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What’s Wrong with the World is dedicated to the defense of what remains of Christendom, the civilization made by the men of the Cross of Christ. Athwart two hostile Powers we stand: the Jihad and Liberalism...read more

The House Swept Clean

I've spent the better part of the afternoon hours, or at least the spare moments thereof, vainly endeavouring to come up with something semi-profound to say about the news that Rowan Williams has called for the implementation of sharia law in Britain.

Alas, all eloquence and percipience have departed me.

It is not that I am astonished. To the contrary, where the Archbishop of Canterbury is concerned, nothing really occasions surprise; the man is a living reproof to the facile belief that wisdom correlates with an individual's native intellectual endowment. In fact, a coworker printed out a copy of the article and presented it to me this morning, adding that it would cause my head to explode. This sort of thing occasionally astonishes him - in fact, he still finds unfathomable the fact that Sayyid Qtub was profoundly scandalized by - wait for it - square dancing. Likewise, an archbishop advocating the implementation of sharia law elicits expressions of stupefaction. Perhaps, then, it is a testament to my cynicism that I received the news with equanimity. "What took him so long?", I wondered silently.

Several things are noteworthy, though none of them is really new. First, those enamored of the liberal settlement, the notion that each is entitled to fashion for himself an identity from whatever fragments fall to hand, and that no inherited tradition should interpose itself between an individual and his self-posited ends, really do, in the final analysis, reject the inheritance of Western civilization. They may not do so explicitly; in fact, most do not - but all this means is that the liberal order is parasitic upon the carcass of Christendom, presupposing its benefits while devouring the substance that would enable its reproduction. In other words, liberal individualism and all of its derivatives, including the ethos of toleration and inclusiveness, presuppose the Christian conception of the person, yet isolate, abstract, and elevate it as a metaphysical absolute. Liberalism ideologizes a dissociated fragment of Christianity, and thus sweeps clean the house of Christian remnants, disdaining these as relics of intolerance and exclusion.

Second, the liberal order is subject to an irresistible compulsion to 'include' even the most intolerable and retrograde, provided they are not identifiably Western; in a black parody of kenosis, the liberal West lays down its identity, not to await some sort of resurrection or vindication, but simply to abolish itself. Humility does not lead to exaltation, but to abasement - this, because it is not truly humility with which we are confronted, but the mask of humility, which conceals pride: pride that we have attained to the wisdom our predecessors lacked, that we have transcended their bigotry and intolerance, for which we must nonetheless suffer. The liberal West hates that it is, that it is what it is, and indeed, that it is not The Other, and unknowingly ordains its own punishment.

Finally, the addled Archbishop likens his prospective parallel sharia courts to the Orthodox Jewish divorce courts, not recognizing that a) Judaism, through Christianity, is part of the Western heritage, which Islam is not, and b) that according to sharia law itself, such legal recognition could only be a stepping stone, a rival sovereignty that, by the fact of its existence, not only undoes the Western achievement in law, but establishes the preconditions of further encroachments. Muslims in Britain will not content themselves with a ghetto within the liberal city; once grant them this legitimacy, and they will next assert that their 'enlightened' system is not for them only, but for all mankind.

We can forecast what the Archbishop will say about that, can we not?

Comments (56)

I read that ol' Rowan said sharia is "inevitable." If he were bewailing that fact, there might be some common ground on which he and I could meet. But of course he's using "inevitable" the way people use that word when they think the thing is hunky dory.

Apropos of sharia's being "inevitable" in Britain, this seems a good place to link to the following story, about which I thought of writing a post but, like you on this story, couldn't think of anything much to say. I suppose it fits into the "not ready for civilization" folder: Police and social workers in the UK who are "Asian" (UK code for "Muslim") are *turning in* girls and women who run away from their families to escape abuse, forced marriage, etc. This makes women in the UK reluctant to seek help from "official" sources when they are in danger. Here's the Dhimmi Watch link:

http://www.jihadwatch.org/dhimmiwatch/archives/019794.php

The full original news article to which Dhimmi Watch links and most of which it quotes has disappeared (perhaps this means nothing), but the Freepers caught it first. So it's here:

http://www.freerepublic.com/focus/f-news/1964131/posts

I have heard of this tendency among the official authorities... It is unspeakable and curiously incoherent: Christianity will be reproached for failing to be Twentieth Century feminism, and yet the very same calumniators will deliver to their tormentors terrified, fleeing women.

If a woman is violated, and no Christian, actual or nominal, is there to do it, is she really violated? Apparently not, according to certain priests of the orthodoxy.

Excellent summation of a now-tedious subject, Jeff. And that last remark in the comment above is, well, Zippyesque.

Despite it's unsavory subject matter, a comprehensive and incisive elucidation of the internal rot gnawing at the insides of a decrepit civilization. Progress has been made a kind of vague god, ill defined, yet militant in it's negativity. To the extent it, or it's rootless minions, have beliefs they center on secularism and a chronic flux, an open ended receptivity the new, deliberately striped of enduring standards or taste or even judgment properly and carefully used.

Tolerance is a tool, or weapon used to replace or diminish what's left of the Western legacy as well as one support to the new ignorance. It, in a word, helps make a grounding in what should be a treasured body of learning unnecessary.

I would only point out that absent a sense of the past the isolate mentioned above is neither isolate nor individual as once understood. Instead he is Ortega Y Gasset's Mass Man, too subject to the whims and currents of an unstable culture and to class politics, more receptacle, more a group member than individual.

Faith will be found, it is innate in humans. The problem is what kind of faith or allegiance is transplanted into the ahistorical vessel, the supposedly liberated man.

If you will forgive that the words are not mine:

"There flew the green standard of that great faith and strong civilization which has so often almost entered the great cities of the West; which long encircled Vienna, which was barely barred from Paris; but which had never before been seen in arms on the soil of England. At one end of the line stood Philip Ivywood, in a uniform of his own special creation, a compromise between the Sepoy and the Turkish uniform. The compromise worked more and more wildly in Joan's mind. If any impression remained it was merely that England had conquered India and Turkey had conquered England. Then she saw that Ivywood, for all his uniform, was not the Commander of these forces, for an old man, with a great scar on his face, which was not a European face, set himself in the front of the battle, as if it had been a battle in the old epics, and crossed swords with Patrick Dalroy. He had come to return the scar upon his forehead; and he returned it with many wounds . . ."

from The Flying Inn

the liberal order is parasitic upon the carcass of Christendom, presupposing its benefits while devouring the substance that would enable its reproduction.

