation of historical necessity. To them, the law is the product of human reason and its purpose is to elevate and ennoble human personality.

It is interchangeably used with Natural Law school but it is a part of it but also part.

Natural School:
It believes that law had been in existence since beginning and nothing is man-made. It deals with Divinity as well as Rationality.

However Philosophical School talks about law of logic and the law which is made by sense and logic and hence it is the subset of Natural Law

  1. it dwindled offering approach to inherent privileges of man and the state
  2. The natural law hypothesis altered the current organisations and held that �social contract� was the premise of the general public.
  3. utilised natural law hypothesis to propagate reactionary development and legitimise business as usual for the safeguarding of harmony and insurance of people from never-ending struggle and disarray

Chief Exponent:
  1. Hugo Grotius
  2. Immanuel Kant
  3. Hegel
  4. John Rawls

Hugo Grotius

He is known as the founder of Philosophical school of jurisprudence as he was the first person to demarcate philosophical school from natural school, and first one to talk about. Grotius removed the natural law from the jurisdiction of moral theologians and made it the business of lawyers and philosophers, by asserting that by their very nature, natural laws were authoritative in themselves, with or without faith in God.

  1. He held that the moral ethics of natural law applied to all social and rational beings, Christian and non-Christian alike.
  2. Grotius also promoted the concept of Just War as a war which was required by natural, national and divine law under certain circumstances. He developed a series of rules for right conduct of war, based on the principle that actions in a war should serve the right.
  3. He demarcated philosophical school from natural school

  1. The implications of this criticism are that there can be no meaningful doctrine of natural rights, and that rights not only imply duties, but are essentially false descriptions of actual duties , which are imposed either by divine fiat or from the law making authority of the state
  2. Philosophical school has been criticised for being subjective in terms of giving more preferences to values and ethics which can fall prey to bias at times.

Thomas Hobbes

Thomas Hobbes founded a social contractual theory of legal positivism. He declared that all men could agree that what they sought (happiness) was subject to contention, but that a broad consensus could form around what they feared (violent death at the hands of another, and loss of liberty and personal property).

Natural law was defined as the way in which a rational human being, seeking to survive and prosper, would act. It could be discovered by considering humankind's natural rights; previous interpretations had derived natural rights by considering the natural law.

  1. In Hobbes' opinion, the only way that natural law could prevail was by all men submitting to the commands of a sovereign. The ultimate source of law now became the sovereign, who was responsible for creating and enforcing laws to govern the behaviour of his subjects. Since the sovereign's decisions need not be grounded in morality, the result was legal positivism, the concept that law was created by the state and must therefore be obeyed by the citizens belonging to that state.
  2. In Thomas Hobbes's treatise Leviathan, natural law is a precept, or general rule, discovered through reason, by which a man is forbidden to do anything which is destructive of his life, or takes away the means of preserving his life; and forbidden to omit doing anything which he thinks may preserve his life. Hobbes defines nine Laws of Nature.

  1. The first law of nature as per Hobbes is that �every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war. Which is criticised for devising violent ways of obtaining peace being ironical in its own sense.
  2. All his Laws are criticised for being idealistic and lacking practical grounds of human nature and behaviour in society.

Realist School

[12]This school is known as �realist� because it focuses on approach that studies law as it is in the actual working and its effects ahead. This school rejects traditional definition of law and also avoids any dogmatic formulation and fully concentrates on decisions given by the courts.

The thesis of realists is based on the notion:
Law is what the psychology of courts determines - the aggregate of the item of judicial and official actions.

��Law is what the judges decide. They emphasize the element of uncertainty in law and part played by the personal characteristics of the judge. Law is defined not as a set of the legal propositions, but in term of the official action. They say that �certainty of law� is a myth. They plead for a comprehensive approach and examination of all the factors that lead to reaching a decision.

In actual sense, there is no realistic school. It is known as �realism� that is actually a movement which consists of thought and works in law.

Realism means a conceptual thesis on law in chunks and as a means of some social ends. It is implied in a particular society where changes are seen faster than the law.

It also assumes a type of divorce which is temporary in nature of �is� and �ought� so as to achieve the purpose of a study. It means all the purposes that are ethical in nature for the observer must underline the law are ignored and are not at all allowed to blur the vision of observer.

It also creates a sense of distrust in the traditional legal values and also the concepts designed so far as they appear to be described what either courts or common people are actually doing.
Lastly, it also focuses largely on the evaluations of any parts of law in respect to its effect.

There are two types of the Realist School. The first one is the American Realist School and the second is the Scandinavian Realist School.

American Realist School Chief Exponent:

  1. Holme
  2. Gray
  3. Jereme Frank
  4. Karl Llewellyn

Scandinavian Realist School Chief Exponent:

(Critique of the metaphysical foundation of law. They have put forth a philosophical justification.)
  1. Karl Olivercrona
  2. Lundstedt
  3. Ross
  4. Hagerstrom


His emphasis on the fact that the life of the low experience, as well as logic, and his view of the law as predictions of what the court will decide stressed the empirical and parametric aspect of law. And he said that, if one wishes to know what the law is, then one should view it through the eyes of a bad man who is only concerned with what will happen to him if he does certain things.

