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Today you hear allot of people talking about loophole abuse and ways to meet the letter of a law without the spirit of it.

In truth as I understand it that isn't always the case, and common law already has a good degree of concepts that are designed to avoid blatant exploiting of loophole or adherence to letter of the law beyond reason or fairness. For instance a contract that was patently unfair to one side,which is signed under duress, or is designed to prevent someone from understanding what they were agreeing to will often be nullified by the courts as clearly not keeping with the spirit of a fair agreement (through various different common law concepts).

However, I'm wondering about a world that took this a step further, where their culture and society puts a heavy emphasis on spirit of agreement and does not approve of loophole abuse in any format; and the legal system is built around this cultural belief. I want to create a legal system that prioritizes the spirit of the law in addition to the explicit letter of the law wherever possible, while still being a viable and fair system.

To give an example, and I'm not necessarily committed to this example...

Imagine a situation where laws had two parts, a spelling out of the actual law and rules as exist now, and a second step describing spirit and intent of the rule, why it was written and what it is desired to do and not do. At a later date in addition to traditional legal augments and appeal process there is a separate way to argue that someone is in violation of the letter of the law, but not the spirit. An appeal may propagate up through the court in much the same way we have now to argue rather the laws spirit is violated by finding someone guilty.

Similarly, someone may have some way to draw the courts attention to loophole abuse where someone is not in violation of the technical law, but in violation of the spirit of the law. This can lead to a court case and prosecution as well. Presumably punishments for violating the spirit of a law would be less severe then the letter of the law, and be based partially off of the severity of the violation of the spirit.

In cases where an entity is not certain rather a decision is violation of spirit of the law will have a way to petition the court for a decision prior to acting in given manner. Those that petition the court and don't get a ruling are generally treated very favorably if their later seen as violating spirit on the presumption that they were acting in good faith.

Any ruling on spirit of a law will become a precedent that affect future laws as with current rulings.

In effect this is not too far away from common law now, particularly common law as it applies to personal individuals interaction (contracts between individuals and the like). However, I'm looking at simply expanding the idea by including more detail on spirit and intent of the law when a law is written. I also want to expand it further into areas where statutory law is more common in modern legal systems.

To give an example, say you have a law that says that sex with a minor is punishable by some penalty; I think we all mostly agree with this. In my system part of the law would explain the intent, the emotional harm of adults forcing children, how children feel the need to listen to adults make them easily susceptible, and how children may not understand sex and sexuality enough to make an informed decision etc etc.

Later two individuals, both minors of approximately the same age, choose to have sex without being compelled and are caught. Both minors have had sex with a minor, which means both have violated the letter of the law. However, the spirit of the law was written in such a way to make it clear that the intent was to protect minors from being compelled by adults, which did not happen. A ruling may find them technically in violation of the law, but not in violation of the spirit since the harm the law was trying to avoid does not apply here. This becomes a precedent which applies to other minors of similar age in the future. Later you may have situations such as a 17 year 11 month old man having sex with a 18 year 0 month old women and find it technically violating the law, since one is under 18, but argue the spirit does not apply. Further ruling on more complex situations will help to cover any similar ambiguities over time.

My question is how could a system like this be developed such that it works. Which is to say that the spirit of law is considered, but we don't bog down society with a million people all claiming their case fits the spirit of the law. Or, the harder to imagine, how to reliable handle situations where someone abides by the letter of the law and later is found guilty of the spirit without creating a situation that is unfair or leaves people afraid of always being found guilty of a spirit violation while acting in good faith.

Can society move much further towards a legal system with spirit of the law as a key tenant that is still consistent and fair, or is the concept of 'spirit' too ambiguous and thus too prone to someone finding out they violated a law without knowing it? Are there legal rules we could set to help address situations where one is found guilty of spirit of a law that will still be fair to them?

In addition if a society very culture was built along spirit of a law how will it handle appeals. Finding someone guilty of a law and later setting them free on appeal due to finding that finding them guilty is not within the spirit of the law seems viable, but that would imply the person being in jail until the appeal goes through; and a culture that had spirit of a law ingrained into it may be offended that someone would have to spend time in jail while we 'proved' they were acting in keeping with the spirit of a law. Can a more responsive system be developed, that considers spirit of the law from the begging, exist without leading to an overwhelmed court where everyone argues they are in keeping with spirit?

While I welcome arguments that this simply can't be done I am looking for ways to make it happen. I'm open to a system that still is close to ours with strict rules, and with only certain avenues for handling spirit of a law ruling, if that is the only approach that seems viable; but I appreciate a best attempt at suggesting how legal system could be developed to consider spirit in any manner while still being viable for large first world country governance.

Edit: to clarify I do not need an all or nothing approach. I'm okay with objective laws without 'spirit' clauses existing in some cases, and suspect they must. My question is how can a realistic society focus more on spirit of the law then current systems; that does not require throwing out all objective rulings or making everything based purely off of legal intent. It may be the only viable system is only a minor tweak from our current system, and that is a sufficient answer.

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    $\begingroup$ You might want to search for Chthonic Law. The short answer is: once people write down authoritative explanations of what the Spirit of the Law really is, those are by definition written laws and people start lawyering them, too. $\endgroup$ – Davislor Sep 8 '15 at 19:34
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    $\begingroup$ What happens in your society if each side really did believe that their interpretation was the correct spirit of the agreement they made? $\endgroup$ – Random832 Sep 8 '15 at 21:27
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    $\begingroup$ AFAIK, the core principle behind all legal code ever in the real world is that the public should know what is illegal and what the punishment is for doing illegal things (e.g. if you steal, you lose a hand). This requires some amount of focus on the letter of the law, so as to clarify the spirit and to offer peace of mind and protection to the populace (e.g. Hammurabi promises not to have your hand cut off unless you steal). If you don't want that, I think whatever substitute you use will have to be very alien, at least in its principles. $\endgroup$ – user2781 Sep 9 '15 at 1:32
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    $\begingroup$ A law with loopholes that can be abused is simply a badly written law, and that is why there are many books on the law - to try to cover these loopholes. The problem with "the spirit" is that now you have to give more power to judges to interpret the spirit. This means that it is a lot more open to moralising and even may depend the mood of the individual judge on the day, as well as adding time to the resolution of cases as expert witnesses need to be called in (e.g. a psychologist to assess the maturity difference between the 18 year old and the 17 year old in your example) $\endgroup$ – colmde Sep 10 '15 at 11:23
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    $\begingroup$ This question looked really interesting. Then I started reading a ten page question and answer, with comments the size of paragraphs. This question is quite in depth, and not for the faint of heart. $\endgroup$ – Xandar The Zenon Feb 8 '16 at 3:32
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This is actually really easy to visualize. Take a look at the US judicial system: it's the system you are looking at. The legislature passes laws, and the judicial branch builds up a history of cases forming precedent for how to interpret the laws.