Would you shout this from a few housetops, please? I've been saying this for decades, but nobody gets it.

This is particularly relevant in discussions with atheists like Hitchens, who rants about how obvious and innate are the morals taught by Christianity, and how anybody with a brain can know them. It's true that the moral laws are innate, but the ability to recognize them, honor them, and abide by them are not, and if it were not for the cultural momentum of Christianity in the West, atheists would run amok. Which they have, because the momentum is waning, and nearly spent.

But it's just as relevant in discussions with American leftists.

Good work, Maximos.

I read the BBC article, and I'm not sure what exactly the Bishop was trying to say but it gave an example that illustrates that 'some form' will be enacted because that it is already the law of free countries, namely individual freedom. To illustrate, look at the example given:

This morning it also emerged that Sharia crime courts are already operating in parts of Britain.

According to a youth worker, a group of Somali youths were arrested by police on suspicion of stabbing another Somali teenager.

But the victim's family told officers the matter would be settled out of court and the suspects were released on bail.

A Sharia court was convened and elders ordered the assailants to compensate the victim.

1. A person has a right to be bailed out of jail correct?

2. A person has a right to follow the presciptions of his religious elders no? (For example, if the teen was a Catholic and his priest advised him in confession to give the victim money to compensate him for his medical bills and time off work etc. he is free to follow through).

3. A victim of a crime has a right to drop charges to the degree that the law provides. Note the suspect was bailed out which means that criminal law still applies to him and a case is still pending. While the court may take into account his efforts to make ammends by compensating the victim and the court may also consider the victim's request for no additional punishment the law still applies. You can't go around stabbing people even if you are so charming you convince them after the fact to forgive you (or you meet their religious demands for justice).

Above is a depiction of individual freedom which is what the West is about.

Dr Williams pointed out that Jewish Beth Din courts already operate in Britain. But these, like sharia arrangements currently existing in Muslim areas, are voluntary understandings conducted with the agreement of participants.

Alternative sharia courts as proposed by the archbishop would dish out enforceable law.

Jewish courts do not operate because they are part of a "Western heritage". Islam is part of the Western heritage as well. Besides in the world of contracts there are plenty of clauses for various types of arbitration that have as much heritage behind them as the Spice Girls' last cd. They operate because people voluntarily opt to let them hear their disputes. To the degree that both sides agree to this, the Western heritage would say that their contract should be respected and enforced by law. The limit goes when you step beyond volunatary contract arbitration and start including criminal penalties (no, say, stoning to death (which was something ancient Jewish courts could order) even if the defendant agrees to be bound by such a ruling) or applying to those who do not consent to be part of such an arbitration system.

The other objection is "that according to sharia law itself, such legal recognition could only be a stepping stone, a rival sovereignty that, by the fact of its existence, not only undoes the Western achievement in law, but establishes the preconditions of further encroachments". Leaving aside the fact that I doubt any of us has a great knowledge of Sharia law...laywers can make even the most rock solid text as mushy as mud...the answer to this is "so what". In a free country the gov't has a right to prohibit infringements on liberty, not to infringe on liberty to prevent some hypothetical future attack that may or may not happen. In other words, a group of people have every right to advocate sharia law. They have a right to speak on its behalf, campaign for it, vote for candidates supporting it and even implementing it for their domestic disputes in the limited manner I depicted above. This cannot be stopped because hypothetically this may lead to some vote at some point in the future to institute shaira law. While this may happen, so can a lot of things. A pro-monarchy party might someday convince the population to institute an absolute monarch, that doesn't justify banning such a party today. What can also happen is that some elements of shiara law are found worthy and adopted while many others are not....producing a result that is far from what the original advocates would have wanted.


So there is no misunderstanding, here's the Powerpoint summary of this comment

* Western law already demands that contracts be abided by (within limits). Hence those who enter a contract to have Sharia arbitrate their dispute are no different than those who have a contract to use a coin flip to decide their dispute.

* The boundary is and should be are those entering the contract doing so of their own free will (consent) and does the contract incroach on public policy (such as criminal sanctions, calling for illegal acts etc.)

* The argument that Jewish courts are tolerated because they are part of our heritage has no validity. They are tolerated because those who use them do so of their own free will and their jurisdiction does not infringe on the public legal system. There are many other private arbitration systems that are newly minted with no heritage at all and are equally recognizable.

* The argument that shaira is special because it is a 'stepping stone' likewise has no validity. Yes someone today who sets up a shaira court to settle money disputes between like minded believers may tomorrow say his court should replace the judicial system and start issuing death sentences. There are an infinte number of 'stepping stones' that could be used by people today or tomorrow to advocate intolerable policies. It is the intolerable policies that should be opposed and prohibited but banning the advocacy of them is both unworkable and a violation of Western heritage.

"It is the intolerable policies that should be opposed and prohibited but banning the advocacy of them is both unworkable and a violation of Western heritage."

No, it is allowing an alien and hostile creed to hold sway in any part of the civilization that it strives to replace.

I have to agree with your analysis, Boonton.

Adjusting your absolute monarchy example a little: if we believe in a free democratic society, then we must be ready to accept the rule of Mohammedan law in the event that a majority of our population votes to establish a caliphate.

I would contend, however, that this is a flaw in the democratic process and one that should in all circumstances be repulsed, by bloody force if necessary. And quite frankly, if that means deporting otherwise innocent Mohammedan citizens, I’m all for it.

The spread of Mohammedanism is no less heinous by sword or by legislation.

I realize I’m arguing for a slightly-less-offensive Hitleresque population-cleansing of all those who disagree with me (fair treatment for Mohammedans and liberals – after abortionists have been subjected to the criminal law); but in terms of national culpability, I think Asa had the right idea (1 Kings 15.12).

Adjusting your absolute monarchy example a little: if we believe in a free democratic society, then we must be ready to accept the rule of Mohammedan law in the event that a majority of our population votes to establish a caliphate.

