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Silence is not much evidence of anything, so why suggest otherwise?

The following are not thoughts on Pope Francis but rather about a recent report by John Allen on Pope Francis.

Allen, associate editor of the on-line news site Crux, recently argued that “Francis pioneers a merciful way to oppose abortion, gay marriage”. Setting aside questions as to what the ubiquitous and apparently infinitely malleable adjective “merciful” means here, I take from his headline Allen’s claim that Francis recently did or said some things to “pioneer” new ways to oppose abortion and so-called gay marriage. That claim gets my attention, naturally, but should it not be proven by what Allen includes in his article? Allen offers four points.

2016 March for Life. Allen writes “As to the March for Life, Francis didn’t offer any direct endorsement, but US leaders in the anti-abortion movement say they’re convinced he’s got their backs.” Sorry? This sentence says that Francis said and did nothing in regard to the March for Life, reporting only that some pro-lifers feel that the pope supports them. If it is anything, that sentence is not a claim about Francis, it’s a claim about pro-lifers.

Francis need not, of course, have attended the March for Life (no pope has); he need not have sent it a supportive message (though other popes have); he need not even mention the March for Life if he does not wish to. But, if he did not attend, did not greet, and did not even mention the March, how exactly is this series of non-actions evidence that the pope is ‘pioneering’ a new way to oppose abortion? If eisegesis is reading one’s opinions into another’s words, what is it when there literally are no words to read one’s opinions into, but a message is divined from them anyway?

Italy’s Family Day. Per Allen, “With regard to Italy’s Family Day, Francis used an address to judges of the main Vatican [sic] court on Friday to insist that ‘there can be no confusion between the family willed by God and any other type of union,’ which was taken locally as a green light for resistance to the civil unions measure.” Sorry, but, as above, Francis did not mention Family Day, he did not mention Italian parliament members or its proposed legislation, and he said nothing about marriage or family that any Catholic could not have said in casual conversation. How, then, do Francis’ remarks to the Roman Rota ‘pioneer’ a new way to oppose ‘gay-marriage’ in Italy or anywhere else?

Absolution from abortion. Allen recalls the pope’s September extension of faculties to remit the sin/crime of abortion. This papal act, though it was awkwardly announced and in some ways was probably canonically redundant, was a papal initiative in regard to abortion. So far, so good. But Allen’s claim is, apparently, that forgiveness for abortion is a ‘pioneering’ new way to oppose abortion. If that logic is not evident to you, reader, well, it is not clear to me, either. I need an explanation or argument to understand the connection that Allen thinks the pope sees between “forgiving offenses” and “opposing offenses”.

Korean abortion memorial. Allen writes “During a trip to South Korea, the pontiff added an impromptu visit to a symbolic ‘cemetery’ for the victims of abortion at a Catholic health care facility outside Seoul, formed by a rolling grassy hillside dotted with small white crosses and topped with a statue of the Holy Family … Notably, Francis didn’t say anything at all during that visit.” Once again, Francis’s non-comments are offered as evidence of what he must have meant.

Granted, visiting a memorial is usually an expression about what is memorialized there, but in the Catholic tradition, we usually rely on words to give meaning to actions. A piece of bread is not silently blessed by a priest, but consecratory words are said over it so that the people know what the Eucharistic gesture means. In Allen’s view, the pope need not have said anything about abortion because the pope’s “haunted, anguished visage told the whole tale.” Maybe so, I wasn’t there. Maybe a look of papal grief is a ‘pioneering’ new way to oppose abortion. But Allen has already drawn more meaning from papal silences than I think can be prudently gleaned, so I may be forgiven, I hope, some reluctance to take this silence as ‘pioneering’ a new way to oppose abortion.

I conclude as I began. These remarks are not a criticism of Francis—there is no doubt whatsoever where he stands on the gravity of abortion and on the impossibility of ‘gay-marriage’ (even if his manner sometimes muffs his message) and he is not obligated to engage in any specific acts of opposition to either. But my remarks are a criticism of reporters who, with some proclivity these days, seem to offer the pope’s silence on various matters as evidence for what they think he means on various matters. May I suggest, instead, that silence is usually, pretty much, just silence.

A non-magisterial magisterial statement?

