I am a professor of jurisprudence (legal philosophy) at the department of Law, Stockholm University. I have an interest in the central fields of legal philosophy as well as elementary logic.
Jag kommer i den har artikeln att koncentrera mig pa relationen mellan rattspositivism och normat... more Jag kommer i den har artikeln att koncentrera mig pa relationen mellan rattspositivism och normativa teorier om juridisk argumentation, dvs. teorier som sager nagot om hur rattstillamparen bor reso ...
LEGAL THEORY aims to ”provide interesting material for further discussions concerning legal theor... more LEGAL THEORY aims to ”provide interesting material for further discussions concerning legal theory also outside the Scandinavian countries.” The essays are divided into five categories: (1) On the Nature of Law; (2) On Legal Concepts and Legal Principles; (3) On Legal Reasoning; (4) Legal Rules and the Development of the Legal System; and (5) Perspectives on Legal Science. In this review, I consider Jes Bjarup's analysis of Axel Hagerstrom’s meta-ethical non-cognitivism. In his essay, Bjarup makes several claims. First, he claims that the received view, according to which Hagerstrom was concerned in his inaugural lecture with meta-ethics and nothing else, is mistaken. According to Bjarup, Hagerstrom also advanced a thesis in the field of normative ethics, which Bjarup dubs the ideal of self-realization, according to which ”an actual autonomous morality is within us, determined only by direct regard for what we esteem most of all.” ng of its citizens.” Second, he maintains that there is a place for law under Hagerstrom’s theory. For to pursue the ideal of self-realization, the individual needs a stable social framework, which positive morality cannot provide. Third, he claims that Hagerstrom’s theory leaves no room for ”substantial normative or ethical inquiries into the law and its application,” nor for legal reasoning conceived as practical reasoning. However, I question all of Bjarup's main claims.
In Rhetoric and the Rule of Law, MacCormick sums up the developments of his views on legal reason... more In Rhetoric and the Rule of Law, MacCormick sums up the developments of his views on legal reasoning since the publication of his book Legal Reasoning and Legal Theory. He maintains, inter alia, that in the case of statutory (and constitutional) interpretation, the judge should begin with a textual analysis of the relevant statutory provision; that if a textual analysis does not yield a determinate result, he should proceed to consider systemic arguments; and that if neither textual nor systemic arguments nor any combination of these arguments yields a determinate result, he should resort to teleological (or purposive) arguments (Ch. 7). The central question in Rhetoric, however, is whether we can square a belief in the Rule of Law, which entails a belief in legal certainty, with a belief in (what MacCormick refers to as) the Arguable Character of Law, that is, the notion that the content of law depends on argumentation. In this review, I consider MacCormick's reconciliation claim (as I shall call it), and argue that it is not persuasive. In addition, I discuss MacCormick's views on deduction, universalizability, and consequentialist reasoning.
In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properti... more In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties (a position he calls legal anti-essentialism), and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument (the cognitive science argument) is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument (the family resemblance argument) is false. * I would like to thank the participants in the workshop "The Force of Law. A Workshop with Fred Schauer" at Bocconi University, Milan on 2-3 October 2014, for helpful comments on my presentation of the ideas in this article. I would also like to thank the participants in the advanced seminar in practical philosophy, Uppsala University, especially Jens Johansson, for helpful comments on an earlier version of the article, and Å ke Fr€ andberg and Patricia Mindus for equally helpful comments on an even earlier version of the article. Finally, I would like to thank Robert Carroll for checking my English. As always, the responsibility for any remaining errors and imperfections in the article rests with the author alone.
