David M. Smolin, A House Divided? Anabaptist and Lutheran Perspectives on the Sword, 47 J. Legal Educ. 28 (1997).
From Smolin’s introduction:
“Christian law teachers deal with one question that would be no different if we taught history or sociology: what does Jerusalem (our religious faith) have to do with Athens (the academy)? But, because we are law teachers, there is an additional question we must answer: what does Jerusalem have to do with Rome (the state)? . . . We are children of the notion that an entire civilization--including the sword, including government, including force and war--can be Christian, even though we worship a Lord who declined a political kingdom and went to die on the cross. Many theological traditions have wrestled with this dilemma; I will emphasize here the Lutheran and Anabaptist perspectives, and then compare them to Roman Catholic and Calvinistic approaches."
Showing posts with label Law School (Jurisprudence). Show all posts
Showing posts with label Law School (Jurisprudence). Show all posts
The Tradition of Natural Law: A Philosopher's Reflections
Yves R. Simon, The Tradition of Natural Law: A Philosopher's Reflections (Fordham Univ. Press 1992) (reprint).
From the publisher:
The tradition of natural law is one of the foundations of Western civilization. At its heart is the conviction that there is an objective and universal justice which transcends humanity’s particular expressions of justice. It asserts that there are certain ways of behaving which are appropriate to humanity simply by virtue of the fact that we are all human beings. Recent political debates indicate that it is not a tradition that has gone unchallenged: in fact, the opposition is as old as the tradition itself.
By distinguishing between philosophy and ideology, by recalling the historical adventures of natural law, and by reviewing the theoretical problems involved in the doctrine, Simon clarifies much of the confusion surrounding this perennial debate. He tackles the questions raised by the application of natural law with skill and honesty as he faces the difficulties of the subject.
Simon warns against undue optimism in a revival of interest in natural law and insists that the study of natural law beings with the analysis of “the law of the land.” He writes not as a polemicist but as a philosopher, and he writes of natural law with the same force, conciseness, lucidity and simplicity which have distinguished all his other works.
From the publisher:
The tradition of natural law is one of the foundations of Western civilization. At its heart is the conviction that there is an objective and universal justice which transcends humanity’s particular expressions of justice. It asserts that there are certain ways of behaving which are appropriate to humanity simply by virtue of the fact that we are all human beings. Recent political debates indicate that it is not a tradition that has gone unchallenged: in fact, the opposition is as old as the tradition itself.
By distinguishing between philosophy and ideology, by recalling the historical adventures of natural law, and by reviewing the theoretical problems involved in the doctrine, Simon clarifies much of the confusion surrounding this perennial debate. He tackles the questions raised by the application of natural law with skill and honesty as he faces the difficulties of the subject.
Simon warns against undue optimism in a revival of interest in natural law and insists that the study of natural law beings with the analysis of “the law of the land.” He writes not as a polemicist but as a philosopher, and he writes of natural law with the same force, conciseness, lucidity and simplicity which have distinguished all his other works.
Beyond Positivism: A Theological Perspective
Frank S. Alexander, Beyond Positivism: A Theological Perspective, 20 Ga. L. Rev. 1089 (Summer 1986).
From the author's introduction: Contemporary American legal scholars who oppose positivism have not generally attempted to set forth in any systematic way their own theories of human nature. They have sometimes discussed questions relating to individuality, to community, or to the pur- posive nature of existence, but they have generally neglected at least one of these three topics. To illustrate this, and to explore its implications, I have chosen three examples. The first, Philip Soper, while offering a strong concept of individuality, develops only a weak concept of community, and largely ignores the concept of purpose. The second, Michael Perry, offers a strong concept of community but a weak and undifferentiated concept of individuality, and an even weaker sense of purpose. Lon Fuller, in contrast to the other two, develops each of these three concepts, but his concept of community is abstract and he fails to give substantive content to his concept of purpose. Because of its general weakness in the sphere of ontology, contemporary American legal thought--nonpositivist as well as positivist--would benefit greatly from theology. Theology undertakes as one of its major pursuits an inquiry into the nature of individual and collective being. The theological concepts of creation, covenant, and redemption as expressed in the Judaic-Christian tradition are directly related to, and indeed have helped to form, our assumptions concerning the nature of the individual person and of the community.