Magisterium, the teaching authority of the Catholic Church, is not something, I suggest, that can be switched on and off. Magisterium is either, according to objective (not subjective) criteria, engaged, or it isn’t. There are, of course, various degrees of magisterial authority in the Church and, yes, most folks hearing the word “magisterium” immediately, but usually wrongly, think that some grand ecclesiastical pronouncement is in the offing. But when popes and bishops publicly address themselves to matters of faith and morals, they are, I think, engaged in a magisterial act. A small act, usually, but nevertheless a real one. Protestations to the contrary—including treating magisterial acts as if their character were a matter of specific intentionality—do not change that fact.

Consider two scenarios.

First, some of Pope Francis’ unscripted remarks, e.g. his homilies during daily Mass, have caused confusion for the faithful. Early on, his spokesman, poor Fr. Lombardi, tried to steer controversial papal remarks into less problematic phrasings. Lombardi’s next step (well, after he declared he would no longer comment on unscripted papal remarks—a resolve that lasted a few days, as I recall) was to announce that Francis’ unscripted remarks were not part of the Church’s magisterium.

Excuse me?

Vatican press reps do not get to define what the “magisterium” of the Church is or what constitutes a “magisterial” act. Popes and bishops, addressing faith and morals, in public statements made during a constitutive part of a liturgy (see the definition of a “homily” in Canon 767), are, I think, engaged in a magisterial act, whether they expressly advert to that fact, or not (see CCC 87, 892, 2034; Canon 753). Of course, papal or episcopal remarks made under such circumstances rank near the bottom of the magisterial authority list but, once uttered (not to mention, recorded and published), they contribute, in some small degree at least, to the ordinary magisterium of the Church. Appreciating that point should, if nothing else, give prelates pause in how they express themselves in certain contexts.

Of course Francis is by office as well as by personality a unique figure in the Church so the concerns some might feel at how his press office treats the notion of “magisterium” could be assuaged by seeing it is as a necessary expedient. But lately, I fear, the ‘it’s-magisterial-only-if-we-say-it’s-magisterial’ line is appearing elsewhere in Rome. Consider a second scenario: the recent “Reflections on Theological Questions” published by the “Pontifical Commission for Relations with the Jews”.

In this document, signed by the cardinal president of a pontifical commission and co-signed by the bishop vice-president, “theological questions are further discussed, such as the relevance of revelation, the relationship between the Old and the New Covenant, the relationship between the universality of salvation in Jesus Christ and the affirmation that the covenant of God with Israel has never been revoked, and the Church’s mandate to evangelize in relation to Judaism.” Now, if cardinals and bishops, appointed by popes to direct pontifical commissions, issuing statements on some important points of faith entrusted to those commissions and publishing them through the Holy See, are not engaged in a magisterial act contributing to the “ordinary magisterium” of the Church, who exactly would be?

To be sure, the PCRJ document is not “infallible” (as if only infallible assertions were part of the magisterium), nor is it directly papal in character (as if only popes could contribute to the magisterium), nor is every assertion therein ‘magisterial’ (as if, say, historical summaries were objects of magisterium). But the PCRJ document definitely, and in many places beautifully and insightfully, contributes to the Church’s ordinary teaching regarding, among other things, the relevance of revelation, the relationship between the Old and the New Covenant, the relationship between the universality of salvation in Jesus Christ and the affirmation that the covenant of God with Israel has never been revoked, and the Church’s mandate to evangelize in relation to Judaism.

And yet the PCRJ text claims that it “is not a magisterial document or doctrinal teaching of the Catholic Church”. Of course it is!

If Cardinal Koch had wanted to publish personal reflections on Jewish-Catholic relations he could have sent them to a scholarly or popular journal. Context would have satisfied all but the most scrupulous that such remarks were personal, not ‘magisterial’ in character. But that is not what Koch did. Instead, in his capacity as the prelatial head of a pontifical commission in charge of certain questions he issued a document expressing certain theological points. That makes this document a small, but definitely magisterial, exercise. If there are people out there who do not understand what it means, and what it doesn’t mean, to say that such-and-such a statement is part of the (here, ordinary) magisterium of the Church, then by all means, let’s explain matters to them. But let’s not downplay the character our own documents just to avoid setting off a tizzy of confusion among semi-informed observers.