Politicians, human rights activists, scholars, and others disagree about whether human rights are... more Politicians, human rights activists, scholars, and others disagree about whether human rights are universally true or valid or only true or valid relative to a given culture. 1 Jack Donnelly, for example, defends (what he refers to as) the moral universality of human rights: If human rights are the rights one has simply because one is a human being, as they are usually thought to be, then they are held "universally," by all human beings. They also hold "universally" against all other persons and institutions. As the highest moral rights, they regulate the fundamental structures and practices of political life, and in ordinary circumstances they take priority over other moral, legal, and political claims. These distinctions encompass what I call the moral universality of human rights. 2 Adamantia Pollis and Peter Schwab, on the other hand, appear to believe that human rights can only be valid relative to a given culture. 3 The * Associate Professor in Jurisprudence, Department of Law, Uppsala University (Sweden). This article reports research carried out under the auspices of The Bank of Sweden Tercentenary Foundation. I would like to thank Erik Carlson, Claes Lemestedt and Sia Spiliopoulou-Akermark for helpful comments on the article. I would also like to thank the participants in a seminar at Riga Graduate School of Law in May 2004 as well as the participants in a seminar organized by SIFIR at the Department of Law, Uppsala University in November 2004 for comments on my presentation of some of the ideas put forward in this article. Finally, I would like to thank Robert Carroll for checking my English. The usual caveat applies: the author alone is responsible for any remaining mistakes and imperfections.
This article reports research carried out under the auspices of The Bank of Sweden Tercentenary F... more This article reports research carried out under the auspices of The Bank of Sweden Tercentenary Foundation. I would like to thank Brian Bix and Thomas Mautner for helpful comments on this article. I would also like to thank Åke Frändberg and the participants in the advanced seminar in jurisprudence at the Department of Law, as well as the participants in the advanced seminar in practical philosophy at the Department of Philosophy, Uppsala University, for helpful comments on an earlier version of this article. In addition, I would like to thank the participants in the special workshop "Legal Argumentation and Interpretation" at the IVR conference in Cracow, Poland, 1-6 August 2007, for equally helpful comments on my presentation of the ideas put forward in the article. Finally, I would like to thank Robert Carroll for checking my English. The usual caveat applies, however: The author alone is responsible for any remaining mistakes and imperfections. 4 Id. at p. 210. The imperative aspect of the directive function identified by Olivecrona is rather weak. 5 Id. at p. 211. 6 Id. at p. 211. (Emphasis added) 7 Id. at pp. 212-5. 8 Id. at pp. 212-3.
This article reports research carried out under the auspices of The Bank of Sweden Tercentenary F... more This article reports research carried out under the auspices of The Bank of Sweden Tercentenary Foundation. I would like to thank Uta Bindreiter and an anonymous reviewer for Law and Philosophy for helpful comments on this article. I would also like to thank Brian Bix, the participants in the advanced seminar in practical philosophy at the
Reinhold Fahlbeck diskuterar i ett kort och karnfullt inlagg i Juridisk tidskrift fragan huruvida... more Reinhold Fahlbeck diskuterar i ett kort och karnfullt inlagg i Juridisk tidskrift fragan huruvida det ar mojligt att forska – att bedriva vetenskap – de lege ferenda, till skillnad fran de lege lata, d.v.s. att forska om hur gallande ratt bor se ut, inte om hur den faktiskt ser ut. Han menar sjalv (med vissa reservationer) att de lege ferenda-undersokningar inte kan betraktas som forskning men forklarar inte riktigt varfor. Mitt intryck av hans argumentation ar dock att han helt enkelt anser att vardeomdomen i allmanhet och moraliska omdomen i synnerhet ar subjektiva till sin natur och att det ar detta som gor att de lege ferenda-forskning inte kan betraktas som forskning. Han sager t.ex. i slutet av artikeln (s. 6) att de lege ferenda-forslagen endast kan varderas utifran overvaganden om hur effektivt de kan tillgodose det forandringsbehov som utgor avhandlingens (av Fahlbeck forutsatta) utgangspunkt, d.v.s. endast savitt galler fragan om relationen mellan mal och medel (se avsnitt 3 nedan.).Jag kommer att havda dels (1A) att Fahlbecks krav att forskningsresultatet skall nodvandiggora de lege ferenda-forslaget, for att det skall vara fraga omforskning, ar allt for starkt, nagot som enligt min mening vinner stod av den omstandigheten att detta krav ocksa skulle utesluta de lege lata-forskning fran forskningens omrade, dels (1B) att Fahlbecks egna krav pa de lege ferenda-forskning, vilka savitt jag kan forsta ar normativa, verkar forutsatta just det som Fahlbeck tycks anse vara falskt, namligen att vardeomdomen, inklusive moraliska omdomen, kan vara objektiva. Jag kommer ocksa att havda (2) att den yttersta anledningen till att de lege ferenda-forskning inte ar mojlig ar att den innefattar vardeomdomen, typiskt sett moraliska omdomen, att sadana omdomen arsubjektiva (=inte objektiva) och att man bor skilja mellan olika satt pa vilka vardeomdomen kan vara subjektiva, eftersom dessa skillnader kan ha en viss betydelse for den juridiska analysen.