The traditional description of law is that it consists of rules from which deductions are made. According to Holmes, the law is what courts (or other officials) do, not what they say. Until a court has pass judgment on certain facts, there is no law on the subject yet in existence, for opinions of a lawyer is only a guess as to what the court will decide.

  1. Holmes is a towering figure in American legal thought for many reasons, but what the realists drew most from Holmes was his famous prediction theory of law, his utilitarian approach to legal reasoning, and his realist insistence that judges, in deciding cases, are not simply deducing legal conclusions with inexorable, machine-like logic, but are influenced by ideas of fairness, public policy, and other personal and conventional values.
  2. Holmes attacks formalist approaches to judicial decision making and states a pragmatic definition of law:
    The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law
  3. Holmes attacks formalist approaches to judicial decision making and states a pragmatic definition of law:
    The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. that it is a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions

  1. Hart pointed out that if a law is just a prediction of what courts will do, a judge pondering the legal merits of a case before him is really asking, How will I decide this case? As Hart notes, this completely misses the fact that judges use legal rules to guide their decisions, not as data to predict their eventual holdings.
  2. Many critics have claimed that the realists exaggerated the extent to which law is riddled with gaps, contradictions, and so forth.[15] The fact that most legal questions have simple, clear-cut answers that no lawyer or judge would dispute is difficult to square with the realists' strong claims of pervasive legal indeterminacy.
  3. Other critics, such as Ronald Dworkin and Lon Fuller, have faulted legal realists for their attempt sharply to separate law and morality.

Karl Llewellyn

According to Llewellyn Realism is not a school but it can be called as a branch of sociological School.1 It concentrates on the actual working and effect of law and is, therefore, called the realist school.

  1. Realism isn�t so much another school of jurisprudence as another philosophy in jurisprudence.
  2. Realists see the law as robust and not as static. They view the law as serving specific social closures and concentrate any given cross-segment of it to discover to what degree these finishes are being served.
  3. Realists, with the end goal of perception of working of any piece of the legal framework, acknowledge aseparation of is from should�. This implies the moral purposes which, as per the spectator, ought to underlie the law are overlooked and are not permitted to obscure the vision of the eyewitness.
  4. Realism accentuates the social impacts of laws and legal decisions.

  1. The realists and jurists have underestimated the importance of the legal principles and rules regarding the law. They used to think that law never was, but always was a puzzle of unconnected decisions.
  2. Their concentration is ideally on litigation, but the point is there is a bigger point that never comes in front of the courts.
  3. These realists and jurists had also launched a serious attack on the juristic complications and myth of certainty. But, in actual sense we found out that a huge amount of certainty and bunch of transactions regulated under this basis.
  4. They all have put strong emphasis on a factor which is human in nature. No doubt, it plays quite a huge part but that does not mean that the judicial determinations are the result of a Judge�s personality.
  5. This approach of realism of American Jurists is mostly based upon and actually concerned with their own setting and thus not giving a universal method. These methods can only be applied at a society where social forces have played a bigger role in making law as common law systems.

Axel Hagelstorm

H�gerstr�m is considered to be the founding father of the Scandinavian school of legal realism . rejected metaphysics in their entirety.

  1. His opinion was that words such as �right� and �duty� were basically meaningless as they could not be scientifically verified or proven. They may have influence or be able to direct a person who obtains such a right or duty but ultimately, if they could not stand up to a factual test, they were mere fantasies.
  2. Similarly, H�gerstr�m regarded all value judgements as mere emotional expressions using the form of judgements without being judgments in the proper sense of the word.
  3. H�gerstr�m attacked various words and legal concepts in his writings so as to prove they could not stand up to scientific application.

  1. H�gerstr�m's critics to characterize his philosophy as value nihilism - a label that was invented by journalists and later endorsed by some of H�gerstr�m's less orthodox followers
  2. Nihilism is the belief that all values are baseless and that nothing can be known or communicated. It is often associated with extreme pessimism and a radical skepticism that condemns existence. A true nihilist would believe in nothing, have no loyalties, and no purpose other than, perhaps, an impulse to destroy.

Karl Olivercrona

A Pupil of Axel, who believed whatever is written legal should be seen a reference, it should not be used in its entirety and it�s the judges job to take reference from the written set and apply it accordingly in situations and cases.

  1. His writings emphasise the psychological significance of legal ideas.
  2. Olivecrona, has emphasised on a nature which contains an applicability that is universal in nature.
  3. He stressed on the importance of a monopoly of force as the fundamental basis of law.
  1. He has been criticised for completely disregarding the written laws and leaving it completely on judge�s discretion as it may then be prone to bias and can hamper welfare of public in large.
  2. He is also criticised for exaggerating the role of judges and their view-points without substantial explanation.
  1. Jurisprudence and Legal Theory by V. D. Mahajan page 5th edition reprint 2015 chapter XI , page 117
  2. Britannica, T. Editors of Encyclopaedia (2019, August 27). Law. Encyclopaedia Britannica.
  5. Jurisprudence and Legal Theory by V. D. Mahajan page 5th edition reprinted 1993 Chapter II Page no.- 31
Written By: Teesha - Student at University School of Law and Legal Studies, GGSIPU

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