But there is, I think, a deeper point to be appreciated in all this: the relationship between an intention behind, and the nature of, an act is complex; the lawyer in me knows that much. But lately, a rising number of persons seem to think that they can control the characterization of their act simply by declaring an intentionality for their act. That’s a very slippery slope. As a rule, I think an intention to perform an act is relevant to one’s responsibility for the act, but is not dispositive of the characterization of the act.

Popes who make deliberate assertions about faith or morals in public remarks are contributing, in a small way, to the ordinary magisterium of the Church; dicasterial prelates who make deliberate assertions about faith or morals in materials published through the Holy See are contributing, in a small way, to the ordinary magisterium of the Church; the rest of us should be able to tell, without having to await (unqualified) clarifications from press offices and without having to scan dicasterial documents for (ineffective) disclaimers, whether the Church’s magisterium is in play. If it is in play, then we can worry about what level of magisterium is being applied.

Update: Jimmy Akin responds to my post, here. He makes some good points, as usual. Those reading his comments might be interested in my reactions.

(1) Of course the Holy See issues some non-magisterial statements. (2) I too think some examples of ‘non-magisterial magisterial’ statements can be found prior to Francis. (3) My approach does not make identifying magisterial statements “very easy”. Real thought still has to be applied. What my approach does do, I suggest, is underscore that magisterial character is not so casually turned off and on, and underscores that prelates need to exercise greater care in making assertions on faith & morals. (4) Jimmy’s analysis strikes me as having exaggerated the conscience-binding character of individual prelatial statements; rather than our looking, as I think the Church has traditionally done, at the magisterial teaching on XYZ as a whole, Jimmy seems to fear that my approach makes every individual prelate’s statement on XYZ into something binding on consciences. To avoid that, he prefers to let magisterial character be turned on and off much more readily than I think can be supported. (5) Jimmy seems to leave unaddressed my concerns that what I am calling ‘specific intentionality’ (whereby an action must be characterized as the actor intends it be to characterized, rather than characterized for what it really is) is, more and more, being allowed to determine the character of an ecclesial act (although this problem appears in several other areas of life), rather than just responsibility for an act. I repeat that I think this is dangerous path to have set out on.

It’s not impossible, just very difficult, to glean ‘heresy’ from conduct

My observation that Archbishop Blase Cupich of Chicago is not a “heretic” exposed considerable misunderstanding about the notion of “heresy”. Confusion on this matter should surprise no one, for antinomian times, such as those obtaining now, discourage wider familiarity with certain basic terms of ecclesiastical discourse. Among the comments I have received, some run along these lines: “Just look at everything Abp. Cupich does! If he’s not heretic, no one is!”

Oh dear. Shall we examine this claim in light of what the law actually says?

Three points: (1) “Heretic” is not a term used to describe, say, a prelate who one thinks is doing a bad job, but rather, denotes someone given to “the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith” (Canon 751). (2) “Heresy” is not a ‘bad attitude’ but a crime punishable by a latae sententiae excommunication (and yes, automatic sanctions should be abolished from Roman canon law as they have been from Eastern, but the sanction itself—as opposed to the non-process by which it is supposedly incurred—reflects the gravity of the crime). And (3) a variety of canons (e.g., 18, 221 § 3, and several besides) protect the faithful against the unjust infliction of sanctions in the Church. In short, “heresy” means something very specific in canon law and there are criteria for using the word correctly.

Now, setting aside the what “is to be believed” (we’ll take an easy example below), the vast majority of heresy cases with which I am familiar took as their occasion a speech or writing, that is, a verbal proposition or assertion: “Jesus was not God” or “Mary had other children by Joseph” and so on. These assertions directly present, or logically and unequivocally amount to, the ‘doubt or denial’ of a protected truth that, if uttered under the circumstances outlined in Canon 751, constitute heresy—but only such assertions and only if uttered under such circumstances.

Our question here is: can physical actions or a manner of conduct amount to a verbal assertion of the sort qualifying as heresy? Possibly. Let’s take a case wherein there is no question about what is to be believed with divine and Catholic faith.