This book on Nordic and Germanic legal methods includes contributions from a number of German, Sw... more This book on Nordic and Germanic legal methods includes contributions from a number of German, Swiss, and Nordic legal scholars and is a welcome contribution both to the national and the international debate on legal reasoning. Clearly, we have reason to compare not only solutions to substantive legal problems, as comparative legal scholars usually do, but also the methods for the interpretation and application of the law used in different legal orders. Reading through these essays, then, the reader is likely to acquire some interesting information about the similarities and differences between the so-called legal methods used in the relevant legal orders and about the reasons why there are certain similarities and differences between those methods. What the reader will not get, however, is (i) a systematic discussion of whether there is anything specific enough to deserve the name of ‘legal method’ and, if so, what, exactly, this might be, or (ii) any general conclusions about the similarities and differences between the legal methods used in the various legal orders or about the reasons for the relevant similarities and differences. Moreover, the reader will not get (iii) a systematic discussion of the relation between the two aims of the collection, that is, (a) to describe and compare the legal methods in the different legal orders and (b) to explain any similarities and differences regarding the methods that may turn up in the comparison. For these reasons, although I do welcome the book, I am not entirely satisfied with it.
Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophica... more Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the argument from injustice, for the status of Alexy's inquiry. * Professor of jurisprudence, Department of Law, Stockholm University. I would like to thank the participants in the advanced seminar in practical philosophy, Uppsala University, especially Victor Moberger, for helpful comments on the article. I would also like to thank Christoph Bezemek, Åke Frändberg, and Karl Pettersson for helpful comments on various versions of the article, and Robert Alexy and the participants in the workshop Law in Quest of Its Promise:
* This article reports research carried out under the auspices of The Bank of Sweden Tercentenary... more * This article reports research carried out under the auspices of The Bank of Sweden Tercentenary Foundation. I would like to thank the participants in the higher seminar in practical philosophy at the Department of Philosophy, Uppsala University as well as the participants in the higher seminar in jurisprudence at the Department of Law, Uppsala University for comments on an earlier version of the article. I would also like to thank Brian Bix, Jes Bjarup, Christian Dahlman, Svein Eng, Åke Frändberg, and Stanley L. Paulson for helpful comments on an earlier version of this article, and Lennart Åqvist and Åsa Wikforss for comments on Sections 7 and 8 in this version of the article. In addition, I would like to thank the participants in the workshop on Legal Argumentation and Rational Reconstruction at the 22nd Conference for Legal and Social Philosophy in Granada, Spain in May 2005, for comments on my presentation of some of the ideas put forward in this article. However, the usual caveat applies: The author alone is responsible for any remaining mistakes and imperfections.
The aim of this article is to see whether we can account for the normativity of law within the fr... more The aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between (α) the problem of accounting for the normativity of law, conceived as a necessary property of law, and (β) the problem of accounting for the use of normative legal language on the part of legal actors; that the debate about the normativity of law, which mainly concerns (α), is more or less identical to the debate between legal positivists and non-positivists; that one cannot account for the normativity of law, conceived along the lines of (α), within the framework of legal positivism, and that the question of the normativity of law considered within the framework of legal positivism is not an open question.