That's not what you're looking for? I figured as much, but it seemed like as good of a starting point as any. My suggestion fits the letter of your question, but not your spirit! Lets dig further, shall we?

The single biggest factor preventing US law from becoming what you want is the fanatical obsession with "equality" and "objectivity." Such objective words are an anathema for "spirit of the law" thinking. If the spirit of the law could be captured in objective terms, then we would have no need for it -- the letter of the law would suffice. If we want to have more attention drawn to the spirit of the law, we need more power taken out of the law and put... elsewhere. This brings up the key question: who judges according to the spirit of the law. I will assume there is a judge, trained in such matters, but I think there's room for more open solutions like a jury of peers (assuming you can inspire enough conscious thought in the average citizen to make a collection of them worth of being called a good judge of law). Regardless, there will be an entity (which I will call a Judge), which will need great latitude in its decision making capacity.

One class of Judges which meet our needs are the Magistrates. Not only do they decide guilty or innocent, but they have power to pass sentence at the same time. Not dividing this power in two gives the Magistrate great power to do brilliant sentencing. From one book I read, The Diamond Age: or a Young Lady's Primer, they had a sentencing by a magistrate for "100 lashes, 99 suspended," with some clever requirements placed on the suspended sentence. If a separate entity, such as a jury, had to decide guilt, and a judge proscribed punishment, it would be harder for the jury to trust the judge to be fair.

So those are some pieces. How about we dig deep down into what a judicial system is, and see if we can pull some more details from that. The fundamental assumption that can be had with any judicial system, especially one based on the spirit of the law, is that there is a disagreement between two or more parties. This is important because it points out that judicial systems crop up on the sharpest edge of society. On one side, everyone is behaving in accord. On the other side, there are disagreements which are so irreconcilable that you need a force of law.

I think the application of this is important for your "spirit of the law" approach. The judicial system is literally acting as the power of the nation pressing downward to resolve conflict that requires more force than can be applied in smaller doses. The "feel" of that force is important. If it feels like a sword, you will end up with King Solomon's law, threatening to slice the child in half to resolve a dispute. If it feels like a bunch of cogs whirling, you can expect to find a class of individuals who have practice in aligning those cogs to reach a desired verdict (we call these "lawyers" in our world).

Clearly some tasks have different needs of force than others. A divorce settlement needs more loving care than a murder trial, which calls for more exacting justice. We need a smooth gradient. However, it is often hard to determine what severity to use at the start of a proceedings. If one likes the concept of "innocent until proven guilty" then we need to start all proceedings as "soft" and work our way up to "hard."


So I think that's enough backstory. I think it's time to start cracking on what such a system will look like. Fundamental to this system is the assumption that if, at any time, one side's argument feels objective, without any subjective component to it, it may be cordoned off and resolved objectively, according to the letter of the law. Any argument that wishes to be heard for longer than that must retain some subjective disagreement for the proceedings to resolve. Our system certainly has that in many places, but this behavior will be more noticeable here.

To adapt to levels of severity, a pyramidal structure will be stood up, similar in shape to the US system of courts, but with very different behaviors. The pyramid starts very wide, but exponentially gets narrower as it approaches the more severe parts (the actual rate of narrowing would depend on the culture).

Now for the primary difference: the court never issues objective rulings on any subjective disagreement. This is very different from our courts, where guilty and innocent are objective terms that are part of the court's duties. When entering the legal system, each side (or all sides, in the case of 3 or more parties) enters an argument, containing subjective content. From this point on, court is in session until the issue is resolved. The courts can do one of four actions

  1. If both sides agree upon any objective facts, the courts may act upon them objectively. For example, if there is an argument about a theft, where the items stolen is disagreed upon, the court may assign punishment based on a stolen necklace that both sides agree was stolen while simultaneously continuing to explore the disputed question of whether the $500 stolen at the same time was actually the property of the thief or not.
  2. If there is disagreement about objective facts, the court usually may take no action. Sorry, no dice. This courtroom does not arbitrarily declare guilt or innocence based on evidence. It calls for agreement. (Sound impossible in a murder trial? The "harder" courts can make your life miserable during the proceedings, to get you to confess. The question of "duress" is only offset by the expectation that these high judges who would do such a thing are some of the most civil and conscious judicial minds on the planet, and are expected to use their power in kind. Also, see the discussion of "scaffolding" later, which can be used to retrain judges which are too trigger happy).
  3. If both sides agree upon any subjective statements, they may "go in peace," and such subjective claims are deemed closed.
  4. If there is disagreement upon any subjective statements, the courts may seek to mold the wordings and meanings into a form which is easier to decide upon. This is the case where the "softness" of the system is decided. The harder the courts, the more force they apply to massaging the wordings. If a case reaches high enough levels, the court may literally bend the wordings and meanings faster than the legal council can hold onto them, resolving the issue quickly. This is not considered to be a fault in the system -- it's a fault on the lawyer for trying to escalate to a higher court than they were comfortable with, and getting burned for it.