Suppose a Catholic, contrary to CCC 1374, does not accept that Jesus is present Body, Blood, Soul, and Divinity, in the Eucharist. He never expresses this opinion in words but steadfastly refuses to make a sign of reverence when passing before a tabernacle. In such a case, his action/omission accurately reflects his heretical views, yes—but, is it not obvious that the evidentiary problems (of trying to parlay someone’s failure to genuflect when passing before a tabernacle into proof of the crime of heresy) are almost insurmountable? In this case, the action or omission might well be evidence of heresy but it is not remotely proof of the crime.

Let’s take a more graphic case: the same man, disgusted by what he regards as idolatry of a piece of bread, breaks open the tabernacle and scatters the hosts on the ground. Some might say, “If that is not proof of a Eucharistic heresy, what would be?” In one sense, they are correct, for scattering hosts on the ground as if they were nothing but bits of bread would be strong evidence of a certain Eucharistic heresy. But here’s the problem: the exact same action—stealing hosts and scattering them on the ground—could be committed by someone who thoroughly believes in the presence of Christ in the Eucharist but does the evil act as a gesture of contempt for Jesus! We see, thus, that without words, or without a very wide and sustained pattern of activity/omission, it is very difficult (not impossible, but very difficult), to glean heresy from someone’s conduct. The burden is on the accuser to prove charges, especially serious charges, and proving heresy by words is, as it should be, difficult; but proving heresy solely by actions or omissions, even repeated ones, is very difficult.

Mind, one’s deleterious actions or omissions might be evidence of other canonical crimes (e.g., as above, sacrilege, per c. 1367) or, as suggested in my earlier post, pastoral negligence (e.g., failure to urge the observance of ecclesiastical discipline per c. 392), but heresy?

I don’t think so. In most heresy cases, words speak louder than actions.

Clergy have consciences, too

Chicago Archbishop Blase Cupich is not a heretic. Although that adjective is being tossed his way with some frequency these days, there is no evidence that Cupich doubts or denies some doctrine that must be believed with divine and Catholic faith (1983 CIC 751) and so he is not, as far as I can see, a heretic.

But if Cupich really has, as reported here, doubled down on his earlier intimations that, among others, divorced-and-remarried Catholics and Catholics living in ‘same-sex marriages’ should, and must be allowed to, ‘follow their conscience’ even if their conscience leads them to the proverbial communion rail, then he is misrepresenting Church teaching on marriage—which holds marriage to be a permanent union between a man and a woman (1983 CIC 1055, 1056)—and is failing to urge the observance of all ecclesiastical laws (1983 CIC 392), among which laws two are especially relevant in approaching for, and being given, holy Communion, namely, Canons 915 and 916.

As has been explained many, many, many times, Canon 916 impacts the individual considering approaching for holy Communion and directs those “conscious of grave sin” to refrain from approaching for the Sacrament. Individuals must form their consciences in accord with Church teaching and, yes, Cupich alludes to “Church teaching” in underscoring the fundamentality of conscience, but he fails, I fear, to point out, among other things, that conscience is used largely to assess whether one’s concrete action in a given situation accords with Church teaching—not to determine whether one agrees with or accepts Church teaching in the first place.

Canon 915, however, in contrast with Canon 916, directs ministers of holy Communion to withhold the Sacrament, not from “sinners” per se (as if ministers could read souls!), but rather, from those who “obstinately persevere in manifest grave sin”. Now there is zero doubt but that, in Catholic tradition, attempting marriage following a civil divorce and/or entering a “same-sex marriage” is to undertake the kind of gravely wrong public action that triggers ministerial obligations under Canon 915. Thus, when Cupich (and he is not alone in talking this way) says “It’s not up to any minister who is distributing the Eucharist to make a decision about a person’s worthiness or lack of worthiness” he misses the point: a minister is not assessing personal “worthiness” when withholding holy Communion from one’s whose conduct is described in Canon 915, but rather, is acting in accord with an age-old sacramental discipline designed to protect both the Sacrament from the risk of possible sacrilege and the faith community from the harm of classical scandal caused by someone’s public contrarian conduct.

Finally, recognizing the sharp differences between Canon 916 (impacting individuals) and Canon 915 (impacting ministers) allows us to make one last point: amid all the discussion of the primacy of conscience it seems almost forgotten that clergy have consciences, too. Many clerics, Deo gratias, and other ministers of the Eucharist, recognize the significance of their sacramental office and know—as all Catholics should know—that their actions, too, are carried out before a God who sees all. These ministers understand Church doctrine and discipline on marriage, Communion, conscience, and liturgical office, and they wish to act in accord with those teachings and laws, even in the face of growing pressure to disregard these considerations and despite the lack of support some experience from Church leadership.