Actually I wouldn't say that. I'd say that we must believe in the right of someone to advocate abolishing democracy but we wouldn't have the actual right to do so. In other words, the fundamental rights of the Declaration of Independence still apply even if a majority votes to try to abolish them. But the strength of those fundamental rights is that they protect the freedom of those to put forth the argument that they are wrong.

This, of course, is only a mixed bag of goodies for would be revolutionaries. Like the free speech cases, the policy is you have the right to advocate overthrowing the gov't with force but you cross the line once you pick up the gun. Does this lead to the danger that overthrow advocates may be able to convince with protected speech a critical mass of people to make an insurrection unstoppable? Yes but that's not a flaw in the democratic process but a calculated risk that is balanced by the more likely gains of being able to freely consider any point of view...even whose programs will be 99% rejected.

I would contend, however, that this is a flaw in the democratic process and one that should in all circumstances be repulsed, by bloody force if necessary. And quite frankly, if that means deporting otherwise innocent Mohammedan citizens, I’m all for it.

You're a walking contradiction then. You advocate abolishing freedom in the name of protecting freedom. By your own standard you too should be deported by bloody force if necessary. Thank God you're not a robot on Star Trek, if you were this comment would have made your head explode.

I skimmed the original article, my quick thoughts re: Boonton's analysis:

Yes, choice of law provisions in contracts are routinely honoured, whether they are the law itself (i.e., "governed by the law of X", insert a state or country) or the deciding body (i.e., binding arbitration).

But in the article, the choice of law went to criminal/tort law. Here, assault with a deadly weapon. Choosing Sharia as the choice of law to supercede both British law and the British court is very different. There, Sharia has essentially been blessed by the state:

1. the state alone enforces punishment (reading between the lines, my guess is the man may have received lashings for his assault and battery)

2. contract disputes, in theory, are privately negotiated and hence its OK to exclude the state's role

I'm not a walking contradiction, "if we believe in a free democratic society" was a condition of the argument set forth. It doesn't presume I believe in a free democratic society.

In some circumstances, however, I wholeheartedly advocate the abolishment of certain freedoms to protect others. The freedom of "choice," for example.

And does the constitution prohibit picking up that gun "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another?" Or is your head exploding on Star Trek?

Royale,

I agree with you and said that in my original post. Sharia law's limits are those who do not consent to be bound by it AND when it steps into public policy which is where criminal cases are heard.

But the article was a bit deceptive. The teen wasn't getting a pass from British law, he was only bailed out. Presumably a criminal case is still pending against him and he is subject to punishment even if his sharia court says he has paid the penalty.

This is hardly unprecedented. There are plenty of times when violence is involved that all parties express a desire to 'settle the matter between ourselves'. The courts have the option of allowing this in less serious cases but they are by no means obligated to defer to them. As I said you have no right to go around stabbing people even if you can convince them after to forgive you.

I'm no lawyer but my understanding of the system is that it isn't the victim but the state that presses such charges. The state charged the boy with a crime not only because it was acting on behalf of the victim but also because the state itself has a right to prohibit people from assalting others inside its jurisdiction. Hence the boy has offended two entities, the state and his victim. He is perfectly free to settle his debt to the victim under sharia law if that is acceptable to him (just like he can settle his debt by buying his victim a pint if that happens to be the victim's preferred arbitration method). His debt to the state is a different matter.

Steve,

In some circumstances, however, I wholeheartedly advocate the abolishment of certain freedoms to protect others. The freedom of "choice," for example.

Be more specific here, exactly what freedoms are you protecting and what ones are you abolishing.

I'm not a walking contradiction,

Perhaps a sitting one then.

And does the constitution prohibit picking up that gun "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another?" Or is your head exploding on Star Trek?

Errr, you're quoting the Declaration of Independence, not the Constitution.

Thank you for the correction, for some reason I thought that was the fourteenth amendment. Sorry for assuming that the authors of one of our foundational documents wouldn't have contradicted themselves in another.

Be more specific? Abortion is a "freedom" established by our democracy. The establishment of Mohammedanism is equivalent.

Perhaps a sitting one then.

Thanks, keep 'em coming.

Above is a depiction of individual freedom which is what the West is about.

No, that is not what the West is about, not in the least. "Individual freedom" as the summum bonum of Western civilization is naught but an adumbration, which is to say, a simplification and distortion, of the broader Western tradition. Individual freedom, moreover, is not something which a civilization can even be "about", inasmuch is "individual freedom" is really a negational notion, a not-this or I-will, a declaration of the cipherhood of the subject and the civilization - which is to say that "individual freedom" presupposes the substantial nullity of the civilization itself. If "individual freedom" is the "core" of the West, then there exists no West, just as, if "economic freedom" is the "core" of the American idea, than America is not a nation, just as the libertoids argue.

Islam is part of the Western heritage as well.

No it is not. Islam was the bitter, millenial adversary of Western civilization, Catholic and Orthodox. Unless we are going to argue that being an enemy entails making a formative, substantial contribution to the essence of a civilization, this is arrant nonsense. What, is Islam a part of the Western heritage because we bought spices from them, or because we borrowed some science and Greek texts? Oh, wait - the Muslims got the science from the Byzantines, the math from the Byzantines and the Indians, and the philosophy from the Byzantines.

They have a right to speak on its behalf, campaign for it, vote for candidates supporting it and even implementing it for their domestic disputes in the limited manner I depicted above.

This is merely an exercise in petitio principii. First demonstrate that "individual freedom in the formation of private contracts" is the sine qua non of the West, and then this will follow. For what it is worth, no such demonstration can be made, for the simple, formal reason that no civilization can be reduced to such a dessicated abstraction; indeed, no civilization whatsoever can exist upon such a foundation, as the presupposition of the centrality of "individual freedom" affords no place for a civilization, ie. something transcending the generations, which each generation cultivates and extends into the future.

The argument that Jewish courts are tolerated because they are part of our heritage has no validity. They are tolerated because those who use them do so of their own free will and their jurisdiction does not infringe on the public legal system.

I'm scarcely interested in whatever nominalistic legalisms the liberal order employs in order to legitimate the practice; I'm interested in the ontology, which is as I've stated.

The argument that shaira is special because it is a 'stepping stone' likewise has no validity.