Now for the last detail: courts do not always decide directly on cases. In our world the connection from case to courtroom is very strict. The supreme court hears a case with clear lines to a lower courts proceedings. Instead, courts act upon disagreements. The higher courts serve to resolve disagreement in the lower court systems. However, there is no requirement that this be a simple connection. Instead, the court system's job is to properly bundle up disagreements to be decided by the highest courts. There may or may not be a clear connection to a set of cases on the bottom. In fact, the cases may have been resolved amicably, but the lower courts generated so much internal disagreement by doing so that the higher courts must step in long after the fact to smooth the courts over -- otherwise they would exhibit strong biases.

This has an interesting effect of allowing some "free" disputes, which are disputes being dealt with in the higher courts but which have no clear connection to an existing case. This sounds wasteful, but its part of the system. It allows the judicial system to keep up with the times, rather than having to lag behind them, waiting for a case to cross their courtroom.

The system, of course, needs to be held down to laws, or else it gets to be a tricky concept in a hurry. The written laws, being the letter of the law and not the spirit, are not directly included in the proceedings. However, at any place in this pyramid, it is valid for a "nearby" judge to call for a disagreement about the handling of an issue. If this occurs, the law is treated as a "scaffolding" from which to better develop agreement. The scaffolding is brought into the disagreement in subjective wordings, and those words are used to resolve the disagreement within the courtrooms, using the same approaches as resolving subjective disagreements between individuals. This is a key feature: there is only one system to train and act, not two separate systems.

A final piece to put in place is the overflow valve. In theory, an issue could polarize the nation so greatly that the judges cannot come to an opinion, even as they directly continue to act


A note on the ability to act on people while decisions are being made, instead of after: In our "objective" court rooms, things like duress confessions are considered illegal. This is because they violate the objectivity of the statement, and subject someone to the letter of the law in an unacceptable form. However, when the issues are subjective, the ability to cause duress substantially changes the flavor of the proceedings, turning them into more of a conversation instead of a query/reply. For instance, take software patent trolls. The court systems would have enough power to "capture" them, affecting their day to day business. Done to a single troll, it would be cruel and abuse of force. However, if the courts were to structure several hundred patent proceedings into one properly sharpened debate in the high courts, the high courts may elect to push on the patent trolls until they can work with the defendants to suggest new resolutions at the lower levels. Perhaps some rules regarding patent law may never actually get written down, but exist as a convention agreed upon by all when the court systems actually flexed their might.

Also, it is worth noting that nothing in this system suggests "unbiased" is of high value. In fact, the only part resembling unbiased is how a judge may bring up a disagreement written within the scaffolding of the word of law. There will be regions of this system which are more lenient to one group of individuals or another. This is okay, because we are not going for "unbiased," we're going for spirit of the law. It is expected that egregious differences between judges will be smoothed out as part of the system trying to attain its own ideal, but it is never expected that it will be fully "unbiased." This, of course, opens up doors as well. If a section of the court system is busy dealing with gay marriage issues (a hot button issue today), it would make it easier for people's arguments to be heard in that venue. However, it also means those who chose to mob the system are subject to being treated as a mob. If the mob turns out to be unwise, and loses their disagreements, those individuals may be caught in mob justice. To use the existing hot-button issue as a highly contentious landmine of an example, the religious constituents who opposed gay marriage may find that not only did they lose the argument, but they may lose rights as well. As part of arguing their "sanctity of marriage" argument, they may elect to accept a court-sanctioned document making it much harder for them to divorce (as they put their money where their mouth was on the sanctity of marriage argument). Note that this doesn't show up as a "punishment," as much as it was part of the proceedings. If a defendant can be pushed into admissions on the borderline of duress, it's only fair that the prosecution can be convinced to demonstrate their argument with actions rather than words, and be bound to those actions long after the proceedings are over.

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    $\begingroup$ To tie it in a bow, I think it's worth pointing out that some of these capabilities do indeed exist within the confines of US law. However, the goal of a legal proceeding is to remove as much of that as possible, replacing it with objectivity. In the case of this system, the opposite behavior occurs -- objectivity is removed as fast as possible, leaving only spirit. $\endgroup$ – Cort Ammon - Reinstate Monica Sep 8 '15 at 17:35
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    $\begingroup$ I like allot of your reasoning, but I'm not certain the system would work. What if you have a disparity in defendents. A giant corporation claims I owe them 1,000 dollars that I don't. If the corporation makes a policy of refusing to 'agree' with me it may cost them 20,000 dollars worth of 'court costs' before we finally come to an agreement (of my paying them 1,000 to just make court end); but if everyone knows the company will do that no one will bother fighting. I think at some point someone needs to say "no, your abusing the legal system, this is not in spirit of our legal system" $\endgroup$ – dsollen Sep 8 '15 at 18:14
  • $\begingroup$ What prevents the court from eventually making a ruling of right or wrong? they can rule on severity of wrong by adjusting punishment; but even giving up on hard objectivness cant a jury be the decider of subjective decisions if two sides refuse to come to an agrement? I also am not oppose to some degree of objectivness, a higher emphasis on spirit of a law need not refuse ever choosing objective laws; it is not a boolean all or nothing approach $\endgroup$ – dsollen Sep 8 '15 at 18:16
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    $\begingroup$ @dsollen Note that many analysts say that exactly the opposite problem exists in our present system: The big company claims you owe them \$1000. You say you don't. They know that taking you to court will cost them \$20,000 in lawyers' fees while you are representing yourself so it will cost you nothing. If the jury is at all in doubt, they are likely to err on the side of the little guy on the reasoning that the big company can afford to lose \$1000 more than your average joe can. ... $\endgroup$ – Jay Sep 8 '15 at 21:18
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    $\begingroup$ ... But then scammers figure this out, and bring nuisance suits against big companies, relying on the fact that the company will just pay them off rather than spend the effort fighting. The big company than builds the cost of these nuisance suits into its prices, and the honest people all have to pay more because of a few dishonest people. $\endgroup$ – Jay Sep 8 '15 at 21:20
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G. K. Chesterton once wrote, "When you break the big laws, you do not get liberty; you do not even get anarchy. You get the small laws."