Their consciences, too, I suggest, deserve respect.

If we do discuss ‘clerical celibacy’, let’s really discuss it

The ever-informed Sandro Magister suggests that the next Synod of Bishops will treat “married priests”. After seeing what the last two synods did with non-negotiable matters such as extending Eucharistic communion to divorced-and-remarried Catholics—something that should never have been debated, but was debated, with negative consequences for the faithful’s understanding of Church teaching and discipline in several areas—I do not relish seeing a crucial-but-negotiable matter (such as married clergy) treated in a synod any time soon. But on the chance that Magistro is right let me suggest three areas that, in regard to married clergy, would require careful study.

1. Clerical continence. Western tradition, and the canon law that upholds that tradition, calls without question for a completely sexually-continent clergy. Yet, in the space of one generation (at most two) that shining observance has been inadvertently but completely forgotten, first among tens of thousands of married deacons and now among thousands of married priests. No coherent synodal discussion of clerical celibacy can take place without deciding, once and for all, whether “perfect and perpetual continence” (1983 CIC 277 §1) grounds that discipline. Naturally—and though I limit my contribution to this discussion to matters of law which, as we know, often protects truths it does not articulate—the canonical question of clerical continence will eventually turn, I suspect, on a deeper theological understanding of the character of priest as Spouse and on the nuptial imagery of his actions in the Eucharistic sacrifice.

2. Clerical celibacy. Besides the unspoken (unspoken because, until a few decades ago, it was so obvious) foundation that clerical continence provides for clerical celibacy, most defenses of clerical celibacy have turned on practical matters such as the higher costs of married clergy and the complications that married life bring to ordained ministry. While interesting, such secondary concerns do not persuade that clerical celibacy is itself a good to be pursued. Recently, however, canon law and ecclesiastical literature has begun to recognize celibacy itself as “a special gift of God” (1983 CIC 277 § 1), suggesting that clerical celibacy, besides working in support of the more central value of clerical continence, and besides offering some practical advantages to Church administrators, is a value worth studying, embracing, and sharing. Clerical celibacy qua celibacy, therefore, must be treated by a synod, and not just celibacy qua fence-around-the-law of continence, or celibacy qua cost-savings scheme for ministers.

3. Eastern approaches to married clergy. I say Eastern “approaches” to married clergy because there is not, contrary to popular impression, just one approach among Eastern Catholics. Not all Eastern Churches allow married clergy, and among those that do permit it, not all clerics marry. Still, Eastern Catholic Churches generally accept married men into holy Orders and allow those men to live more conjugato. Now, for reasons that go beyond canonical, Rome has long steered clear of directly addressing how a married, and essentially non-continent, clergy took hold in the East (though most eyes look back to the controversial Synod of Trullo) and asking, in that light, whether this practice should be merely tolerated, mutually respected, or positively protected. A synod purporting to treat of clerical celibacy in the Catholic Church must honestly address the divergence between East and West in this regard.

In sum, the degree to which a synod (if one is called) on clerical celibacy addresses, or avoids, clerical continence, celibacy in its own right, and Eastern observances, will be the degree to which a synod may be taken as competently considering clerical celibacy. + + +

Unus ex Patribus [in Coetu de S. Hierarchia] animadvertit in historia Ecclesiam fuisse reformatam quando in honorem restituta fuit lex coelibatus. Communicationes XVI: 177.

Most words are not crimes

I am not sure what Archbishop Rino Fisichella meant when he said that “we need to understand well ‘physical violence’ [against the pope] because sometimes words, too, are rocks and stones, and therefore I believe some of these sins, too, are far more widespread than we might think.” Yes, we do need to understand the terms of law well but, as the prelate was speaking in the context of faculties to absolve from automatic excommunications, and as there is an automatic excommunication against those who employ physical force against the pope (1983 CIC 1370 § 1), I am guessing that Fisichella might be thinking that ‘harsh language’ against the pope is a canonical crime that makes one liable to excommunication. If so, he is mistaken.

