A PDF version of A Penrose Stairway is available here.
A Penrose Stairway: Why the Free Market
and Limited Government Are Incompatible,
by Ronald N. Neff
Table of Contents for A Penrose Stairway
December 30, 2016
Financing a Limited Government
THE QUESTION OF HOW TO IMPLEMENT the principle of voluntary government financing ... is a very complex one and belongs to the field of the philosophy of law. The task of political philosophy is only to establish the nature of the principle and to demonstrate that it is practicable. (Ayn Rand, Government Financing in a Free Society, The Objectivist Newsletter, February 1964; reprinted in The Virtue of Selfishness [New York: New American Library, 1964].)
It is the thesis of this book, and especially of this chapter, that a limited government and a free market are fundamentally incompatible. A limited government cannot exist without encroaching on the market; and a completely free market exists only if government even a night-watchman limited government does not. I therefore suggest that the question of how to implement the financing of a night-watchman limited government is not a subject for the philosophy of law, but rather of metaphysics itself.
For the principle at issue is nothing less than the Law of Contradiction. One cannot logically advocate both a night-watchman limited government, i.e., a government that eschews the use of force except in the defense of the rights and liberties of its citizens, and a market into which government does not intrude, except by holding contradictory principles.
Nearly all libertarians agree that taxation is not one of the means for financing that is open to the night-watchman limited government. The collection of taxes in all their forms requires, in practice, that at least some people will be faced by a threat of force from the state. That is, a threat to use force will be made against people who have committed no crime, who have threatened to commit no crime, and who have lived peacefully and in harmony with their neighbors, engaging only in activities that are voluntary, and expecting the same of others.
In this regard, Jacob Hornbergers discussion of government financing is correct. He takes up the claim of (some) free-market anarchists that a state cannot exist without taxation, and unequivocally rejects it: he recognizes that taxation is a violation of the personal and property rights of its citizens, and he will have no truck with it. And he, like Ayn Rand before him, offers some ideas on how a government can be financed.
To be sure, a limited government that is willing to defend a mixed economy presents no intellectual difficulties. The governments envisioned by the Founding Fathers, at least as they appeared in the state constitutions that predated the Constitution of 1787, all permitted taxation, though of different sorts and at different levels of government. And every government excepting only a few scattered local governments has resorted to taxation as the primary means of financing its activities.
I do not deny that voluntary forms of financing are possible. I deny that they can be put into effect in the context of a free market, by which I mean that even forms incontrovertibly voluntary will encroach on the market in some manner.
I shall begin with an idea that Rand offers, an idea that she puts forward in the essay quoted at the beginning of this chapter, and which she offers only as an illustration of how she imagines a free society could finance its government. I confess that before I became a free-market anarchist, I found it an intriguing suggestion:Suppose that the government were to protect ... only those contracts which had been insured by the payment, to the government, of a premium in the amount of a legally fixed percentage of the sums involved in the contractual transaction. Such insurance would not be compulsory; there would be no legal penalty imposed on those who did not choose to take it they would be free to make verbal agreements or to sign uninsured contracts, if they so wished. The only consequence would be that such agreements or contracts would not be legally enforceable; if they were broken, the injured party would not be able to seek redress in a court of law.
The first thing to notice about this idea is that it proposes that the government be involved in the insurance business and as a monopolist. No other insurance company would be permitted to offer similar insurance (for then, the purpose of the plan to finance government would be negated). But let us allow that objection to pass. The problems are much deeper.
In her essay The Nature of Government (Objectivist Newsletter, December 1963; reprinted in The Virtue of Selfishness and in Capitalism: The Unknown Ideal [New York: New American Library]), Rand identifies the three traditional proper functions of government, among them, the law courts, to settle disputes among men according to objective laws. In that same essay, she asserts that a unilateral breach of contract involves an indirect use of physical force: it consists, in essence, of one man receiving the material values, goods or services of another, then refusing to pay for them and thus keeping them by force (by mere physical possession), not by right.
But if the government will not protect a given contract (because one of the parties has not purchased the protection insurance that the government, and only the government, offers), does it not follow that the other party may, with impunity, or at least without fear, breach the contract? Under the system described by Rand, the government will hold a monopoly on the use of force, so no one else will be permitted to enforce the contract.