It's perfectly valid, inasmuch as nominalistic legalisms are about as valuable here as elsewhere, ie. not very valuable at all. Things are what they are; they are not what we say they are. Islam can no more become an integral element of the West than I can become a bear.

Right, and when some woman or girl says she "agrees" to be bound by the sharia court, we just don't ask any uncomfortable questions about the conditions under which she has "agreed" to have her divorce suit judged under sharia.

What do we do when the sharia court declares that a woman is already married to a man because her parents "married" her to him when she was two? Enforce that marriage contract? What if under sharia a man is married to four women, violating British laws against bigamy? Do we regard those as all valid marriages and require them to be treated as such? (E.g. In America, does an employer have to treat four women as legal spouses?)

Let's face it: The Jewish communities do not have the same history as the Muslim communities of beating and threatening murder to their vulnerable members--females and minor children especially--to get them to be bound by their religious laws.

And then there is, of course, the issue of punishments meted out by sharia that are illegitimate--lashings, hand-amputations, stonings, and the like.

Steve

There is no contradiction. If the time has come to 'dissolve the political band' of the Constitution then maybe picking up the gun is legitimate. But if it is not then picking up the gun is insurrection & the Constitution is very clear that it is legitimate to put down insurrection. Assuming that time has not come (and neither document says it must ever come), you have the freedom to advocate violent insurrection but that ends when you actually try to do it.

Be more specific? Abortion is a "freedom" established by our democracy. The establishment of Mohammedanism is equivalent.

You're not being specific and I suspect you're not being serious now.

Maximos,

The original DOI featured the right to "life, liberty and property" in the preamble. That was changed to persuit of happiness but either way it is absurd to speak of these without talking about individual freedom. To violate one's righ to life, for example, is to talk about an individual. You can't take away someone's life unjustly without taking away an individual's life. Needless to say it doesn't take a genius to see how the freedom to contract is integral to not only the founding of the American Republic but the British system that came before (and by extension deep roots in the rest of European history). I cannot tell you much about how Asia, the native Americans or aboriginal Austrailians viewed contracts but I suspect it being a fundamental right all cultures respected even imperfectly.

The right for free individuals to enter into contracts with each other is hardly an invention of Ayn Rand. It's didn't even make the Bill of Rights because it is one of the few rights specifically protected in the original Constitution. You're trying to square the circle. If you assert that individuals have freedom to contract they have the freedom to use shiara law in their contracts. If you don't then you can hardly claim to be acting in the Western heritage.

Things are what they are; they are not what we say they are. Islam can no more become an integral element of the West than I can become a bear.

Then there's no point in ranting about it. If such contracts are unworkable then they will fail and in the end they will never move beyond a few devotees who think they can pull off the impossible (joining a long list of other failed ideas like manufactured languages, novel economic theories, etc.). If they do have merit then others will continue to use them until they reach a point of confrontation with our larger values. At that point, if history is any guide, they are more likely to morph than morph everything else.

Read the remainder of the Declaration; it is a highly specific list of grievances which specifies, as a totality, the manner in which rights to life, liberty and property/happiness were being violated by the Crown. Though the famous preamble is ideological in form it is not ideological in substance, when considered in historical context. The signers of the Declaration were asserting that they possessed certain rights within the context of a determinate political tradition.

Contracts, moreover, always either fall within a bounded and determinate rule set of permissible contract-forms, or are simply regarded as null. That rule set has been modified countless times over the course of history, and is never open-ended; you cannot form any old contract that it occurs to you to form, not anywhere, not ever. The freedom of contract, as with all other freedoms, has its content specified by a determinate tradition; ours, being nominalistic, which is to say legalistic, tends toward abstraction and thus, towards seemingly intractable dilemmas surrounding The Other.

This is not a matter of the sharia contracts proving "unworkable". There are divergent standards for "workability" or success. Obviously, vast swathes of the Muslim world regard such contracts, more or less, as eminently "workable", and dismiss concerns about what we perceive as the barbarous consequences as nonsense; those consequences are features, for people who had it coming to them, because they didn't live as sharia specified.

I've enjoyed much of the excitement brought about by this. As for history, in Catholic countries, the norm before modernism inflicted us so badly was for ecclesiastical courts to adjudicate family law and minor torts. Up until the the Quiet Revolution (mid 1900s) in Quebec, this was still the case. Given the choice, I would prefer my marriage to be governed by Canon Law rather than the Wisconsin Administrative Code. The Muslims should likewise be able to be governed under sharia for their personal affairs.

I concur unreservedly on the point about ecclesiastical courts. I just won't extend the concurrence to sharia courts, for all the reasons I have given. Muslims have every opportunity to be legally bound by sharia courts - in Muslim countries. It seems to me that the extension to them of such a privilege is another relic of liberal modernity, and, for my part, I've already said my farewells to all that.

Boonton writes: "you have the right to advocate overthrowing the gov't with force but you cross the line once you pick up the gun."

False -- at least here in America:

18 USC 2385 Advocating overthrow of Government

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof —

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

Amen to Maximos' point on contracts. Some contracts ought not to be enforced. To take an American example, I believe that surrogate motherhood contacts ought not to be enforced. A man's contract to pay a prostitute for sex ought not to be enforced. There isn't a quodlibetal right to have any old contract enforced. And similarly, a man ought not to be able to divorce his wife by uttering "I divorce thee" three times, whatever a sharia court may say and even if she agreed to be bound by sharia law when entering into the marriage. Such a "divorce" ought not to be given the force of civil law. And that's just taking a relatively mild example, of course.

By having sharia, you wouldn't remove recource to civil rights. Williams states as much explicitly. Admittedly, of one refused to be governed under sharia, one may lose the priveleges of being a Muslim, but that is kind of the point.

MZ Forrest--a test case:

Suppose we have a group of people in our country who worship a false and monstrous god named Og. Their religious law states that they must burn incense to Og at stated times and places and also fast on certain days in worship of Og. They set up "Og courts" to decide if they are following these rules and to assess fines for those who do not. Og worshipers can sign a statement that they agree to be bound by the rulings of the Og courts. Should the civil government enforce a fine from an Og court upon a man who neglected to burn incense to Og on the requisite day? Perhaps garnish his wages and pay the penalty money to the priests of Og?