Jag kommer i den har artikeln att koncentrera mig pa relationen mellan rattspositivism och normat... more Jag kommer i den har artikeln att koncentrera mig pa relationen mellan rattspositivism och normativa teorier om juridisk argumentation, dvs. teorier som sager nagot om hur rattstillamparen bor reso ...
LEGAL THEORY aims to ”provide interesting material for further discussions concerning legal theor... more LEGAL THEORY aims to ”provide interesting material for further discussions concerning legal theory also outside the Scandinavian countries.” The essays are divided into five categories: (1) On the Nature of Law; (2) On Legal Concepts and Legal Principles; (3) On Legal Reasoning; (4) Legal Rules and the Development of the Legal System; and (5) Perspectives on Legal Science. In this review, I consider Jes Bjarup's analysis of Axel Hagerstrom’s meta-ethical non-cognitivism. In his essay, Bjarup makes several claims. First, he claims that the received view, according to which Hagerstrom was concerned in his inaugural lecture with meta-ethics and nothing else, is mistaken. According to Bjarup, Hagerstrom also advanced a thesis in the field of normative ethics, which Bjarup dubs the ideal of self-realization, according to which ”an actual autonomous morality is within us, determined only by direct regard for what we esteem most of all.” ng of its citizens.” Second, he maintains that there is a place for law under Hagerstrom’s theory. For to pursue the ideal of self-realization, the individual needs a stable social framework, which positive morality cannot provide. Third, he claims that Hagerstrom’s theory leaves no room for ”substantial normative or ethical inquiries into the law and its application,” nor for legal reasoning conceived as practical reasoning. However, I question all of Bjarup's main claims.
In Rhetoric and the Rule of Law, MacCormick sums up the developments of his views on legal reason... more In Rhetoric and the Rule of Law, MacCormick sums up the developments of his views on legal reasoning since the publication of his book Legal Reasoning and Legal Theory. He maintains, inter alia, that in the case of statutory (and constitutional) interpretation, the judge should begin with a textual analysis of the relevant statutory provision; that if a textual analysis does not yield a determinate result, he should proceed to consider systemic arguments; and that if neither textual nor systemic arguments nor any combination of these arguments yields a determinate result, he should resort to teleological (or purposive) arguments (Ch. 7). The central question in Rhetoric, however, is whether we can square a belief in the Rule of Law, which entails a belief in legal certainty, with a belief in (what MacCormick refers to as) the Arguable Character of Law, that is, the notion that the content of law depends on argumentation. In this review, I consider MacCormick's reconciliation claim (as I shall call it), and argue that it is not persuasive. In addition, I discuss MacCormick's views on deduction, universalizability, and consequentialist reasoning.
In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properti... more In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties (a position he calls legal anti-essentialism), and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument (the cognitive science argument) is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument (the family resemblance argument) is false. * I would like to thank the participants in the workshop "The Force of Law. A Workshop with Fred Schauer" at Bocconi University, Milan on 2-3 October 2014, for helpful comments on my presentation of the ideas in this article. I would also like to thank the participants in the advanced seminar in practical philosophy, Uppsala University, especially Jens Johansson, for helpful comments on an earlier version of the article, and Å ke Fr€ andberg and Patricia Mindus for equally helpful comments on an even earlier version of the article. Finally, I would like to thank Robert Carroll for checking my English. As always, the responsibility for any remaining errors and imperfections in the article rests with the author alone.