The injured party may turn to an arbitration service, but it will be prohibited from enforcing the contract. It may use other means, perhaps, to bring the injuring party to uphold his side of the contract, but in the end everything will depend precisely on that set of persuasions which Hornberger asserts more than once are insufficient to carry out justice, because people sometimes just dont work things out.
Moreover, let us note that in refusing to protect an uninsured contract, the government is implicitly permitting, indeed, we may say depending on, a contractor to use force and violate the property rights of the other party to the contract. I say depending on, for, let us remember, the purpose of this insurance is twofold: it is intended not only to be an instrument in the defense of property rights, but also to be a means for financing the government. It is in the governments interest that it be clear to all citizens that this particular insurance product is one they cannot do without. A government financed by this method must permit the rights of an uninsured party to be violated pour encourager les autres.
I do not say that Rand had intended her proposal to function in this spirit. In fact, I think it obvious that she did not. My point is that, since the attempt to establish a government that does not violate rights must stumble over its own feet, in the end it is simply impossible. Like the Penrose stairway, it can be drawn; it cannot be built; when we draw it, the contradictions lie hidden; when we try to build it, they surge up and out and in all directions. The Law of Contradiction will not be mocked, and it will not suffer anyone to attempt to by-pass it.
Let us notice also another flaw in the proposal. Rand would have the premium for the policy set at a legally fixed percentage of the sums involved. But what percentage will that be?
It will not do to object, It is not important what the percentage will be. The point is that the premiums will be set at some level, and it is not the purpose of political philosophy (or even legal philosophy) to determine it. That will be a matter for the politics and context of the day, and need not concern us here.
Ah, but it does concern us here, for the question just is whether it is possible to fix the percentage without contradicting the goal of protecting a market left free from government intrusion.
In the free market, premiums are set by, inter alia, the competition among insurance companies for the business of those persons or businesses seeking the insurance. Note that I have said set, not fixed. The difference is not insignificant. Insurance companies in the market are free to vary their prices as market conditions change. The variations may occur within a given policy, if the terms of the policy permit, and they will certainly vary from policy to policy, even among policies that are in essence indistinguishable. Just as a gallon of milk may cost more today than tomorrow, so the premiums on a given policy offered to one customer today may even if its other terms are unchanged increase or decrease tomorrow, if the companies wish to change them. (That they may make these alterations does not, of course, imply that they will. In the market, the prices of some products, for example milk, are more volatile than the prices of others, for example, detergent purchased in a coin-operated laundry.) But government insurance will not enjoy this kind of price-changing flexibility.
Even if the legislative charter establishing the operation of the insurance department permits the department officials to make changes in the premiums or other terms, the prices will not be market prices, precisely because there will be no competition for the trade of the customers. It is the bidding for resources (capital and labor) that establishes the objectivity of prices in the market. Where there is no competition, there is no possibility of setting prices. There are only fees. And whereas prices can be said to be objective, in that they are set by impartial forces and economic natural law, fees are arbitrary. They therefore leave contractual rights exactly where Rand argues that rights should not be, to wit, left at the mercy of the unilateral decision, the arbitrary choice, the irrationality, the whim of another man.
Rands mistake, then, was to ignore the warnings of Ludwig von Mises in Bureaucracy (New Haven: Yale University Press, 1944), an author whose writings the book service once associated with her used to sell: In public administration there is no market price for achievements. This makes it indispensable to operate public offices according to principles entirely different from those applied under the profit motive. And what are those principles? Mind you, I am not saying that it is not possible to determine whether the amount of money taken in is sufficient to finance the government. Surely that would be a simple matter of adding and subtracting.
No, the question is, by what principles is the office setting and collecting the premiums operating the insurance program? Is its operation efficient, i.e., are its costs appropriate to the services it performs? There is no one competing with the office to hire away its employees if they are paid too little. There will be no economic consequences of ruin if they are paid too much. There will be no way of making this calculation. Indeed, the business of making the calculation is not even to be considered. Because we are talking about the functions of a government, which is assumed not to be a market entity, and so cannot function according to whether it makes a profit, the principles of the office operating the insurance services must be those of a bureaucracy. And, to quote Mises, Bureaucratic management is management bound to comply with detailed rules and regulations fixed by the authority of a superior body. The task of the bureaucrat is to perform what these rules and regulations order him to do. His discretion to act according to his own best conviction is seriously restricted by them.