I think Lydia makes a strong point about women, especially young women, being able to consent to sharia law. How does one believe that the pursuit of protecting individual freedom leads us to codify and legitimize a system that is inherently oppressive to an entire sex? I recently heard Muslim men defending the tradition of female circumcision. They believed the French government was hostile toward their traditions in not only outlawing the practice in France, but making it illegal for fathers to take their daughters on a holiday that included mutilating them on the itenerary. How would a legitimate British sharia law approach such instances of child abuse?

This is a case of two divergent concepts of justice and law and even human rights. Perhaps we are headed for a Charles Napier like declaration. When the Brahmists priests complained that banning the suttee, burning the widow of a dead man alive on his funeral pyre, was an interference with their customs he famously responded, "My nation has a custom, when men burn women alive, we hang them. Let us all act according to national custom."

Jay

To what degree a culture cooperates with a sect is that culture's choice. In Germany and other European countries, the government collects the tithes. Many places have no issue supporting Catholic schools, including collecting taxes to support those schools, even taxes more explicit than a voucher.

Some contracts ought not to be enforced... A man's contract to pay a prostitute for sex ought not to be enforced.

Contracts involving illegal acts are not binding.

Lydia

Right, and when some woman or girl says she "agrees" to be bound by the sharia court, we just don't ask any uncomfortable questions about the conditions under which she has "agreed" to have her divorce suit judged under sharia.

On the contrary, duress is probably the easiest way to void a contract in the courts.

What do we do when the sharia court declares that a woman is already married to a man because her parents "married" her to him when she was two? Enforce that marriage contract? What if under sharia a man is married to four women, violating British laws against bigamy?

Very simple, contract law cannot violate public policy. This would be no different than a hitman who has a contract with a mob boss. His contract to kill people does not trump the murder laws. A polygamous marriage contract does not trump English marriage law no more than a Mormon dissident's marriage would override Utah's marriage law.

Let's face it: The Jewish communities do not have the same history as the Muslim communities of beating and threatening murder to their vulnerable members--females and minor children especially--to get them to be bound by their religious laws.

I don't know about beating and murder but Orthodox Jewish communities do have very strict gender norms. One could question whether their women can 'consent' to their culture if they are exposed to little else growing up. But this is irrelevant. Jewish, Muslim or other there you cannot beat and threaten to murder people. Such contracts would be unenforceable.

Freedom is a two way street. You are free to challenge the norms of your family and community. That doesn't alter the fact that doing so can be emotionally tramatic. The law can prohibit physical violence and can limit the worse type of verbal and emotional abuse but it cannot "liberate" people from the consquences of their decisions. A daughter of a devout Muslim family will probably lose her family if she decides to reject her faith. That is not a new story and hardly unique to Muslims (and not even unique to religion...no doubt somewhere there is a hippi-leftist family that has shunned their Alex Keaton like son). A free will was never a ticket to easy street and more than a few people give up some of their freedom in exchange for comfort.

I once did business with an observant Jew. He told me how once he had a dispute with someone and agreed to have matter heard in the Jewish court because he felt it was best to support his religion. They found against him (he was warned they almost always do in the type of case he had). He shruged and said to the guy "you got your judgement, now try to collect it". Can we ask if he agreed to the contract out of a free will or did he feel pressure by his family, friends and community to 'give in' to the religious court? Perhaps but it would be paternalistic and demaning to presume ahead of time that his choice was not free.

And then there is, of course, the issue of punishments meted out by sharia that are illegitimate--lashings, hand-amputations, stonings, and the like.

Addressed earlier. Jewish courts, in their original form, also could carry out such punishments. They also claimed jurisdiction over those who may not have wanted to be covered by them (for example, those born of a Jewish woman who no longer wanted to be considered Jews). Those aspects of their authority have no standing in the legal systems of modern developed countries.

The Beth Din courts to which Williams alludes were never that sort of Jewish courts, Boonton. They are a relatively modern invention that never issued such rulings at all. But sharia courts issue fatwas all over the world. Today. Now. Two women have recently been sentenced to be stoned to death in Iran. We need to look at the nature of what we are welcoming and not pretend that it is so easy as all that to limit.

MZ, I think you are not noticing the difference between German Lutheranism and my imaginary religion of Og. Do you actually think it does not _matter_ what sort of religion is established in a country and backed up by civil law? Do you want it to matter in the country you live in?

Aristocles, contracts involving illegal acts are not binding, well and good. But part of what is at issue here is a) what sort of acts should be illegal and b) whether there may be "contracts" or promises for acts not independently illegal that should not be legally enforced. Promising your daughter in marriage at the age of two is not technically illegal. You can say anything you like to the boy's father. Enforcing such a "contract" is a different matter altogether. Saying that you will give up your baby to another woman when it is born, and even voluntarily giving it up at birth for her to adopt, is not illegal. Having the civil government enforce that verbal contract by coming and taking the child away and giving it to the other woman is another matter altogether. Promising to burn incense to Og or pay money to the priest if you miss a day would not be illegal, but it should not be enforced by the government. And so forth. So the rule that contracts for illegal acts are not binding is not going to cover all of the cases involved.


M.Z. Forrest:
Admittedly, if one refused to be governed under sharia, one may lose the privileges of being a Muslim, but that is kind of the point.

Um, no, that's not all that Rowan is talking about, because Muslims already have that (as does every denomination of every religion). What's he's advocating is having civil law enforce sharia law.


Boonton:
Islam is part of the Western heritage as well.

See, you have to not say stuff like that if you want people to take you seriously.


I don't know about beating and murder but Orthodox Jewish communities do have very strict gender norms.

Oh, yeah, those are practically the same.

Our difference may not be that different, just expressed differently. Much of the commentary I've been reading places sharia in the unthinkable based on principle category. In Britain, I would more likely put it under the imprudent category, because it is still very much a minority religion. I think there are some considerations when dealing with minority cultures that need to be made. Implementing sharia within family situations and minor torts seems to be consistent with that, but I can understand arguments against it. I'm not against it in principle though, which many seem to be.

Deuce,
Certainly.

Paul J Cella,

You have indeed cited US code that sounds like you don't have the right to advocate the overthrow of the gov't but that's only a part of the story. There's plenty of clearly unconstitutional law that sits on the books forever because no one challenges it.