Politicians, human rights activists, scholars, and others disagree about whether human rights are... more Politicians, human rights activists, scholars, and others disagree about whether human rights are universally true or valid or only true or valid relative to a given culture. 1 Jack Donnelly, for example, defends (what he refers to as) the moral universality of human rights: If human rights are the rights one has simply because one is a human being, as they are usually thought to be, then they are held "universally," by all human beings. They also hold "universally" against all other persons and institutions. As the highest moral rights, they regulate the fundamental structures and practices of political life, and in ordinary circumstances they take priority over other moral, legal, and political claims. These distinctions encompass what I call the moral universality of human rights. 2 Adamantia Pollis and Peter Schwab, on the other hand, appear to believe that human rights can only be valid relative to a given culture. 3 The * Associate Professor in Jurisprudence, Department of Law, Uppsala University (Sweden). This article reports research carried out under the auspices of The Bank of Sweden Tercentenary Foundation. I would like to thank Erik Carlson, Claes Lemestedt and Sia Spiliopoulou-Akermark for helpful comments on the article. I would also like to thank the participants in a seminar at Riga Graduate School of Law in May 2004 as well as the participants in a seminar organized by SIFIR at the Department of Law, Uppsala University in November 2004 for comments on my presentation of some of the ideas put forward in this article. Finally, I would like to thank Robert Carroll for checking my English. The usual caveat applies: the author alone is responsible for any remaining mistakes and imperfections.
This article reports research carried out under the auspices of The Bank of Sweden Tercentenary F... more This article reports research carried out under the auspices of The Bank of Sweden Tercentenary Foundation. I would like to thank Brian Bix and Thomas Mautner for helpful comments on this article. I would also like to thank Åke Frändberg and the participants in the advanced seminar in jurisprudence at the Department of Law, as well as the participants in the advanced seminar in practical philosophy at the Department of Philosophy, Uppsala University, for helpful comments on an earlier version of this article. In addition, I would like to thank the participants in the special workshop "Legal Argumentation and Interpretation" at the IVR conference in Cracow, Poland, 1-6 August 2007, for equally helpful comments on my presentation of the ideas put forward in the article. Finally, I would like to thank Robert Carroll for checking my English. The usual caveat applies, however: The author alone is responsible for any remaining mistakes and imperfections. 4 Id. at p. 210. The imperative aspect of the directive function identified by Olivecrona is rather weak. 5 Id. at p. 211. 6 Id. at p. 211. (Emphasis added) 7 Id. at pp. 212-5. 8 Id. at pp. 212-3.
This article reports research carried out under the auspices of The Bank of Sweden Tercentenary F... more This article reports research carried out under the auspices of The Bank of Sweden Tercentenary Foundation. I would like to thank Uta Bindreiter and an anonymous reviewer for Law and Philosophy for helpful comments on this article. I would also like to thank Brian Bix, the participants in the advanced seminar in practical philosophy at the
Reinhold Fahlbeck diskuterar i ett kort och karnfullt inlagg i Juridisk tidskrift fragan huruvida... more Reinhold Fahlbeck diskuterar i ett kort och karnfullt inlagg i Juridisk tidskrift fragan huruvida det ar mojligt att forska – att bedriva vetenskap – de lege ferenda, till skillnad fran de lege lata, d.v.s. att forska om hur gallande ratt bor se ut, inte om hur den faktiskt ser ut. Han menar sjalv (med vissa reservationer) att de lege ferenda-undersokningar inte kan betraktas som forskning men forklarar inte riktigt varfor. Mitt intryck av hans argumentation ar dock att han helt enkelt anser att vardeomdomen i allmanhet och moraliska omdomen i synnerhet ar subjektiva till sin natur och att det ar detta som gor att de lege ferenda-forskning inte kan betraktas som forskning. Han sager t.ex. i slutet av artikeln (s. 6) att de lege ferenda-forslagen endast kan varderas utifran overvaganden om hur effektivt de kan tillgodose det forandringsbehov som utgor avhandlingens (av Fahlbeck forutsatta) utgangspunkt, d.v.s. endast savitt galler fragan om relationen mellan mal och medel (se avsnitt 3 nedan.).Jag kommer att havda dels (1A) att Fahlbecks krav att forskningsresultatet skall nodvandiggora de lege ferenda-forslaget, for att det skall vara fraga omforskning, ar allt for starkt, nagot som enligt min mening vinner stod av den omstandigheten att detta krav ocksa skulle utesluta de lege lata-forskning fran forskningens omrade, dels (1B) att Fahlbecks egna krav pa de lege ferenda-forskning, vilka savitt jag kan forsta ar normativa, verkar forutsatta just det som Fahlbeck tycks anse vara falskt, namligen att vardeomdomen, inklusive moraliska omdomen, kan vara objektiva. Jag kommer ocksa att havda (2) att den yttersta anledningen till att de lege ferenda-forskning inte ar mojlig ar att den innefattar vardeomdomen, typiskt sett moraliska omdomen, att sadana omdomen arsubjektiva (=inte objektiva) och att man bor skilja mellan olika satt pa vilka vardeomdomen kan vara subjektiva, eftersom dessa skillnader kan ha en viss betydelse for den juridiska analysen.