It may seem that in making this point, I am undermining my contention that limited government and the free market are incompatible. For if this crucial government agency is not operating according to market principles and cannot operate according to them, in what sense is it intruding into the market? The difficulty is only apparent.
When one market entity puts resources, i.e., capital or labor, to the use of its own purposes, thereby removing them from other possible uses and purposes, it is not intruding into the market. Moving the resources from one market activity into another just is market activity. In making use of resources to operate its insurance scheme, however, the government is removing resources, i.e., capital and labor, from the market. The prices it offers for supplies and other capital crowd out the bids for those same supplies and capital. The wages it offers to its functionaries crowd out bids for their services from other entities in need of laborers. Such will be the result if the government makes above-market offers (drawing away the most highly talented, highly desired workers), or below-market offers (drawing away entry-level workers from the appropriate market activities). And if we say that it will make average offers, then we perforce are drawing average workers away from average market opportunities.
Thus, the night-watchman limited government cannot even hire anyone without stepping into the market, without intruding into it, for it has entered the labor market, in competition with all other business concerns, needing to draw workers away from those concerns and unto itself. Moreover, if those same employees should decide to leave their government jobs and go work for, let us say, free-market law firms, they will enjoy an advantage that other potential hires will not have: they will have a more complete understanding and knowledge of the inner workings of the government. The law firm (or the accounting firm, or the insurance firm) that can hire more of them than its competitors will enjoy decided advantages, advantages that government, in effect, has given them. And as applicants for jobs, former government employees will enjoy advantages against applicants who do not come from government, applicants who could not have obtained comparable knowledge from their experience in competing firms, for there would be no competing firms. The night-watchman limited government, as Hornberger, Rand, and a host of other writers say, is a monopoly.
Finally, let us observe the constitutional difficulty posed by the need for an agency to operate such an insurance plan. First, just as the current U.S. Constitution explicitly identifies what taxes government may collect, so the New Constitution for the New Country must explicitly identify the means by which the government will be financed. If it is by an insurance scheme, the scheme must be explicitly authorized. In authorizing it, our New Constitution, we shall hope, will also specify that no other insurance scheme for any other purpose will be permitted to the government. Will it be left to a congress (Congress shall have power to create an agency, etc.) to specify the form of this agency? Or will the New Constitution itself specify it? To just what level of detail will the New Constitution resort to prevent future generations from misusing the clauses in ways that no one living at the time of ratification can foresee?
These are not minor questions. They are meant to illustrate just how much the proponents of a limited government leave unaddressed. It is as though they have left their limited government in the realm of fantasy, a wishful and superficial series of images, writes Joe Sobran. Unlike fantasy, real imagination explores reality and possibility. You cant separate it from the intellect. It takes imagination to see the world as it is, to understand people as they are, to grasp the remote implications of ideas, to foresee the results of various courses of action, to perceive abstract relations, to find analogies, to view a single truth from many angles, to sort out the essential from the inessential. It is in such undertakings, which free-market limited-government advocates hardly ever attempt, that we have been detecting their fall into contradiction.
We have seen men like those who call for a night-watchman limited government that will defend and not intrude into the free market before. They are like a man who thinks it would be grand to have a precise fraction for the square root of 2 or for π, but who has never troubled with the calculations to learn that they are impossible and why. They are like the men who see a drawing of a Penrose stairway drawn by E.M. Escher and declare it would be a good thing if it existed. It is as though they believe that by describing a thing, even a logically impossible thing, or even by drawing it, they have made its existence possible.
It may be objected that, after all, Rand was explicit: she offered the idea of insuring contracts only by way of illustration, as a possibility. That I have gone to such lengths to show it impossible merely shows that it was a bad example.
But the difficulties I have identified here will plague us again and again in every plan to finance the free-market limited government. Let us look at the lottery, a proposal made by both Rand and Hornberger.
We must ask immediately, Since gambling will not be prohibited by the night-watchman limited government, is it not obvious that this government lottery will be operating in competition against free-market lotteries? To be sure, in this instance, there will be market competition, and the government will have the advantage of a price system created by the bidding for resources in which all gambling operations will be engaged. Its prizes and games will, at the margin, be comparable to those of all free-market lotteries. The prices it pays for the equipment to operate the lottery and the wages it offers to the personnel of the lottery will have a market base. In that respect, at least, there will be elements of objectivity in the lottery system that were absent in the insurance scheme.