What he meant was, it would be great if we could have a society where people lived by broad general principles, like "love your neighbor" and "be fair in your business dealings" and "never do anyone harm unjustly". But in real life, we always see that sooner or later someone breaks these laws, and when challenged, he pleads that the law was vague. What does it mean to be "fair"? He didn't think it was unfair to not bring up the fact that that "new" car he sold really has an engine with 100,000 miles on it, and the other person didn't ask. What's does it mean to be "unjust"? Oh, you think it means I can only punch someone if it's in self-defense? But that guy over there said I'm allowed to punch someone if he insults my wife. I thought it meant I can punch someone if I don't like his face. Etc. We could argue endlessly about what is "just" and "fair" and so on. And so for rules to be enforceable in practice, they have to be specific.

That is, people think that by taking advantage of loopholes they are gaining freedom. Others often warn that if people get away with such loopholes, they are not creating freedom, but anarchy. But Chesterton replies that you get neither. What you inevitably get is a mass of very specific rules to plug every loophole that someone can think of.

In theory, you could have a legal system where we went entirely by the spirit of the law rather than the letter. The law could just say, "don't cheat", "don't steal", etc. But then someone would have to decide in every specific case whether the spirit of the law was being met or not. Presumably a judge or a jury or some other group invented for this purpose.

But that instantly creates two problems. The more extreme is, what if the judge (or whomever) is biased or corrupt? What if, say, the judge is a racist and so in any dispute between a white person and a black person he always assumes that the black person is at fault? Etc, I'm sure you can think of many other examples. You could have an appeals process, of course, but ultimately that just means that what matters is the biases of the higher court rather than the lower court.

But even barring that, assuming all judges are fair and honest, you have the problem that no one could ever be quite sure what the law is. Like, the law says that a manufacturer cannot build a car that is "unsafe". But what is "unsafe"? No manufacturer could guarantee that no one will ever be injured in one of their cars no matter what the nature of an accident or failure. So what is "safe enough"? Do we have to have airbags, or are seat belts good enough? Is it good enough if the car can sustain a 20 mph hour collision? Or does it have to be 25 mph, or 30, or 27, or 26 1/2, or what?

If courts respected precedent, than over time case law would build up and people could say, oh, here was this case 5 years ago similar to mine and here's how the court ruled, etc. But ultimately that would mean that you'd have a whole bunch of detailed rules, and you're back where you started from.

Of course all of this happens to a certain extent with our present legal system here in the U.S., and I presume in other countries. Even with specific laws, there are always cases that no one thought of when the law was written, extenuating circumstances, etc.

To an extent, the system DOES apply a spirit-of-the-law test. Prosecutors regularly exercise what is called "prosecutorial discretion", which means that sometimes, even though someone is clearly guilty of breaking the law, they don't bring charges against him or bring lesser charges because his behavior was understandable given the circumstances, or because he has already suffered enough, etc.

In short, I think the answer is, Barring some radical change in human nature, there's no way a system could be either purely spirit of the law or purely letter of the law. It's always going to be some mix, with legislators trying to make laws as specific as they can and judges and prosecutors trying to apply them fairly.

Which reminds me of an article I read years ago by a judge. At the time, Congress had passed a law with "mandatory sentencing guidelines". People had complained that judges had too much discretion, that one judge might impose 20 years in jail for some crime and the same day another judge in another court would impose probation for the same crime. So to make justice more fair and even-handed, Congress passed a law detailing specific penalties for specific crimes. I don't have any of the details off the top of my head, but just to make up an example, if you stole something worth \$500 you might get 1 year in jail while if you stole \$1000 you'd get 3 years, and if you used a gun that would automatically add 2 years, etc. Judges and lawyers protested that while this sounded fair, it took away the judge's discretion to consider the details of the circumstances. Someone who started a fight after months of harassment and abuse and provocation would get the same penalty as someone who started a fight for kicks, etc. So, did the new law make justice more even-handed, regardless of one's view on the fairness? No, this judge said. What really happened was that now the judge and the prosecutor would sit down and discuss what penalty this defendant really deserved. Then they'd take out the charts from this law and figure out exactly what crime or crimes to charge him with to get the "right" penalty. If, say, including the illegal firearms charge would give a penalty that they thought too harsh, then they just wouldn't bring that up in court. If the obvious crime had a penalty that was too small, then they'd think of other crimes they could charge him with. Toss in "criminal trespass" or "menacing" or some other vaguely-defined crime. Etc.

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    $\begingroup$ A major problem with the use of precedent is that it gives disproportionate power to dishonest judges, since good judges will generally presume that the other (dishonest) judges were acting in good faith, and follow the precedents set thereby, while the bad judges will capriciously ignore the precedent set by good judges. $\endgroup$ – supercat Sep 8 '15 at 23:01
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    $\begingroup$ Also, when writing answers on Stack Overflow, you should precede dollar signs with backslashes unless you want to embed TeX expressions. Something like $foo $bar will treat foo as a TeX expression (yielding $foo $bar); if you want do show monetary amounts, use \$foo \$bar. $\endgroup$ – supercat Sep 8 '15 at 23:03
  • $\begingroup$ @supercat RE dollar signs: Yes, I keep forgetting that. thanks. $\endgroup$ – Jay Sep 9 '15 at 5:30
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    $\begingroup$ In simplest terms, the problem breaks down to where on this line do you want your legal system to be? On one end, the judges have absolute power to decide the difficult cases, risking tyranny by those judges, and on the other we hamstring them by creating written rules that get more and more complex and detailed every time someone finds a new problem not covered by the old rules. It's human nature to game the system to maximize your own benefit. Unless you change human nature and/or find incorruptible judges, legal systems won't work perfectly. $\endgroup$ – Mark Ripley Jul 24 '16 at 8:40
  • $\begingroup$ One of the most interesting takes on "fair" legal systems is the concept of make a ruling without knowing anything about the person who will benefit. It's related to the "Justice is blind" concept. If person A did something to person B, the rules should be the same for person A, no matter if they are a street person or a Senator. If the judge, jury or whoever make decisions in a case are able to be unaware of facts unrelated to the legal issue, they are less likely to make decisions outsiders might see as "unfair", such as based on skin color, gender, or social class of the accused. $\endgroup$ – Mark Ripley Jul 24 '16 at 8:46
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The opposite: the totally rules-oriented system.