From the author's introduction: Contemporary American legal scholars who oppose positivism have not generally attempted to set forth in any systematic way their own theories of human nature. They have sometimes discussed questions relating to individuality, to community, or to the pur- posive nature of existence, but they have generally neglected at least one of these three topics. To illustrate this, and to explore its implications, I have chosen three examples. The first, Philip Soper, while offering a strong concept of individuality, develops only a weak concept of community, and largely ignores the concept of purpose. The second, Michael Perry, offers a strong concept of community but a weak and undifferentiated concept of individuality, and an even weaker sense of purpose. Lon Fuller, in contrast to the other two, develops each of these three concepts, but his concept of community is abstract and he fails to give substantive content to his concept of purpose. Because of its general weakness in the sphere of ontology, contemporary American legal thought--nonpositivist as well as positivist--would benefit greatly from theology. Theology undertakes as one of its major pursuits an inquiry into the nature of individual and collective being. The theological concepts of creation, covenant, and redemption as expressed in the Judaic-Christian tradition are directly related to, and indeed have helped to form, our assumptions concerning the nature of the individual person and of the community.
In Defense of Natural Law
Phillip E. Johnson, In Defense of Natural Law, First Things, Nov. 1999.
This is an excellent book review article by Phillip E. Johnson in which he discusses "the new natural law philosophy of Germain Grisez, John Finnis, and several others." The above link will direct you to the text of the article, originally printed in "First Things" in November 1999 (sign-up required).
Note: The article is also available to read online at the Discovery Institute.
This is an excellent book review article by Phillip E. Johnson in which he discusses "the new natural law philosophy of Germain Grisez, John Finnis, and several others." The above link will direct you to the text of the article, originally printed in "First Things" in November 1999 (sign-up required).
Note: The article is also available to read online at the Discovery Institute.
America’s “Culture War”—The Sinister Denial of Virtue and the Decline of Natural Law
Douglas W. Kmiec, America’s “Culture War”—The Sinister Denial of Virtue and the Decline of Natural Law, 13 St. Louis U. Pub. L. Rev. 183 (1993).
The Possibility of a Christian Jurisprudence
Jonathan Edward Maire, The Possibility of a Christian Jurisprudence, 40 Am. J. Juris. 101 (1995).
The Natural Law: A Study in Legal and Social History and Philosophy
Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Thomas R. Hanley trans., Liberty Fund 1998) (1936).
From the publisher: Originally published in German in 1936, The Natural Law is the first work to clarify the differences between traditional natural law as represented in the writings of Cicero, Aquinas, and Hooker and the revolutionary doctrines of natural fights espoused by Hobbes, Locke, and Rousseau. Beginning with the legacies of Greek and Roman life and thought, Rommen traces the natural law tradition to its displacement by legal positivism and concludes with what the author calls "the reappearance" of natural law thought in more recent times. In seven chapters each, Rommen explores "The History of the Idea of Natural Law" and "The Philosophy and Content of the Natural Law." In his introduction, Russell Hittinger places Rommen's work in the context of contemporary debate on the relevance of natural law to philosophical inquiry and constitutional interpretation.
From the publisher: Originally published in German in 1936, The Natural Law is the first work to clarify the differences between traditional natural law as represented in the writings of Cicero, Aquinas, and Hooker and the revolutionary doctrines of natural fights espoused by Hobbes, Locke, and Rousseau. Beginning with the legacies of Greek and Roman life and thought, Rommen traces the natural law tradition to its displacement by legal positivism and concludes with what the author calls "the reappearance" of natural law thought in more recent times. In seven chapters each, Rommen explores "The History of the Idea of Natural Law" and "The Philosophy and Content of the Natural Law." In his introduction, Russell Hittinger places Rommen's work in the context of contemporary debate on the relevance of natural law to philosophical inquiry and constitutional interpretation.
The Intellectual Context of Natural Law
James V. Schall, The Intellectual Context of Natural Law, 38 Am. J. Juris. 85 (1993).
From the author's introduction:
The subject of natural law, though one of the really fascinating subjects of our philosophic and legal tradition, is not widely considered today even in law schools or political science departments, let alone in philosophic or theological treatises, all of which actually have something to say about the subject. However, it is a perennial theme of remarkable vigor and interest to those perceptive thinkers who are brave enough to reconsider the topic.