This book on Nordic and Germanic legal methods includes contributions from a number of German, Sw... more This book on Nordic and Germanic legal methods includes contributions from a number of German, Swiss, and Nordic legal scholars and is a welcome contribution both to the national and the international debate on legal reasoning. Clearly, we have reason to compare not only solutions to substantive legal problems, as comparative legal scholars usually do, but also the methods for the interpretation and application of the law used in different legal orders. Reading through these essays, then, the reader is likely to acquire some interesting information about the similarities and differences between the so-called legal methods used in the relevant legal orders and about the reasons why there are certain similarities and differences between those methods. What the reader will not get, however, is (i) a systematic discussion of whether there is anything specific enough to deserve the name of ‘legal method’ and, if so, what, exactly, this might be, or (ii) any general conclusions about the similarities and differences between the legal methods used in the various legal orders or about the reasons for the relevant similarities and differences. Moreover, the reader will not get (iii) a systematic discussion of the relation between the two aims of the collection, that is, (a) to describe and compare the legal methods in the different legal orders and (b) to explain any similarities and differences regarding the methods that may turn up in the comparison. For these reasons, although I do welcome the book, I am not entirely satisfied with it.
Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophica... more Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the argument from injustice, for the status of Alexy's inquiry. * Professor of jurisprudence, Department of Law, Stockholm University. I would like to thank the participants in the advanced seminar in practical philosophy, Uppsala University, especially Victor Moberger, for helpful comments on the article. I would also like to thank Christoph Bezemek, Åke Frändberg, and Karl Pettersson for helpful comments on various versions of the article, and Robert Alexy and the participants in the workshop Law in Quest of Its Promise:
* This article reports research carried out under the auspices of The Bank of Sweden Tercentenary... more * This article reports research carried out under the auspices of The Bank of Sweden Tercentenary Foundation. I would like to thank the participants in the higher seminar in practical philosophy at the Department of Philosophy, Uppsala University as well as the participants in the higher seminar in jurisprudence at the Department of Law, Uppsala University for comments on an earlier version of the article. I would also like to thank Brian Bix, Jes Bjarup, Christian Dahlman, Svein Eng, Åke Frändberg, and Stanley L. Paulson for helpful comments on an earlier version of this article, and Lennart Åqvist and Åsa Wikforss for comments on Sections 7 and 8 in this version of the article. In addition, I would like to thank the participants in the workshop on Legal Argumentation and Rational Reconstruction at the 22nd Conference for Legal and Social Philosophy in Granada, Spain in May 2005, for comments on my presentation of some of the ideas put forward in this article. However, the usual caveat applies: The author alone is responsible for any remaining mistakes and imperfections.
The aim of this article is to see whether we can account for the normativity of law within the fr... more The aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between (α) the problem of accounting for the normativity of law, conceived as a necessary property of law, and (β) the problem of accounting for the use of normative legal language on the part of legal actors; that the debate about the normativity of law, which mainly concerns (α), is more or less identical to the debate between legal positivists and non-positivists; that one cannot account for the normativity of law, conceived along the lines of (α), within the framework of legal positivism, and that the question of the normativity of law considered within the framework of legal positivism is not an open question.
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