So, all modern systems are partially both sides: partially rules-oriented, partially interpretative/spirit-oriented. The best insight you're going to get is probably to take the most rules-oriented system you know of and completely reverse it. Let's call them the rules-oriented system (ROS) and the spirit-oriented system (SOS).

In the totally rules-oriented system, justice is meted out by mathematics: with 60% probability you have performed the crime, which is worth 30 years in jail, you will spend f(0.60, 30 years) = 2.6 years in jail (or whatever). If new information becomes available, you may either get added time or credits against future criminal activity. (The ROS would be an interesting premise for a dystopian world; people who "game the system" have to be explicitly legislated against, people who are wrongfully imprisoned are allowed some latitude to steal/murder.)

In the middle, you have our system. What is the difference between our system and the ROS, and how can we push that difference even further into the SOS?

Community judgment.

I think one of the biggest things about the ROS is that the rules-oriented approach has 0% human personality entering into the justice system. Its opposite would be to have 100% human personality entering into the system. The community as a whole, or maybe some subset, would be presented with what you seemed to have done, your story for why you did it, a list of who was wronged and how, and their consensus would have to judge you.

Educated subsets, relation to power

An open question which individual worlds will have to ask is: do you concentrate judgment in the hands of an educated few, or do you allow everybody to judge?

This changes the role of lawyers. In modern law, of course, the lawyer's job is to know the entire history of the application of the law, as well as what legal principles should be brought to bear in this particular case. The role of lawyers in the ROS is simply to make sure that all of your appropriate discounts have been applied. In the SOS with some sort of community-judgment we have to think: if there's an educated subset then the lawyer is still somewhat like our lawyers: but if there's not, then a lawyer has a much richer goal as rhetoricians, trying to build up a crowd-moving speech that would sway people to thinking that you had maintained the spirit of the community.

The numbers game also applies to the people doing the judgment. There is a trade-off here, a very important trade-off. The more independent-of-society and small-in-number the judgment-facility is, the more efficient society as a whole is (division of labor), but also the more risk that they will absorb authority into themselves and become a political power. An educated minority passing judgments for the sake of the community has definite advantages over the community doing the same, as the society gets larger than about 100 people: but if it has power then it buts heads with the powers-that-be in the society. The Popes were a small powerful moral authority throughout the late Antiquity and Medieval periods of European history; they often had power-clashes with the regional kings and other elite.

Speaking of power, there is another sliding-scale between the dictatorial (leaders are exclusive judges) and democratic (everybody is a judge) extremes in the relationship between leadership and judiciary. We can't say whether the SOS would be on one side or the other of this scale: it depends on what world you want to build. (They are not completely independent questions, of course: if political power = judicial power then the number of judges is just the number of political officials, so if it's a democracy then everybody is both a political and judicial authority, or if it's a dictatorship then the dictator is both a leader and a judge.)

So even on the far-SOS side, we have these fundamental questions of "who are the judges, how many of them are there, are they educated or just chosen at random from the population at large, and do they also lead others or not?" that must be addressed -- and they might be addressed in any number of other ways.

Not what you did, but who you are.

The obsessive focus on what you've done, with no regard to who you are in the larger society, is maybe the second biggest thing which sticks out to me about the ROS. Pushing it to the opposite, we can imagine that everything is interpreted without probabilities as a question of "who are you, what value do you have to society?" that determines whether you go to jail or remain free, whether you are punished or rewarded.

A verdict could then be interestingly "meta-" for example: a judgment that "you are dishonest!" would have severe ripples through the community as everybody treats you like a known liar. Historically, the process of shunning those who were perceived to be guilty of crimes (called ostracism) was a powerful punishment meted out by a community who refused to do business with someone. It effectively cuts someone out of productive city-life.

No pretense of consistency.

The ROS intends to be 100% consistent, the same rules applied to the same people at all times. Our legal systems try to be sort-of-consistent; the legal judgments themselves are supposed to be "interpreted" in each others' light. I think a true SOS system will completely abandon the value of consistency between how they judge X and how they judge Y: these are different people in different circumstances and even if they did the exact same thing, they may not have both violated the spirit of our community, or if they both have, they may have violated it in different ways.

So the SOS is probably "every case is its own isolated judgment, they do not need to establish any sort of precedent with each other, except perhaps for a global feeling about what our shared principles ultimately mean.

Possible world idea: the free press.

Suppose there is no judiciary per se but there is a wild notion of freedom-of-press: the authorities have collectively decided that there is nothing wrong with the written word, whether libelous or truthful. Justice depends on these magazines, and you might pay reporters (who are now effectively the "lawyers") to write good articles about you or slanderous ones about your enemies. The whole of the law is maintained by the authorities in perhaps 100 or so precepts. Everyone learns these precepts at school and is educated that they have an important hand in establishing justice. (I don't think 100 is unreasonable; the UN has attempted to declare human rights, a similarly nebulous concept, in 30 precepts.)

Individual clerks and shops may refuse to deal with you depending on what the news says you've done. Prison and community service are often-voluntary forms of penance that you can inflict on yourself to absolve yourself in the public's eyes. However, you cannot just keep "getting away with" crimes because someone will forcibly kill/restrain you and be lauded in the newspapers as a folk hero. If it's a democratic system, those people might very well be elected officials looking to gain a few extra points.

As such a system grows, its main growing pain will be that not every member of the community can have an explicit "good/bad" status known to every other member of the community! To rectify this, we can imagine that technology saves us, and expect that the news periodicals essentially turn into "eBay reviews" of every person in the society. From the moment that some woman walks into your store, there is some pop-up on your screen saying "she has 4.5 stars among 80 reviews, but only 4.0 stars among the 70 who are not immediate family and friends." Part of this would probably be voluntary microchipping, with people who refuse the chip being regarded widely as dangerously untrustworthy, and politicians routinely campaigning that they'll protect you from unchipped hooligans.