You're correct that the story is a bit more complicated than I made it sound . Holmes, for example, has given us the 'clear and present danger' test which would allow the law to be used in situations where the speech is very close to inciting an insurrection but would prohibit it from being enforceable in situations where there is no reasonable chance the audience is going to take up arms.

Lydia
Suppose we have a group of people in our country who worship a false and monstrous god named Og. Their religious law states that they must burn incense to Og at stated times and places and also fast on certain days in worship of Og. They set up "Og courts" to decide if they are following these rules and to assess fines for those who do not. Og worshipers can sign a statement that they agree to be bound by the rulings of the Og courts. Should the civil government enforce a fine from an Og court upon a man who neglected to burn incense to Og on the requisite day? Perhaps garnish his wages and pay the penalty money to the priests of Og?

Let's rephrase this, suppose you were hired as a lawyer because the Og worshippers want to set up such a system. Could you do this? Well you probably could. Suppose you set up a contract where the Og Church is incorporated. Every week Og worshippers pay a fee to the church which is returned (minus a service charge) for properly burning incense. Should a worshipper not show up one week or burn the incense improperly, his fee is forfeit (there's your fine) and to boot in order to worship next week he must pay double the fee!

I don't see any obvious reason why such a contract would not be legally binding in either US or British court.

To put a secular spin on it, how exactly does the NFL 'fine' a player or coach for doing something against the rules like leaving the field before the game is officially over? Just about the same thing. They have contracts that let the NFL meet out various fines and penalties and probably have their own mini-legal systems for resolving disputes. You are prefectly free not to be part of the NFL but if you do you have to agree to their system and yes if you're 'fined' they can even take you to court and get a judgement on you and garnish your wages. But as I said these contracts are limited by public policy...the NFL cannot, for example, have coaches stoned to death in the middle of the field.

There's plenty of clearly unconstitutional law that sits on the books forever because no one challenges it.

How predictable.

You might want to present that "obsolete law" argument to Mr. Omar Abdel-Rahman, the Blind Sheikh, who was convicted as recently as 1996 of "seditious conspiracy." Or you might even want to present to his lawyer, Ms. Lynne Stewart, who also sits in prison for conspiracy. She was convicted in 2005.

Sedition is a federal felony. Period. It is true that the Supreme Court has thrown out some sedition convictions on occasion; but the last one of those was decades ago, and the Court has never invalidated the statute.

Lydia

The Beth Din courts to which Williams alludes were never that sort of Jewish courts, Boonton. They are a relatively modern invention that never issued such rulings at all.

In other words Jewish law 'morphed' to accomodate itself to modern society.

But sharia courts issue fatwas all over the world. Today. Now. Two women have recently been sentenced to be stoned to death in Iran. We need to look at the nature of what we are welcoming and not pretend that it is so easy as all that to limit.

A fatwa is a religious edict and as such are about as numerous as blog posts on the Internet and are only slightly more consistent. I've read that Iran, for example, has essentially legalized prostitution using a type of quickie 'temporary marriage' (essentially you 'marry' the woman for like an hour and then divorce her so no one is guilty of extramarital sex). I would advise against trying to use the fatwas approving that to set up shop in, say, Saudi Arabia.

Aristocles, contracts involving illegal acts are not binding, well and good. But part of what is at issue here is a) what sort of acts should be illegal and b) whether there may be "contracts" or promises for acts not independently illegal that should not be legally enforced. Promising your daughter in marriage at the age of two is not technically illegal. You can say anything you like to the boy's father. Enforcing such a "contract" is a different matter altogether.

Actually such a contract may be enforceable but not in the way you think. Courts will generally not enforce a contract by ordering specific acts but will award money for a breach. To use an easy example, you sign a contract to sing for one year at the Tropicana Casino. You break the contract to go on a world tour. The court will not order you to be taken in handcuffs and forced to sing on stage at the Tropicana, but they will award a monetary judgement to the casino.

In the example you cited, the father of the non-bride might have to pay damages to the father of the son. For example, suppose the father of the son gave the father of the daughter a house to give as a wedding present. Now that the marriage will not happen the father may have to pay the other father for failing to deliever. If you ever took a business law class, you may recall that promises are not usually considered contracts, contracts must have consideration which means that both sides must agree to exchange something.

You may also recall that you can get sued for breaching a marriage contract. If you break an engagement, for example, your boyfriend can demand you return the engagement ring he gave you. If he breaks it, then you can keep it.

In the arranged marriage case above, nothing could be enforceable agaisnt the woman unless she entered into sometype of agreement as an adult.

"You have indeed cited US code that sounds like you don't have the right to advocate the overthrow of the gov't but that's only a part of the story. There's plenty of clearly unconstitutional law that sits on the books forever because no one challenges it."

Sorry chief, you're on weak footting here. Some sedition laws have been upheld, some have not. At best all that can be said is that SCOTUS has been inconsistent over the years. The constitutionality of that law in question - who knows.

Maximos

That rule set has been modified countless times over the course of history, and is never open-ended; you cannot form any old contract that it occurs to you to form, not anywhere, not ever. The freedom of contract, as with all other freedoms, has its content specified by a determinate tradition; ours, being nominalistic, which is to say legalistic, tends toward abstraction and thus, towards seemingly intractable dilemmas surrounding The Other.

Yawn, cut back on the words a bit please. Look at the specific example in front of us with the teen. I don't know if a contract exists but let's try to see how one might to see if it does or doesn't fit our Western legal heritage.

Suppose the contract is along the following lines; "Teen agrees to pay victim for his medical bills and lost wages incurred by his stabbing him. Victim agrees to ask the court not to punish the teen and to drop any charges as the victim the victim may be legally entitled to do. Local Mosque agrees to allow both teen and victim to continue to be members in good standing provided they abide by this contract"

You've got a very boring example of a contract there...hardly anything novel to the western tradition. To see just how boring it is, take out "Mosque" and put in "Country Club" or "Lodge" or whatever else you want. Now what would be unique and a real challenge to the western tradition would be saying the above contract was unenforceable because the word "Mosque" is in it but would be enforceable if the party was someone else.

You can state it even stronger, Royale: the Court has had ample opportunity to throw out current sedition law, which dates from the 1940 Smith Act, I believe -- but it never has. The law is constitutional.