Besides Canon 17 that requires canons to be understood in accord with the proper meaning of their words, and Canon 18 that requires penal canons to be read strictly (i.e., as narrowly as reasonably possible), and Canon 221 § 3 that protects the faithful against canonical penalties not authorized by law, the whole of Book Six of the 1983 Code is redolent with an emphasis (some might say, to an exaggerated degree) on benignity in the application of penalties in the Church.

Now, Canon 1370 criminalizes “vim physicam” against the pope, not “verba aspera” or variants thereon, and I know of no canonical commentary that includes “words” as a species of “physical force” in this context. Indeed, the CLSA New Commentary, the Exegetical Commentary, the Ancora Commentary, and the Urbaniana Commentary—at which point I stopped looking—expressly exclude ‘verbal violence’ from the range of actions penalized under Canon 1370.

To be sure, hateful speech directed against any one is objectively sinful, and if directed against a man of God, let alone a pope, it is especially wrong. Occasionally, speech might rise to level of crime (see e.g., Canon 1369 on expressing insults against the Church or Canon 1373 on inciting animosity against the Apostolic See) but the penalties in such cases are not automatic and do not extend to excommunication. Usually, verbal hate is just a sin (if I may put it that way) not a crime.

Priests may be assured, then, that if penitents confess uttering hateful words against the Holy Father, they may reconcile such sinners in the normal course of the sacrament and need invoke no special faculties or powers to absolve of sin or (non-existent) crime.

Et poenae latae sententiae delendae sunt.

One city does not make a world

The bi-annual papal blessing “Urbi et Orbi”—to the City (meaning Rome, of course) and to the World—is a charming Catholic event reflecting the solicitude a pope feels for the City entrusted to his episcopal care and the World entrusted to his papal. The Italians’ gift for irony, however, has—so I am told—led to the quip that, from time to time, some popes confuse “the City” with “the World”, meaning that, Roman experiences and perspectives are not always applicable to the rest of the world, though they are sometimes treated as if they were. Humorously the quip makes an important point for Church administration, especially administration at the international level: one locale’s situation is rarely identical to another’s; one prelate’s experiences are rarely identical to another’s.

Dr. Kurt Martens is an internationally-respected Belgian canon lawyer who, for the last ten years, has taught canon law at the Catholic University of America. His brief reflections on the recent canonical conference in Rome, a conference focused on Pope Francis’ changes to the annulment process (due to take effect in about three days), are well worth reading. They expressly reinforce, moreover, in regard to a canonical institute about which I know quite a bit (annulment procedures), a wider concern I have about Francis’ consistently negative approach to law and lawyers, namely, that Francis is treating canon law around the world as if it operates (or fails to operate) as he apparently experienced it in Argentina. If that is so (and that is the more benign interpretation that can be accorded Francis’ oft-invoked antinomian rhetoric), then the pope’s approach to universal annulment reforms would rest on a fundamentally flawed assumption.

Canon law, the oldest continuously-functioning legal system in the Western world, is an international legal system tasked with and capable of functioning across hundreds of civil legal jurisdictions, amid thousands of ethnic and linguistic groups of Catholics (each with their own historical and cultural experiences), at the hands of inconsistently-trained officers facing millions of judicial and pastoral decisions annually. Canon law is not and never could be always uniformly well-practiced. That is a patently impossible standard to hold any legal system to meet, let alone one with the responsibilities borne by the Church’s legal system. But, though one’s experience of canon law in a certain place (and largely in one context, marriage nullity) over a period of a few years was unsatisfactory, that would be a wholly insufficient reason to assume that all canonical cases around the world are handled as (allegedly) badly as the (relatively) few cases one might have observed in that one place.

The pope has related some hardships (bordering on the scandalous) that he says faced Catholics wishing to have their marriages adjudicated in Argentina. I believe him, and have said so. But I have yet to hear a single papal (or pontifically affiliated) comment to the effect that the annulment process can work, and does work, and does work well, at least in some places, if not in many! Re-sound some apparently skewered experiences of canonical tribunals in one place within an echo chamber of close advisors who also seem to have little interest in law or in the benefits that law brings to the Church, and thus extrapolate too hastily from the experiences of one City (Buenos Aires) to the experiences of the World, and no wonder there result such confusion and concern in the wake of reforms meant to “fix” an entire system—much of which system might not have been broken!

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