An all-too brief summary of the Socratic dialogues

Very similar to the above idea was democratic Athens. Athens was a tychocracy, a rule by the lucky, as well as a direct democracy where every adult man had a say. There were 10 tribes recognized in Athens and each one had 35 days a year during which they ruled via 50 people chosen by lot, who would randomly take turns "presiding" over that council. Furthermore, there were 9 chief judges (the Archons) also appointed by lot, and the "Ecclesia" or "Assembly" was a regular gathering open to all Athenian men to hear, speak about, and vote on decrees which would affect Athens as a whole. There's a lot of material to cover if you want to know more.

Athens had a very important role for "philosophers" as the lawyers/rhetoricians of the Assembly; this was how the Sophists are displayed in the Platonic dialogues. These "lawyers" argued in front of the Ecclesia with whatever wordplay they could muster to get their clients out of trouble.One Sophist, Gorgias, is even so bold as to have written The Encomium of Helen, a defense of Helen of Troy, the "face that launched a thousand ships" (the villainous woman in Homeric poetry whose pivotal immoral act of infidelity led to a massive war, the Trojan War, containing the deaths of countless heroes and kings). The implication, of course, is "if I can get Helen off for starting a war, I can get you off too, whatever your crimes are." In the dialogues the Sophists are drunken fun-seekers who basically think: there is no greater truth, isn't it great how we can play these word games, oh I'm so clever now that I can argue anyone into nonsense, because really there's all sorts of ambiguity in language, ahahaha. One pivotal tactic, for example, is that they often define terms by example, exploiting the ambiguity created by the word "good" in "a good knife, a good life, a good wife." Socrates hates this and wants something closer to mathematics: if you want to define a term, I'm going to ask you for something which everything which everything inside that set has, but only those things have: "if" and "only if".

So in Athens there are rules, yes, enforced by the tychocracy and often made by the democracy, in a complicated mess which was easily swayed by inspirational speeches and rhetoric. That rhetoric often dipped down into dirty word-games and surely tarnishing reputations also occurred.

Another thing to learn is that there doesn't seem to be a difference here between criminal and civil judgments, unless I'm horribly mistaken. It seems like the only time the Ecclesia would legislate something is if one man had a beef with another man: they would resolve the dispute. So it'd be interesting to instead write out a system which was sufficiently modern to need things like speeding tickets where there must be some group whose job is to say, "no, you are doing the wrong thing for everyone," even though you're not offending anyone in particular.

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    $\begingroup$ One thing I explored which might be worth adding: a ROS naturally leads to a 2 step process of gathering information followed by declaring a verdict (and a penalty). A SOS may do both simultaneously, using the effects of its [potentially very small] actions upon the defendant (and/or the prosecutor) to help expose the right results as the proceedings move forward. $\endgroup$ – Cort Ammon - Reinstate Monica Sep 8 '15 at 20:33
  • $\begingroup$ I would suggest that common practice places too much value on supposed "consistency" as an end unto itself, rather than recognizing inconsistency as a symptom of other problems. If a legislature writes a vague rule and one judge interprets it one way, and in the absence of that ruling another judge would decide find the opposite arguments more compelling in a different way, the latter judge shouldn't honor the more compelling argument in his case. If the law is so vague that such inconsistencies are a frequent problem, the proper solution is not to arbitrarily declare that the first judge... $\endgroup$ – supercat Sep 9 '15 at 13:59
  • $\begingroup$ ...to hear the case should invent law that other judges should then follow, but rather to have the legislature say what the law should mean. $\endgroup$ – supercat Sep 9 '15 at 14:00
  • $\begingroup$ BTW, if you have 4 stars from 70 reviews, that's 280 stars total, but 4.5 from 80 is 360... so the 10 family members contributed 80 stars? is this a 10 star system? $\endgroup$ – Mathmagician Aug 31 '17 at 6:19
  • $\begingroup$ @Mathmagician crap, I don't even think that's an issue of counting but of proportion; if the odds ratio is 7:1 then you can only get a maximum of 4+1/7. Hm. $\endgroup$ – CR Drost Aug 31 '17 at 12:42
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A point which is often neglected is that in many cases the legitimacy of an action should depend upon the intent behind it. Without the ability to read minds (and thus determine the true intention behind an action), it's necessary to be able to have standards for how well-intentioned people should behave, and presume that people who behave according to such standards are acting with good intentions, but such a presumption should be just that--a presumption, not a determination. In many cases, maintaining the "spirit" of the law, rather than just the "letter", would require little more than recognizing that actions undertaken in bad faith are automatically illegitimate on that basis alone, no matter how well they otherwise fit the standards for how well-intentioned people should behave.

An example of this principle may be found in one of the rules in the American Contract Bridge League, which specifies that deliberate violation of the rules of the game is cheating, even if one would be willing to accept normal prescribed penalty for committing the same infraction accidentally. For example, a klutz who sometimes accidentally drops cards so partner can see them will generally incur minor procedural penalties, but a player who deliberately exposes a card to partner may be disqualified and possibly even ejected from the League. While there may be some room for judgment on whether the Tournament Director should impose the normal penalty or a harsher one, there is no room for judgment regarding whether a player is allowed to show an unplayed card to partner in exchange for accepting a procedural penalty. Such behavior is absolutely, clearly, expressly, and unequivocally forbidden.

Recognizing that a presumption of good faith should, like any presumption, be considered rebuttable would go a long way toward balancing the "letter" of the law with the "spirit". An honorable person shouldn't ask how far he can go beyond the letter of a law whose legitimacy and meaning are not in dispute; that a person would even ask such a question would suggest that minor infractions which might have been forgivable under a presumption of good faith should be presumed deliberate.

It's possible that the only thing that would change as a result of recognizing presumptions as rebuttable would be that discussions of how to get around the law without consequence would be forced underground. On the other hand, having such discussions go underground creates many possibilities for intrigue, especially if respectable people want to avoid any association with such discussions.