But the idea, remember, was not to intrude into the market. And the governments lottery, as a competitor in the gambling business, will be nothing if not an intrusion into the market. Every announcer who reads out the winning numbers will be a person taken from other market activities. Every lottery machine will represent capital and physical resources (and the labor to assemble them) that will not be available to businesses operating in the free market. The paper and ink needed to print the tickets, the machines dispensing them, even the means for printing checks for the winners will all be unavailable to free-market operations. The government, in its attempt to behave like a market entity, will have consumed resources by taking them out of the market.
And every dollar spent by the purchasers of government lottery tickets will be a dollar not spent in a free-market gambling concern.
If the government chooses to purchase television time (as so many government lotteries do) to announce winning numbers, that time will not be available to advertisers and sponsors of networks or programs. Surely at this point it is not necessary to multiply the examples of the intrusions into the free market a lottery will present. A lottery as a means to finance the free-market limited government pretty obviously and at almost every conceivable point intrudes into and distorts the market.
Finally, because of the governments need for it as a means of financing, it cannot be permitted to go out of business. It will enjoy an advantage unknown to all its competitors, and in that respect it will not be a market entity at all, despite all other appearances. Dressed up to pass as a market entity, it will instead be a government agency intruding into the market.
What about donations? They are indubitably voluntary. What possible problems can they pose?
In Power and Market, Murray Rothbard gives an example of what we might call voluntary taxation, and it is interesting enough to be worth quoting in full:A few writers, disturbed by the compulsion necessary to the existence of taxation, have advocated that governments be financed, not by taxation, but by some form of voluntary contribution. Such voluntary contribution systems could take various forms. One was the method relied on by the old city-state of Hamburg and other communities voluntary gifts to the government. President William F. Warren of Boston University, in his essay, Tax Exemption the Road to Tax Abolition, described his experience in one of these communities: For five years it was the good fortune of the present writer to be domiciled in one of these communities. Incredible as it may seem to believers in the necessity of a legal enforcement of taxes by pains and penalties, he was for that period ... his own assessor and his own tax-gatherer. In common with the other citizens, he was invited, without sworn statement or declaration, to make such contribution to the public charges as seemed to himself just and equal. That sum, uncounted by any official, unknown to any but himself, he was asked to drop with his own hand into a strong public chest; on doing which his name was checked off the list of contributors.... Every citizen felt a noble pride in such immunity from prying assessors and rude constables. Every annual call of the authorities on that community was honored to the full.
Hornberger quotes this passage, but draws conclusions from it different from those Rothbard draws.
I cannot help but notice a few peculiarities of the account. I mention them aware, however, that the author (Warren, not Rothbard) may have merely been speaking casually, not actually intending that any inferences of the sort that are occurring to me should be drawn. Nevertheless, I will make note of them here. Let us start with that annual call. Please note that it is annual. And why is that?
Where is the objectivity in collecting donations only annually? If the hope or ideal was to arrive at objective law, to remove the element of the arbitrary and subjective from public life, surely in this decision, we have failure. Again, it will not do to reply, It is only necessary that there be some time for collecting the donations, but that it does not really matter when that time is.
For if the object is to refrain from intruding into the market, it does matter when that time is. At what time can this annual call be answered that does not intrude into the market? People will be taking time from their work or from their leisure to answer it. Shopping will be diminished. Production output will be diminished. These diminishments will be greater or fewer as there are few or many sites for making the donations, so it is reasonable to ask: How many sites are there going to be for making the donations? There is no objective answer to the question. Walmart knows how many stores it should open in a given area because it has prices and profit-and-loss statements to guide it. What has the government?
No matter what location it chooses it will be convenient for some donors and inconvenient to others. It will affect some local businesses to their benefit, and others to their loss. How many people will be pulled out of the labor force to compile the list of contributors? Will they be volunteers or will they be paid? Will that list be made public or kept confidential? Will donors stand in long lines, as at the Motor Vehicle Administration? Or will there be enough volunteers or hired hands to minimize the wait, as at most fast-food outlets?
