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SOSC 2350 Mid-Exam Review

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York University
Social Science
SOSC 2350
Dena Demos

SOSC 2350 Mid-Exam Review Glossary Abstraction: This is the belief that law should operate at a high level of abstraction that excludes consideration of the social context. This means that judges shouldn’t consider social norms and ideologies when exercising specific laws. This way, the legal system would be considered fair because it won’t be attached to or have allegiance with a particular culture or set of norms. By remaining abstracted it doesn’t take form of any cultural or social beliefs and doesn’t draw any of their content. This is also fair because it speaks to human interaction but not of the specific human content. Therefore, under abstraction everyone would have the right to education, freedom of consciousness and rights that are general and not specifically detailed with cultural context. Abstraction offers laws as beings that are a universal, faceless, nameless, and genderless subject. Due to its lack of qualities it is fair for everyone. That being of law wouldn’t communicate or give more privileges to a specific individual over another. However, abstraction also causes the problem of making society feel unfulfilling because we as humans crave a sense of belonging. Therefore, abstraction is a belief that doesn’t work because it is necessary for us to feel associated without obliterating the specific qualities that make up the characteristics of our culture. Analytical Jurisprudence: This is the legal theory that suggests judges should only look at the law as it is in society. This is the judge looking at the law as it is written and based on the exact wording of the law they must come up with a decision. This form of jurisprudence is very strict and forbids the judge from using judicial activism or any of their own experience. Analytical jurisprudence suggests that judges are only present to read and understand the written law, and that they shouldn’t legislate from the bench. Artifactualism: This is the legal theory that claims judges cannot understand law without recognizing values reflected in it. Artifactualism suggests that judges shouldn’t look at law as “the Law” in the sense that it is an independent entity, but instead look at it as “laws”. It offers the interrogation and in-depth analysis of the law. This analysis is necessary to acknowledge that laws reflect themselves. For that reason and for the needs of society, judges must investigate, interrogate and see if laws are justifiable. Artifactualism is a clear rejection of legal positivism in the sense that it doesn’t like seeing “law” as an entity but instead considers laws to be changing. This means that since laws are constantly created for application to specific situations, judges cannot attribute one “Law” that is enduring and eternal. Bourgeois: These are the elite members of society that have social control over their given societies. The bourgeois class is often made up of lawmakers, business owners and is normally a very small percentage of the their society’s total population. The bourgeois are living evidence that despite which economic period is present in society (feudal, industrial, etc.) there will always be one class of individuals enslaving another. The modern bourgeois class is the product of a long course of development through a series of revolutions. The bourgeoisie has put an end to all feudal, patriarchal, and idyllic relations. Instead, it has pitilessly torn apart the feudal ties between men to their natural superiors and has left remaining nothing but self interest in the form of cash payments. Marx thought that law was the bourgeois’ expression of self-interest in terms of using law to force proletariats for cheap pay. Charismatic Authority: This is a theory of authority that suggests a group of people’s devotion to exemplary character of an individual person. This character can be a certain quality not accessible to the ordinary person as well as a vision people agree with. Authority is only seen as legitimate in this regard if the followers accept the claims and meanings of the character. This authority usually arises when society desires a calling for interruption of average norms and choses to challenge them. Consider the entrepreneur who is attractive because they want to change the suffering. It’s something new they will make that is often appealing. This claim alone will attract new members to the group. This authority is not bound to intellectually analyzable rules meaning it can go beyond into the supernatural. It is however inherently unstable authority because it transcends the life of the household and society. The figures of authority in this type are only interested in their own vision and their interest in their members only goes as far as the usefulness of those members. All charismatic rulers eventually fade away after people stop following them. Civil Liberties: This is also referred to as Individual freedoms. It is the classical liberal theory focusing on the appropriate role of law and government in the lives of citizens. Essentially, what it does is focus on individual freedom as the desirable outcome of a system of law. The purpose of civil liberties is to secure and satisfy the rights and liberties of citizens with the least amount of interference. These civil liberties include the freedom from forced labour and slavery, the right to liberty and security of the person, freedom of expression, freedom of religion, freedom of thought, freedom of association and assembly, the right to due process, the right to privacy and more. Command theory of Law: This is a model of legal positivism that suggests laws are a species of commands in the sense that laws must have a certain pedigree to have legal validity. This theory focuses on the separation of commands based on their source. A sovereign (lawmakers for Austin) is seen as the only legitimate source of commands, and therefore members of society must obey the sovereign’s commands. The sovereign is to be determined empirically and the question of the source of the sovereign’s legitimacy isn’t put into question. This theory forces us to say that we are obliged (forced) to obey laws in regard to where we have no choice. This specific theory sees commands (laws) as a coercive method of social control. For Austin, commands are a significant desire and ability to inflict evil or harm non-satisfaction onto societies members, thus causing them to feel obliged when obeying commands. Therefore, the commands have the power to impose sanctions. Coming into Force: This refers to the process under which government policy becomes law in Canada. There are three distinct stages from which the government policy goes to law. These consist of the cabinet stage, parliamentary stage, and the coming into force stage. The Cabinet stage consists of the policy originating through intelligence or federal/provincial agreements, ministerial proposals and other resources as well as our national budget. It begins with the sponsoring departments preparing a Memorandum (written future message) to the Cabinet. That memorandum must then