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  • $\begingroup$ I like the discussion of this answer. It would be nice to see an example of what how you would implement the general idea in a legal system though. I'd love to see an extension that elaborates a bit more on what this would look like when applied to a common law approach. $\endgroup$ – dsollen Sep 8 '15 at 23:00
  • $\begingroup$ @dsollen: As a simple example, consider the Fifth Amendment prohibition against depriving people of life, liberty, or property without due process, and the Eighth Amendment prohibition against unreasonable searches and seizures. A huge amount of case law surrounds the question of what efforts a cop must make to be granted non-forceful entry before breaking down someone's door, but much of it it ignores the simple question of "Were the cop's actions motivated by a desire to break the person's door, or to gain necessary access to the property?" If a defendant were allowed to ask the jury to... $\endgroup$ – supercat Sep 8 '15 at 23:09
  • $\begingroup$ ...determine whether the cop was making a reasonable good faith effort to avoid damage to the defendant's property, and treat the search as illegitimate if, based on their assessments of witness credibility, they conclude that the cop was not acting in such good faith, that would do a lot more to protect people's rights than would mountains of case law about exactly what motions a cop is required to go through before he gets to smash in a person's door. $\endgroup$ – supercat Sep 8 '15 at 23:12
  • $\begingroup$ An example: A cop who hears desparate cries for help rushes and breaks down the door without warning or search warrant (For the sake of the argument lets say its illegal). What she sees now is a layman theater where the actress did play her part a bit too good. The reason for breaking the door was legitimate, but the MO was illegitimate. The verdict is e.g. that the cop do not face legal consequences, but must partly pay the door. Now a real (!) crook is harassed by another jealous cop (same woman) and gets a search warrant with plausible, but invented claims. $\endgroup$ – Thorsten S. Sep 9 '15 at 22:53
  • $\begingroup$ The cop uses his power and a) finds some weed b) finds a murdered person. In both cases it is finally found out by e.g. mails or complaints that the cop harassed the crook for irrational reasons and got the search warrant legally, but under false pretense. In case a) the charges against the crook are dropped because it is a low infraction and the cop is punished. While in case b) a rule-based system may drop the charges, a system you proposed may convict the crook because the discovered felony is too severe, but the cop does not get the merit for solving a case (money or promotion). Correct ? $\endgroup$ – Thorsten S. Sep 9 '15 at 23:00
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After reading a comment, I decided that there was an alternative to the system I gave in my first answer:

You might want to search for Chthonic Law. The short answer is: once people write down authoritative explanations of what the Spirit of the Law really is, those are by definition written laws and people start lawyering them, too. – Lorehead

Now my argument would be that, if you could write a law down fully, such that the written law was complete, the law would have no spirit. The only exception seemed to be words which are designed to have spirit, like poetry.

So why not?

A system where all laws are written in poetry instead of legaleese, designed to capture the best intents of all humanity. Anyone who tried to read the law in any literal way would be laughed out of court.

It opens up great opportunities for legislation that has never been possible, like properly compensating a jilted lover. It also can be nurturing, to raise the poor uneducated minor out of his ghetto life before the gangs take hold of him.

One could even include concepts into such a legal system which defy wording entirely:

"At the temple there is a poem called 'Loss' carved into the stone. It has three words, but the poet has scratched them out. You cannot read loss, only feel it." ― Arthur Golden, Memoirs of a Geisha

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How's this for an idea. There is a group of people (IMHO they often come off as a bit looney) who really push the idea of Jury Nullification (aka Fully-Informed Jury) who think that a jury should be able to ignore the law and the judges comments and possibly toss out a case they deem to be unjust. Judges (and probably most rational people?) read the law and prefer to put some parameters on what choices the jury can make. For instance, the jury has to base its conclusion on legally obtained evidence, etc.

So, what if we push it to an extreme. You and another person have a legal squabble. You present if front of a jury (it's funnier if you imagine them on drugs). They don't bother looking at the law or precedent at all. They just decide according to who seems more reasonable or convincing. That certainly would get you away from the letter of the law and loopholes really wouldn't be an issue at all...

(Come to think of it, this would get me to actually WANT to get called for jury duty, so there is that benefit.)

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  • $\begingroup$ The problem is that laws are explicit because they want people to obey the law, not because they want to punish people for not obeying them (the punishment is to deter people from breaking the law in the first place), and so cases should be judged with that in mind. Hence, people should know in advance of committing an action, whether or not they will be breaking a law and if so, not do it. If they now have to guess what jury might decide every time they wish to do something, then it would be entirely unfair. $\endgroup$ – colmde Sep 22 '15 at 23:36
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Everybody seems to be discussing courts and lawyers.

As I see it, the question is mostly about culture.

Consider a man who has exploited a loophole in a contract or law to gain something.

In most cultures on Earth, he will go around bragging about this, and people will applaud how clever he has been. And this means he will try to do it again.

In some cultures, both on Earth and in fiction, people will think he has been a bad person who should be ashamed of himself. And this means he will NOT try to do it again.

Most cultures are somewhere between these extremes, of course.

The form of the laws and courts are irrelevant. They only reflect the norms of their culture.

[Editted to add:]

You were interested in how courts would work in such a culture.

I think the settlement courts would be more important. In this court, both parts have agreed to meet to settle a disagreement. The focus of the court would be find an agreement both parts can accept. But if negotiations fail, the judge(s) would have the power to decree a settlement. There would be no question of fines and punishment, just recompense.

As for criminal law, community service would be more common. Also recompense to the victims.

Or so I guess.

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In contrast to the answers of Cort Ammon and Jay I think it is entirely possible to build a non-specific-rule "spirit of justice" system. The problem is that it hits so many ingrained subconscious assumptions that such a system is hard to imagine.

  • First and foremost thing: There are no rules, only guidelines and the guidelines must have a priority in case guidelines conflict. These guidelines are culture-specific. You can have ultra-draconian guidelines like in medieval Japan where even minor offenses are punished by death or you can have very lenient guidelines avoiding harsh penalties. One view on the guidelines and you pretty much know what you have to expect from society. Allowing to know the guidelines is already a guideline, cultures are not obliged to inform outsiders about their guidelines (again medieval Japan, entering or leaving Japan was punished by death). Use precedents to judge a case is already a guideline, a culture can claim rightfully that each case is individual, but it can also claim that precedents are important. Priority is important: If there are two conflicting guidelines the culture must choose from its values what is more important. One guideline is to allow any kind of speech to prevent censorship, another guideline is to disallow hurting or harming people. The USA decided that free speech is more important, Germany decided otherwise.None of them are contradictory, both approaches are consistent and the systems must live with the implications.What really hurts law-orientated systems is that the existence of all-encompassing "natural" laws will be very likely denied, while many cultures will probably have a common subset they will almost always have a specific exception where a "human right" will be strongly denied (else we would not have so much problems with human-right violations).