From the author's introduction:
The subject of natural law, though one of the really fascinating subjects of our philosophic and legal tradition, is not widely considered today even in law schools or political science departments, let alone in philosophic or theological treatises, all of which actually have something to say about the subject. However, it is a perennial theme of remarkable vigor and interest to those perceptive thinkers who are brave enough to reconsider the topic.
God, Man, and Law: The Biblical Principles
Herbert W. Titus, God, Man, and Law: The Biblical Principles (Institute in Basic Life Principles 1994).
This important book, part casebook (it contains numerous court opinions), part history lesson, and part legal and theological treatise, addresses every important legal theme. It is divided into eight sections (God, Man, Legal Education, and Law; Law: The Biblical Foundations; Jurisdiction; Equality; Fault; Vow; Dominion; Restitution), and each section is followed by a set of study questions with scripture references, designed to lead the reader to the scriptures for answers to the important issues raised in the chapter. The text and interspersed readings do not provide pat answers, but point the reader to issues for deeper reflection and study.
With regard to the section on legal education, Dean Titus’s work addresses the history of American legal education and the impact of social Darwinism and scientific humanism on the law school (pp. 1-29).
Because of this structure and the book’s length (309 pages plus notes, index, and glossary), this book would be excellent for group discussion or as a source book for a bible study. Dean Titus writes in his introduction that his book is “designed to challenge the reader to develop a Biblical understanding of law, with particular focus on law in the United States of America.”
Note: Also available online here.
This important book, part casebook (it contains numerous court opinions), part history lesson, and part legal and theological treatise, addresses every important legal theme. It is divided into eight sections (God, Man, Legal Education, and Law; Law: The Biblical Foundations; Jurisdiction; Equality; Fault; Vow; Dominion; Restitution), and each section is followed by a set of study questions with scripture references, designed to lead the reader to the scriptures for answers to the important issues raised in the chapter. The text and interspersed readings do not provide pat answers, but point the reader to issues for deeper reflection and study.
With regard to the section on legal education, Dean Titus’s work addresses the history of American legal education and the impact of social Darwinism and scientific humanism on the law school (pp. 1-29).
Because of this structure and the book’s length (309 pages plus notes, index, and glossary), this book would be excellent for group discussion or as a source book for a bible study. Dean Titus writes in his introduction that his book is “designed to challenge the reader to develop a Biblical understanding of law, with particular focus on law in the United States of America.”
Note: Also available online here.
The Weightier Matters of the Law
The Weightier Matters of the Law: Essays on Law and Religion (John Witte, Jr. & Frank S. Alexander eds., 1988).
This book is a great collection of essays in tribute to Harold J. Berman.
Legal History (pp. 1-170):
This section contains six essays on “Historical Interaction of Law and Religion,” including essays on “Ockham and the Origin of Individual Rights,” “Marriage Law in the Lutheran Reformation,” and “Religion, Law, and Revolution in the Shaping of Harvard College.”
Jurisprudence (pp. 179-335):
This section, "Religious Perspectives on Law," contains seven essays, including: James Luther Adams, Conceptions of Natural Law, From Troeltsch to Berman (179); W. Cole Durham, Jr., Religion and the Criminal Law: Types and Contexts of Interaction (193); John V. Orth, Casting the Priests Out of the Temple: John Austin and the Relation Between Law and Religion (229).
This book is a great collection of essays in tribute to Harold J. Berman.
Legal History (pp. 1-170):
This section contains six essays on “Historical Interaction of Law and Religion,” including essays on “Ockham and the Origin of Individual Rights,” “Marriage Law in the Lutheran Reformation,” and “Religion, Law, and Revolution in the Shaping of Harvard College.”
Jurisprudence (pp. 179-335):
This section, "Religious Perspectives on Law," contains seven essays, including: James Luther Adams, Conceptions of Natural Law, From Troeltsch to Berman (179); W. Cole Durham, Jr., Religion and the Criminal Law: Types and Contexts of Interaction (193); John V. Orth, Casting the Priests Out of the Temple: John Austin and the Relation Between Law and Religion (229).
On the Nature of Human Liberty
Leo XIII, Encyclical Letter on the Nature of Human Liberty: Libertas Praestatissimum (1888).