Perhaps the donations can simply be mailed in. But mailed in to where? This particular question will arise again when we talk about government buildings. For now let us note only that the recipient sites location must be publicized. But how? I am not suggesting that it will be impossible to properly publicize it. Merely, I want the reader to realize that publicizing anything is a market activity, requiring resources, time, and personnel, all of them being put in the service not of market activity, but of bureaucratic (e.g., government) necessity.
Let us talk about that list of donors again, and we shall meet a few familiar questions. The listing requires the use of some office supplies. The supplies so used will be unavailable to other consumers for their use. And in any case, from whom will they be obtained? The supplier chosen to provide them will enjoy a certain market advantage over his competitors. And just how were those invitations managed? Were they mailed out? By what carrier? Were they printed in a newspaper? All newspapers? Or only a favored few? Did the government pay each newspaper the same, or did it allow each paper to set its own price?
And that strongbox who manufactures it? Who sells it? Who loses out when his strongbox is not chosen for a particular location?
Surely by now, the reader is getting the idea. The government cannot act without intruding into the market, because to act it must move about in the world of men, time, and events. And in that world there is scarcity, a scarcity upon which government, like all other enterprises, must draw, and in drawing on it, it affects the market. And in affecting it, it has intruded into it.
And drawing on scarcity is no easy matter, either. The government itself is going to need a place in which to carry out its functions. Will it purchase land for that end? What land, and from whom? What real estate agents will profit from the privilege of handling the purchases? What contractors will profit from the economic advantage of putting up the buildings, and how will that advantage affect their interaction and competition with their economic rivals? Once the buildings are built, how will it be determined which of the competing utility companies will be favored with the contract to supply the electricity or the water or the heat? What service contractors will maintain the buildings and keep them clean?
Will there be restrooms in the buildings where the legislature debates and passes its impossible One Law or its objective laws? Will there be changing tables in them? Will there be feminine-hygiene products? What brands will be chosen? What suppliers of those brands? Will there be paper towels, and if so, what brands and what suppliers? Or will there be instead hot-air driers? What brands and what suppliers?
And if the government decides to purchase existing buildings, rather than contract for new ones, which sellers will be favored with the sale? How will the government know how much it should pay for them? How can it determine that the price it pays is justified by the value the building will contribute to the output of government? There is no way to answer that question, because there will be no competing government bidding on the building. All we can know is what return the seller is asking and whether there are others willing to offer it. And that information is inadequate to the question of whether a given building should be purchased at all.
For that matter, how will the government decide whether to own or to rent the buildings? And if it rents them, from whom? And the other questions utilities, maintenance, service to the building, the privilege of the renter will still irritate us.
If there is a military, it is going to need uniforms, weapons, vehicles. It is going to occupy buildings. It is going to engage employees. Someone must build its naval bases; someone must build its ships; someone must maintain them. Who? and how will that agency be chosen? Who will manufacture the weapons? And how can there be a price for them, if there is no competitive market? (Or will the night-watchman limited state permit free-lance arms dealers to function?)
Anyone who wants to deal with the government to supply its needs will necessarily configure his business to those needs. The government wants its employees to compose their memos in WordPerfect? Software suppliers who want that business will have to stock up on WordPerfect licenses, to the detriment of Microsoft Word, and to the detriment of applications created only for the Macintosh or for Linux operating systems. Secretaries will have to be sure they are fully conversant with WordPerfect if they want to get jobs in the night-watchman limited government or with agencies that supply contract services to it.
The actions necessary for a government to function at all are the actions of a major participant in the market.
Other imponderables make their appearance. Assuming per impossible that all the foregoing questions could be settled objectively and without intruding into the market, there is the perennial question of location. No matter where the government offices are located, some advantage will be enjoyed by nearby merchants (restaurants, parking lots, boutiques, gas stations), that is not to be enjoyed by their market rivals. And lest the reader think that this is a small matter, let him remember that all those rivals had helped finance the very government (perhaps by purchasing the contract insurance suggested by Ayn Rand) that is now giving market advantages to their competitors.