  • The deciding instance must have the support of the culture for which the guidelines are specified and it must given the power to uphold verdicts. Forcing a culture to adopt guidelines of another culture is asking for trouble, it will inevitably lead to parallel and silent justice. That means that the jury/judge won't get evidence, witnesses or even cases, the people will avoid the court like a pest.

  • The guidelines must be applied to a case and this means a Judge or Jury. This automatically gives the ruling instance tremendous power, so the judge/jury can (and will) issue both outragous and wise judgements. It is culture-dependent if and how revisions and controls will be implemented.

  • There is no barred evidence and there is no need for lawyers in the common sense. The guideline law concentrates on evidence-gatering, not using rules to the advantage of one side, There is no "no punishment without law". Rule-based systems are trying to uphold standards of equality, fairness and non-manipulation and do that by applying rules which can be again used as loophole. So both criminals and the society have their appointed agents which will try to game the system for their preferred outcome. So given the problem that you cannot suppress evidence, you need to come up with a stringent explanation for all of the possible unearthed evidence.

  • Very interestingly it means that even a fully-accepted guideline court system will be likely seldom used except for felonies. People like to be on the secure side and if you really go into depth, it often sheds a bad light on both participants. Yes, A did screw you, but he was smarter than you after you tried to take advantage of him. Rule-based systems may decide against you, but most of the time you can trust that not breaking a law will give you immunity. It also gives you privacy (the judge will not know what you have done before) and more case-specific ruling (your social standing, your problems with society). So a guideline system will likely develop a mediator system to settle problems out of court and both participants will know most of the time how their position is and try to get a gentleman's agreement.

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  • $\begingroup$ Priority is key. I think high-priority principles often get lost, though, in many cases where they offer the murkiest factual basis for judgment. A high-priority principle, e.g., is that if someone is required to act in good faith, actions performed in bad faith are automatically illegitimate, no matter how much they otherwise resemble legitimate actions. In most cases it's much easier to examine a person's overt actions to see if they seem legitimate, than to ascertain a person's intentions, but that doesn't mean that rules about what actions seem legitimate should have priority... $\endgroup$ – supercat Sep 9 '15 at 14:04
  • $\begingroup$ ...over the principle that actions must be performed in good faith. If someone can be shown to have engaged in discussions about how they can maintain an appearance of acting in good faith without having to actually do so, such discussions should be taken as strong evidence of bad faith, even if the person's actions otherwise appear "by the book". $\endgroup$ – supercat Sep 9 '15 at 14:06
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For this kind of system to exist ( and it is the goal of many legal systems so it's debatable how achievable it might be ) then you probably need to operate at different levels - most legal systems operate on a basis of principle/intent => legislation => case law. In the situation you describe, it seems as though possibly the case law part of the scenario might be given far less weight- rather than comparing the current case with previous similar ones, it could be compared purely with the legislation and it's stated intent. That still ties in to the letter-of-the-law but gets closer to the principle and intent, although of course it is also much less efficient because the same conclusions have to be derived in similar situations rather than being able to compare directly with how they were concluded before.

Consider the orientation of the law

An interesting alternative might be to change the orientation of the law, so that the underlying principle is changed from "it is the will of society that you should not do X" to something else. An example of this that I find particularly interesting is "a crime is an action performed by a person of agency which has a victim."

This creates a very different shape of legal system, where the nature of the victimhood and establishing a victim becomes the core of legal process. A 'simple' crime such as assault is fairly clear-cut in this respect, but things get interesting when organisations are victims, when a victim is hypothetical ( dangerous driving my not have a physical victim but the potential for creating them is very high ) or when an action has a slim effect on many victims ( polluting the environment could be an example of this ) and so on. It would result in a complex and comprehensive legal system that could have the same effects as our own, but which comes from a very different place and responds to crimes and their victims in a different way.

We could look at some outcomes of this:

  • There are no crimes against oneself alone. If you have agency ( by which I mean effectively you are rational and capable of decision-making in your own right ) then you cannot be both victim and perpetrator. That gets rid of many drug offences straight away.
  • If it is legal to consume drugs then supplying them cannot be criminal in cases where there is no victim.
  • However, if a person's actions whilst under the influence of drugs or the consequences of a person's addiction create a victim ( a neglected child, harm to an unborn foetus, theft to finance the addiction ) then those actions have criminal implications.
  • In cases where there is potential for victim, but no definite victim, like ( to continue on this theme ) driving under the influence, the approach may be based on a unit of risk, a little like a Micromort. So if driving under the influence resulted in damaging property 50% of the time, causing injury in 20% of cases and causing fatality in 5% of cases, then you have effectively 0.75 victims at three different magnitudes of severity. This combination of scale of potential victim and magnitude of severity would be used to decide the seriousness of the crime and the punishment due. Given that the course of law in this case relates to establishing a victim, both prosecution and defence might use statisticians to argue the case that this was a more or less serious event and therefore the defendant should or should not be punished.

In this case the legal system becomes less of a question of rules and more a matter of the effects of individual choices on the people around us, which is an interesting exercise and would probably be reflected in other cultural elements.

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  • $\begingroup$ I like your idea for restructuring the law, but I think it would be interesting to see an example of how it would result in legal system playing out differently. I could see a case where it may make certain situations harder to prosecute because victim is a little harder to extrapulate, but can you give an example of when it would be 'better' or just 'different, but still as good' with the end result of prosecuting a more traditional crime? I like the idea, just want to see more of how it would modify our system. $\endgroup$ – dsollen Sep 9 '15 at 15:59

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