The encyclical, on the relationship between human freedom and absolute truth, is a discussion of the sources and nature of human liberty, grounded in the eternal law: “[T]he eternal law of God is the sole standard and rule of human liberty, not only in each individual man, but also in the community and civil society which men constitute when united. Therefore, the true liberty of human society does not consist in every man doing what he pleases, for this would simply end in turmoil and confusion, and bring on the overthrow of the State; but rather in this, that through the injunctions of the civil law all may more easily conform to the prescriptions of the eternal law." Libertas ¶10. Leo criticizes certain liberal theories of the separation of church and state (¶¶18-22), freedom of speech and the press (¶23), and freedom of conscience, except as it may be said to affirm the individual’s freedom from “an omnipotent state” to obey God and his commands (¶¶30 and 31). The focus of this encyclical is the relationship between human freedom and absolute truth.
Read this Resource
The encyclical, on the relationship between human freedom and absolute truth, is a discussion of the sources and nature of human liberty, grounded in the eternal law: “[T]he eternal law of God is the sole standard and rule of human liberty, not only in each individual man, but also in the community and civil society which men constitute when united. Therefore, the true liberty of human society does not consist in every man doing what he pleases, for this would simply end in turmoil and confusion, and bring on the overthrow of the State; but rather in this, that through the injunctions of the civil law all may more easily conform to the prescriptions of the eternal law." Libertas ¶10. Leo criticizes certain liberal theories of the separation of church and state (¶¶18-22), freedom of speech and the press (¶23), and freedom of conscience, except as it may be said to affirm the individual’s freedom from “an omnipotent state” to obey God and his commands (¶¶30 and 31). The focus of this encyclical is the relationship between human freedom and absolute truth.
Read this Resource
Natural Law and Contemporary Public Policy
Natural Law and Contemporary Public Policy (David F. Forte ed., 1998).
A collection of articles on natural law theory as it relates to a wide variety of subjects. The authors come from all political and religious perspectives.
A collection of articles on natural law theory as it relates to a wide variety of subjects. The authors come from all political and religious perspectives.
Law Without Values
Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000).
The publisher explains, “In recent decades, Oliver Wendell Holmes has been praised as ‘the only great American legal thinker’ and ‘the most illustrious figure in the history of American law.’ In Law without Values, Albert Alschuler paints a much darker picture of Justice Holmes as a distasteful man who, among other things, espoused Social Darwinism, favored eugenics, and as he himself acknowledged, came ‘devilish near to believing that might makes right.’. . .
His pernicious legacy, according to Alschuler, is evident in twentieth-century legal thought, whether one takes an economic or a critical legal approach. Contrary to the perception of many modern lawyers and scholars, Holmes's legacy was not a "revolt against formalism," or against a priori reasoning; it was a revolt against the objective concepts of right and wrong--against values.”
On this topic, see also, James Gordley, When Paths Diverge: A Response to Albert Alschuler on Oliver Wendell Holmes, 49 Fla. L. Rev. 441 (1997), and Michael P. Schutt, Oliver Wendell Holmes and the Decline of the American Lawyer: Social Engineering, Religion, and the Search for Professional Identity, 30 Rutgers L. J. 143 (1998).
The publisher explains, “In recent decades, Oliver Wendell Holmes has been praised as ‘the only great American legal thinker’ and ‘the most illustrious figure in the history of American law.’ In Law without Values, Albert Alschuler paints a much darker picture of Justice Holmes as a distasteful man who, among other things, espoused Social Darwinism, favored eugenics, and as he himself acknowledged, came ‘devilish near to believing that might makes right.’. . .
His pernicious legacy, according to Alschuler, is evident in twentieth-century legal thought, whether one takes an economic or a critical legal approach. Contrary to the perception of many modern lawyers and scholars, Holmes's legacy was not a "revolt against formalism," or against a priori reasoning; it was a revolt against the objective concepts of right and wrong--against values.”
On this topic, see also, James Gordley, When Paths Diverge: A Response to Albert Alschuler on Oliver Wendell Holmes, 49 Fla. L. Rev. 441 (1997), and Michael P. Schutt, Oliver Wendell Holmes and the Decline of the American Lawyer: Social Engineering, Religion, and the Search for Professional Identity, 30 Rutgers L. J. 143 (1998).