Like kudzu wildly spreading over topsoil and killing the vegetation it covers, the matters I have suggested begin to take over the discussion, and there seems to be no stopping them. Unlike kudzu, the difficulties have no apparent use other than to destroy what we may call the native flora of the limited government, i.e., the reasons we planted the limited government in the first place. Every government employee, every policeman, every legislator, every judge, every administrator will be taken from potential competing enterprises, thus affecting them for better or worse. And how will they be paid? Their jobs are not market phenomena. There is no market competition for their services. The government will simply be removing them from a certain amount of market activity. There is no way to competitively price their services. There is no way to know whether their pay is justified by the value they add to the final product, because there is no competition for the final product, and no price for it.
And to follow our kudzu on its destructive path, we will see that at the end of each day these non-market actors leave their non-market jobs and enter the market with consumer power that was given to them by the government, which is to say, by the people who purchased the governments insurance, played in its lottery, or dropped an unidentified amount into a strongbox. The people the disfavored merchants and service providers have indirectly paid (and to whom they could not have preferred others) will be taking their trade to business rivals. Something similar happens in the market all the time the baker from whom I purchase my desserts may very well decide to purchase his auto parts from someone who does not even patronize my baker but in that case, the results all represent choices, free choices, market choices made by all the actors. Government workers are not such; remember, the government has a monopoly on the use of force, so unlucky market actors will be required to support their rivals customers rather than someone of their own choosing. They will have no choice in the matter.
And that, I submit, is an injustice. An unavoidable injustice inherent in the existence of government, and it arises because we live in a world of limited resources, limited time, limited abilities. That is, we live in a world dominated by the Law of Identity and its corollary, the Law of Contradiction.
Can any of these outcomes be avoided? Of course not. The fundamental fact is that government does not really do anything. It hires people to do it. It purchases supplies created by others. It rents services from others, using contractors and subcontractors. All of them, to the last man, to the last nut and bolt, to the last lunch break, are taken out of the market and put into the service of government. I suppose someone might object that what I have described is not an intrusion into the market, but an extrusion from it. But government does not extrude from the market as though it were a gravitational force, like the moon pulling on the seas to cause the tides. It invades the market. It must enter the market with advertising; it must make use of physical objects that, if used by another, would be private property, because government is part of the same network of men, time, and events that the market is. The market and government coexist in time and space. They breathe one anothers air. Like physical objects, what one possesses, the other does not. What one uses, the other does not.
Not only can the outcomes I have described not be avoided, they are deeper and more far-reaching than I have yet let on. I have often referred to the payments made by government to the benefit of some and to the exclusion of others.
But how are those payments possible? What money will the government use to make its payments? In a free market, there will be a free banking system with, presumably, competing monies. There is simply no way for the government not to favor some issuers to the disadvantage of others. And if it issues its own money, operating a separate bank, it will be in the same kind of competition with banking that its lottery would be in with casinos.
And it will not be only certain banks that are favored against others. By favoring the currency or coins of some banks over others, the government will be indirectly favoring some artists over others, viz., the artists who designed the money of the favored banks. They will enjoy a publicity and approval to the disadvantage of their rivals. Our night-watchman limited government not only could not keep from intruding into the market, it has intruded into the arts as well.
But was that not already obvious? It intruded into the arts when it hired someone to design its lottery tickets. Or the boxes into which the donations were dropped. It intruded into them when it hired architects to design its buildings; it even favored certain architects if it rented its buildings. It intruded into the arts when it hired interior decorators. When it hired fashion designers for its police or military uniforms or judicial robes. If it has military musicians, it must favor some composers over others. It favored certain artisans when it purchased its weaponry, whether the weapons are plain or crafted with a certain beauty.
There is no possibility of dealing with the several banks (or artists) equally. What could that even mean? The imagination simply staggers at the attempt to define equality in this context.
And where there is no equality, there is advantage to some and disadvantage to others. The government is unable to act without conferring one or the other. And as soon as it confers an advantage on one and a disadvantage to the other, it has intruded into the market; it has affected market outcomes.
To restate the problem more generally: It is impossible for a government, any government, to be financed without affecting the free market, without intruding into it. It cannot act without influencing the market, because it is not possible to act outside the market. Therefore the mere existence of a government, any government, is incompatible with the postulation of a market not influenced by it. And therefore, a night-watchman limited government and a free market are contradictories: the existence of one, implies the non-existence of the other.
December 30, 2016
Chapter Six: Arguments from History and Fiction
© 2016 Ronald N. Neff. All rights reserved.
Published in 2016 at The Last Ditch by Croatoan Books, a division of WTM Enterprises.
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