And, not to open up another can of worms, but I deny the Court's final prerogative in judging constitutionality.

Paul,

"has had ample opportunity to throw out current sedition law, which dates from the 1940 Smith Act"

Has it? The court cannot just toss out laws, it has to hear cases brought in front of them. To start with, then, you need cases of people actually charged with a crime under the 1940 Smith Act? Got any stats or cases?

Regarding my example contract:

Don't misread 'enforceable' to mean specific performance. Suppose the victim, after getting the money from the teen, does not follow through on his side of the agreement and asks the British court to punish the teen. Normally the teen could sue the victim and demand a judgement to get his money back. (Granted such an act would be moot since the victim would almost certainly be able to win an equal judgement from the civil court against the teen).

And Paul, if you don't take the Court to be the last word on Constitutionality why would you take Congress to be so? A simple reading of the first amendment does not give comfort to the assertion that blanket law outlawing all speech advocating a violent overthrow of the gov't could be constitutional.

I'm not really interested in your specific example, because I've already made it manifest that my objection is to any Muslim legal authority operating anywhere in the West so as to supercede, modify, or operate parallel to Western legal norms. Now, I am aware of specific cases in which churches have interceded to have relatively minor criminal charges dropped or mitigated, and I don't grant the analogy to Islamic institutions: Islam should not be accorded a position of legal equality in this manner.

As regards verbiage, I'll use as much, or as little, as it pleases me to use.

Suppose the contract is along the following lines; "Teen agrees to pay victim for his medical bills and lost wages incurred by his stabbing him. Victim agrees to ask the court not to punish the teen and to drop any charges as the victim the victim may be legally entitled to do. Local Mosque agrees to allow both teen and victim to continue to be members in good standing provided they abide by this contract"

You've got a very boring example of a contract there...hardly anything novel to the western tradition. To see just how boring it is, take out "Mosque" and put in "Country Club" or "Lodge" or whatever else you want.

Really? Country Clubs and Lodges participate in trying to get prosecutors not to prosecute and seek normal, criminal law punishments for stabbings by arbitraring financial agreements instead? Why have I never heard of these fascinating attempts to alter the ordinary penalties of criminal law by the local Moose Lodge?

Lydia,

You'll note that nothing in the contract talked about getting prosecutors to do anything and yes this type of contract is hardly unique.

Maximos
Now, I am aware of specific cases in which churches have interceded to have relatively minor criminal charges dropped or mitigated, and I don't grant the analogy to Islamic institutions: Islam should not be accorded a position of legal equality in this manner.

Which it isn't anymore than the NFL is given legal equality when they 'fine' players and coaches. The legal equality is between the teen (as much as he is legally able to contract), the victim and the Mosque. These legal actors have no less right to enter into binding contracts than anyone else.

If you're not objecting to the contract, then we are in agreement which is clear from my first comment.

Of course Islam would be accorded status as a parallel legal sovereignty if contracts undertaken by Muslims in a mosque could override the ordinary penalties of the criminal law. As far as I am concerned, those folks can undertake whatever games of "let's pretend" that suit them, but it should be of no consequence as far as the criminal justice apparatus in concerned. Commit an assault, and you will serve the sentence, regardless of what some nonbinding contract witnessed by an Imam says.

I should think, too (but I could be wrong) that when churches thus intercede, this is just a sort of "amicus" thing. They are giving their opinion on the case, making a request, or whatever. It's really quite a different matter for the police to say, "Oh, okay, the 'community' is 'handling' it" and then, in effect, to step aside.

And if we will take this approach on a stabbing (which is pretty serious stuff), how far will we go? A rape? Wife beating?

Well, in certain benighted European nations, we know the answer to the latter questions: spousal rape and wife beatings don't really occur because "community norms" regard them as other things.

Boonton,

Suppose the contract is along the following lines; "Teen agrees to pay victim for his medical bills and lost wages incurred by his stabbing him. Victim agrees to ask the court not to punish the teen and to drop any charges as the victim the victim may be legally entitled to do. Local Mosque agrees to allow both teen and victim to continue to be members in good standing provided they abide by this contract"

Aren't the terms which you've outlined here invalid and essentially make the contract null and void?

The stabbing committed by the person in question would still make him liable to criminal prosecution by U.S. law regardless of any contract that would stipulate otherwise.

Unless, of course, the act was committed on soverign soil not subject to U.S. law.

Never mind. I see while I was in the midst of writing my comments, the point had already been raised by another.

I think liberals who think about comments like Williams's (and certainly Williams himself) wilfully refuse to recognize the following:

1) Muslims in Britain, many of them, undoubtedly want to establish full sharia law in which the secular law will stand by while wives are beaten, girls circumcised, apostates killed, pork banned, and blasphemy punished, or in which the secular law will actively assist in enforcing these aspects of Islamic law. Muslims in Britain and Europe are quite open about wanting to have no-go areas in which they are a law to themselves, at a minimum. No other group is aggressive in this way; no Local Lodge or Beth Din Jewish court or other institutional entity has these goals or this aggressiveness in trying to move them forward. The analogy fails right there.

2) The authorities in Britain are already frighteningly apathetic, tentative, and in some cases even complicitous in this process because of political correctness. The article to which I linked states that police are afraid of charges of "racism" if they try to pursue cases of domestic violence in the Muslim community. This is a disanalogy. No one is afraid of offending the Moose Lodge or the British Jewish community by punishing somebody for a stabbing or for beating his daughter or sending her death threats! Formal recognition of *any* aspect of sharia would only reinforce this tentativeness, this overall sense within the supposed forces of law and order that the Muslims must be left alone to "do their own thing" even when this means abusing members of their own community. This problem is, of course, exacerbated by the presence of Muslims in the police force itself.

Commit an assault, and you will serve the sentence, regardless of what some nonbinding contract witnessed by an Imam says.

Of course but the contract is hardly nonbinding. If the teen and victim agree to let the Imam set a 'just compensation' then that's as binding on them as if they had the national association of arbitrators set the compensation.

If the victim agrees to the contract and then breaks his side the teen can sue for breach. It doesn't, of course, free him from criminal prosecution.