50 Questions on the Natural Law
Charles E. Rice, 50 Questions on the Natural Law: What It is and Why We Need It (1995).
In simple question and answer form, Professor Rice defends and discusses natural law theory and modern misconceptions about it. It is short and accessible to the novice.
In simple question and answer form, Professor Rice defends and discusses natural law theory and modern misconceptions about it. It is short and accessible to the novice.
Law and Truth
Dennis Patterson, Law and Truth (Oxford 1996).
“Patterson devotes a chapter to each of six major schools of contemporary jurisprudence: legal formalism, legal realism, legal positivism, and the jurisprudential theories of Ronald Dworkin, Stanley Fish, and Philip Bobbitt. He explains why each is seriously or fatally flawed and, in the concluding chapter, presents his own alternative formulation. In so doing, he takes on seemingly all of the major figures of contemporary legal thought. Yet, his conclusion--a powerful defense of law's integrity as a social and argumentative practice--will be appealing and even comforting to many lawyers. It is a potent rejoinder to the various "law and" movements and . . . is consistent with the emerging long-term direction of the legal academy.”
Michael A. Livingston, Postmodernism Meets Practical Reason (Book Review), 107 Yale L. J. 1125 (1998).
More on this book, from the description by Oxford Unversity Press:
Are propositions of law true or false? If so, what does it mean to say
that propositions of law are true and false? This book takes up these
questions in the context of the wider philosophical debate over realism and
anti-realism. Despite surface differences, Patterson argues that the
leading contemporary jurisprudential theories all embrace a flawed conception of
the nature of truth in law. Instead of locating that in virtue of which
propositions of law are true, Patterson argues that lawyers use forms of
argument to show the truth of propositions of law. Additionally, Patterson
argues that the realism/anti-realism debate in jurisprudence is part of a larger
argument over the role of postmodernism in jurisprudence. For this,
Patterson offers an analytic account of postmodernism and charts its
implications for legal theory. This book will be of interest to those in
legal theory, philosophy, social and political theory, and ethics.
Learn more here
“Patterson devotes a chapter to each of six major schools of contemporary jurisprudence: legal formalism, legal realism, legal positivism, and the jurisprudential theories of Ronald Dworkin, Stanley Fish, and Philip Bobbitt. He explains why each is seriously or fatally flawed and, in the concluding chapter, presents his own alternative formulation. In so doing, he takes on seemingly all of the major figures of contemporary legal thought. Yet, his conclusion--a powerful defense of law's integrity as a social and argumentative practice--will be appealing and even comforting to many lawyers. It is a potent rejoinder to the various "law and" movements and . . . is consistent with the emerging long-term direction of the legal academy.”
Michael A. Livingston, Postmodernism Meets Practical Reason (Book Review), 107 Yale L. J. 1125 (1998).
More on this book, from the description by Oxford Unversity Press:
Are propositions of law true or false? If so, what does it mean to say
that propositions of law are true and false? This book takes up these
questions in the context of the wider philosophical debate over realism and
anti-realism. Despite surface differences, Patterson argues that the
leading contemporary jurisprudential theories all embrace a flawed conception of
the nature of truth in law. Instead of locating that in virtue of which
propositions of law are true, Patterson argues that lawyers use forms of
argument to show the truth of propositions of law. Additionally, Patterson
argues that the realism/anti-realism debate in jurisprudence is part of a larger
argument over the role of postmodernism in jurisprudence. For this,
Patterson offers an analytic account of postmodernism and charts its
implications for legal theory. This book will be of interest to those in
legal theory, philosophy, social and political theory, and ethics.
Learn more here
In Defense of Natural Law
Robert P. George, In Defense of Natural Law (Oxford 2001).
From the description by Oxford University Press:
From the description by Oxford University Press:
In Making Men Moral, his 1995 book, George questioned the central
doctrines of liberal jurisprudence and political theory. In his new work he
extends his critique of liberalism, and also goes beyond it to show how
contemporary natural law theory provides a superior way of thinking about basic problems of justice and political morality. Students as well as scholars in law, political science, and philosophy will find George's arguments stimulating, challenging, and compelling.