Lydia
I should think, too (but I could be wrong) that when churches thus intercede, this is just a sort of "amicus" thing. They are giving their opinion on the case, making a request, or whatever. It's really quite a different matter for the police to say, "Oh, okay, the 'community' is 'handling' it" and then, in effect, to step aside.

Well people say this sort of thing all the time. Maybe not so often an Imam but I'm sure the police hear "No we aren't pressing charges, we are keeping it inside the family" quite often. This isn't news Lydia, if you bothered to read the first post you wouldn't be trying to confuse the issue. The teen simply posted bail. As you should know, posting bail is not getting a walk on criminal charges, it simply gets you out of jail until your case comes to court. Having bail, in fact, means you are still under criminal sanction.

Aristocles
Aren't the terms which you've outlined here invalid and essentially make the contract null and void?

The stabbing committed by the person in question would still make him liable to criminal prosecution by U.S. law regardless of any contract that would stipulate otherwise.

Read the terms carefully, the prosecutor is not a party to the contract only the victim. The victim agrees to simply not ask for any punishment from the state. The state is under no obligation in the contract. Criminal prosecution is done not on behalf of victims but "the people" (i.e. the state). We do not know how serious the stabbing is but the state often gives some consideration to the desires of the victim of a crime but usually it depends on how serious the crime was. If the victim only suffered a minor wound the state might very well let the victim make the call on whether or not to prosecute. If the wounds were serious the state may not care what the victim thinks and go full force.

Contracts like the above happen all the time except the complication that makes it a bit unusual is the level of compensation is being set by a third party that both the victim and teen agree on. More often there isn't a 3rd party setting the compensation that both sides would agree on, instead the two sides would more often contract directly with each other. In other words, imagine the teen's father having his lawyer make an offer to the victim and the victim telling his lawyer he accepts or doesn't. The difference is since these two parties share a common belief in a religious authority they let it set a compensation level rather than simply making it a bargaining game between their lawyers.

Lydia's two points from her 4:52PM post

1) Muslims in Britain, many of them, undoubtedly want to establish full sharia law in which the secular law will stand by while wives are beaten, girls circumcised, apostates killed, pork banned, and blasphemy punished, ...

This was my 'so what' point. They very well may want this but there's always a difference between what you want and what you can get. A free country cannot give them that but it can and actually has to give them what I outlined. If they are unhappy with it they will be unhappy.

2) The authorities in Britain are already frighteningly apathetic, tentative, and in some cases even complicitous in this process because of political correctness. The article to which I linked states that police are afraid of charges of "racism" if they try to pursue cases of domestic violence in the Muslim community.

No disagreement there except to say I don't live in Britain and my efforts to keep informed on Britain are limited to scanning the headlines and reading articles here and there. That, of course, leaves one open to the fact that the press is more given to the tabloid headline. If what you're saying is true, I agree 100%...Muslims who live in Britain have to follow its laws about domestic violence and if that is too much culture shock for them to accept they should leave.

And...you _don't_ think that the formal recognition of supposedly harmless aspects of sharia law and the judgements of sharia court would accelerate the trend mentioned in my point 2, Boonton? As a sociological matter? Causally? And is this a problem, if so?

By the way, your analogy of getting a partial refund of your religious offering if you carry out religious duties really leaves nothing for the secular government to do to enforce the "fine." I do not want the government enforcing Islamic rulings. Period. Even when these don't seem "so bad." If there is some precedent for their doing so, I want them to stop. Similarly, if there were a religion of Og, I don't want the government enforcing its dues.

Boonton:

The last books I read on the subject were Walter Berns careful and discerning The First Amendment and the Future of American Democracy and Geoffrey Stone's expansive Perilous Times. One on the Right; one on the Left. Both were library books and I don't have my notes at hand. IIRC, there was a slue of sedition cases during the early Cold War years, quite a number of which eventually reached the Supreme Court. These tapered off from the 1960s through the 1970s. There have been very few since. Most War on Terror cases have come under different statutes, "material support" of terror groups and the like.

Berns's book demonstrates nothing so much as how confusing and even contradictory the Court's pronouncements have been. Only a scholar can make sense of the mess.

Which leads me to my answer to your second question: I deny that the Court has the final and irrevocable say on constitutional matters because I believe that the Constitution sets up a system of self-government, and government by nine life-tenured judges is not that. Moreover, I do not read the First Amendment as the very heart and soul of the Constiution, capable of giving cause to overrule everything else. For instance, the Preamble to that same document tells us that one of the purposes to which We the People have set ourselves is "domestic tranquility" and "the common defense" and even "Justice." A First Amendment absolutism which falsifies these purposes is not a defensible constitutional theory.

or would that be slew?

Lydia

And...you _don't_ think that the formal recognition of supposedly harmless aspects of sharia law and the judgements of sharia court would accelerate the trend mentioned in my point 2, Boonton? As a sociological matter? Causally? And is this a problem, if so?

There is no recognition of either harmless or harmful aspects of sharia law. I have no idea what the sharia penalty is for stabbing someone and I have no idea if the compensation is the right or wrong. The formal recognition is simply of the individual's right to free contract within the limits we have already discussed.

By the way, your analogy of getting a partial refund of your religious offering if you carry out religious duties really leaves nothing for the secular government to do to enforce the "fine."

You could rewrite the hypothetical (it's not technically an analogy) where the religion does indeed 'fine' its members. The model to use would probably be the NFL which is able to 'fine' players, coaches and so on because all the parties have a contract with the NFL which permits this in exchange for membership.

Similarly, if there were a religion of Og, I don't want the government enforcing its dues.

Gov't doesn't enforce its dues anymore than it enforces the NFL. The right to contract derives from the right to private property. The civil courts have jurisdiction over disputes of who owns what property. A suit for breach of contract, therefore, can be thought of as asking the court to decide who owns what. In the case where you are sued and the person wins a judgement on you, the courts are essentially saying they have the right to some of your property (say your bank account up to the point it satisfies the judgement). Og followers are no less entitled to their property than you are.

Boonton,

Read the terms carefully, the prosecutor is not a party to the contract only the victim.

I didn't say that the prosecutor was ever a party; only that just because a contract states that the victim agrees he'll not press any charges doesn't necessarily mean the State won't pursue a criminal case against the person in question for actually stabbing a person.

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