A Preserving Grace
A Preserving Grace: Protestants, Catholics, and Natural Law (Michael Cromartie ed., 1997).
A collection of recent essays by well-known Catholic and Protestant lawyers and scholars. A good introduction to the main issues in modern natural law theory.
A collection of recent essays by well-known Catholic and Protestant lawyers and scholars. A good introduction to the main issues in modern natural law theory.
Natural Rights and the Right to Choose
Hadley Arkes, Natural Rights and the Right to Choose (2002).
Michael Novak says, “I can think of no book more important to the survival and good health of the American republic — and its most precious experiment — than this little masterpiece. Too many who argue about the elephant in the middle of our room focus exclusively on choice, or exclusively on life; it is Hadley Arkes’s genius to see that the fundamental issue is that of natural right. Forget about life for a few hours, and forget about choice; get the question of natural right straight. Then much else will in due course make itself clear.” Michael Novak, Hadley’s Comet, National Review Online, April 30, 2003.
Michael Novak says, “I can think of no book more important to the survival and good health of the American republic — and its most precious experiment — than this little masterpiece. Too many who argue about the elephant in the middle of our room focus exclusively on choice, or exclusively on life; it is Hadley Arkes’s genius to see that the fundamental issue is that of natural right. Forget about life for a few hours, and forget about choice; get the question of natural right straight. Then much else will in due course make itself clear.” Michael Novak, Hadley’s Comet, National Review Online, April 30, 2003.
Law and Gospel
John Warwick Montgomery, Law and Gospel: A Study in Jurisprudence (Christian Legal Society 1978).
This 50-page monograph is designed as a study guide on the basic law school subjects. There are 20 extremely short sections, most covering one topic in one or two pages. (For example, the Torts section is two pages long). In the section, Dr. Montgomery sets out a brief discussion, usually with quotations from scripture or case law. He then poses a handful of questions based on the text, along with some scripture references for further study. This little text will reward a close reading. Each section is short enough that it can be covered in small bites.
This 50-page monograph is designed as a study guide on the basic law school subjects. There are 20 extremely short sections, most covering one topic in one or two pages. (For example, the Torts section is two pages long). In the section, Dr. Montgomery sets out a brief discussion, usually with quotations from scripture or case law. He then poses a handful of questions based on the text, along with some scripture references for further study. This little text will reward a close reading. Each section is short enough that it can be covered in small bites.
The First Grace
Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (2003).
Hittinger takes a broad approach to natural law theory, providing applications across a broad spectrum of legal and non-legal concerns, with a view to reclaiming the natural law rooted, fundamentally, in theological truth. Hittinger discusses the decline of natural law theory and the decline of civil society. In doing so, he addresses the American founding, assisted suicide, judicial activism, religious liberty, and natural rights (the length of this book is 283 pages, plus notes and index).
Professor Budziszewski praises its usefulness across the theological spectrum: “The contribution of The First Grace to Catholic moral theology should be plain, but it should be read at the other end of the churchyard as well. For some time, evangelicals have been seeking high and low for the materials of a public philosophy. Although they find the idea of natural law attractive, the only sort of natural law theory that Scripture-sensitive Protestants could embrace would the sort that Hittinger champions—one that acknowledges its rootedness in the providence of God.”
J. Budziszewski, Prima Gratia (Book Review), First Things, April 2003, at 61-62.
Hittinger takes a broad approach to natural law theory, providing applications across a broad spectrum of legal and non-legal concerns, with a view to reclaiming the natural law rooted, fundamentally, in theological truth. Hittinger discusses the decline of natural law theory and the decline of civil society. In doing so, he addresses the American founding, assisted suicide, judicial activism, religious liberty, and natural rights (the length of this book is 283 pages, plus notes and index).
Professor Budziszewski praises its usefulness across the theological spectrum: “The contribution of The First Grace to Catholic moral theology should be plain, but it should be read at the other end of the churchyard as well. For some time, evangelicals have been seeking high and low for the materials of a public philosophy. Although they find the idea of natural law attractive, the only sort of natural law theory that Scripture-sensitive Protestants could embrace would the sort that Hittinger champions—one that acknowledges its rootedness in the providence of God.”
J. Budziszewski, Prima Gratia (Book Review), First Things, April 2003, at 61-62.
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