be approved by the Department of Justice before it can be formally legislated. During the legislation the sponsoring office holds a discussion in which the memorandum is revised. After its completion it is submitted to the appropriate cabinet policy committee that reviews it and writes a report. Once the Cabinet approves the memorandum the legislative drafters of the Department of Justice write it in English and French. The bill is then reviewed and approved by the sponsoring people. Afterwards, the government house leader seeks authority from the Cabinet to approve the bill for the introduction to Parliament (debate). After this, the new bill enters into the Parliamentary stage where it is introduced, read and assigned a number. During a second reading it is debated by parliament. It then enters the report stage where the bill is passed by the committee and the House of Commons. By the third reading the bill is debated one last time and if it passes then it is sent to the senate. If the bill originated from the Senate it is sent to the Royal Assent. Finally, in the coming into force stage the bill becomes an Act when it receives royal assent. The law coming into force can also be on the day or days specified by the act or the day set by the Governor in council. Constitutional Law: This is the law prescribing the exercise of power by the organs of the state. This means that it is the law that explains which organs can exercise legislative power, executive power, and what the limitations on those powers are. Essentially this form of law is used to restrain the amount of power that the government has over its people by offering people rights protecting their liberties, and adding additional laws to restrain parliamentary activism. Entrenched Law: This is the constitutional law that is entrenched in legislation. This means that the law protecting citizens’ rights is permanent and static and it can only be changed by a specific amending formula. This formula requires the agreement from the federal government and every provincial government. This way the law becomes real, constant and consistent meaning it rarely changes and citizens can rely on it. Empiricism: This is a science of law in the sense that law can be broken down to specific equations and through those equations legal scholars can understand how laws came to be. At the same time empiricism is the theory of knowledge that suggests that the empirical senses are the primary source of where knowledge comes from. These senses can include experiences and found evidence when formulating theories of knowledge. Locke claimed that empiricism worked in law when associated with the accordance or discordance of them. Mill on the other hand found that the empiricism is our deductive understanding of external experiences. That is experiences that happened to other people. Ethnocentrism: This is one of the theories that explain how cultural factors attribute to the resistance of social change. This theory suggests that there are some groups who consider themselves to be “superior”. This superiority grants them the knowledge of the only “right” way of logical and empirical reasoning of the world around them. This superiority also causes people to become unreceptive and unaccepting of the ideas and methods used in other groups. Due to this resistance, ethnocentrism often constitutes a big challenge when attempting to create social change. Formal Equality: This is a belief under the Federalist Paper’s modern rule of law. This particular equality suggests that people are equal and should be treated the same regardless of their specific circumstances. This is opposite to substantive equality that suggests that equality requires treated people differently to account for the inequality of their situations, thus forcing people’s circumstances to be taken more seriously. Formalism: Legal formalism is the notion that legal rules form a consistent and complete view and way of life that provide the answer to any legal questions. Essentially, this is a holistic approach to life in which legal rules answer questions through logical deduction by applying laws to specific cases. The judicial reasoning in formalism can yield to determine legal results. Formalism takes place in interplay of coherence and logic that can be understood and predicted. These rules must abide to its universal system of self-reasoning. Historical Materialism: This is the idea that challenges the notion of history in a linear fashion in a casual manner. It looks at the material reality present in history and questions whether there’s a reflected idea involved. By questioning the ideas involved in specific material possessions throughout history such as who posses what material, legal scholars can determine whether there’s a certain pattern to material possessions and socioeconomic relations. Marx suggests that throughout history there has been a consistent class struggle for power and dominance over the total capital. Marx also points out that through historical materialism legal scholars can observe that there have been class struggles are throughout history where class systems simply moved from one group of people to another. Ideology: The ideal and justified way that people form their beliefs in the way they see the world and everything around them. This works essentially on the aspect people’s environment influences their preference for an ideal. Marx also suggests that ideology is the false consciousness concept. This refers to the way of seeing the world. Ideology encompasses the views of everything such as cultural identity, religious traditions and social norms. Therefore, our ideology will influence us on how we will see ourselves in relation to others. It will also shape all of our actions and interactions with other members of society. Neo Marxists suggest that the ideology of hegemony in the sense of capitalism has left us all sucked into a capitalistic way of reasoning that cannot be undone. Judicial Activism: This is a philosophy of judicial decision making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedents. Essentially, this is an excuse for judges to change the law and curb instances and factors to their personal philosophy. Since the judges, who have trained and learned law for many years, have gained a great amount of experience it could be warranted in some regard that they be allowed to read their own preferences into law. Through activism, judges maximize rights without regard for competing social values, which can be seen as problematic. This means that either the left or right political parties might be unhappy depending if the judge is giving the right of contract (left would be unhappy) or if the judge is privileging minorities (right would be unhappy). Activism also suggests that judges have the last word, meaning that if the judge is bestowed the impartial decision based on the evidence then it shouldn’t be seen as bad. Activism can also be good in the sense that it could be judges interpreting the law in a way that’s peculiar to their situation in a case. The rule of law is meant to administer universal and equal application where no one is above the law: everyone is equally rewarded and punished. Jurisprudence: This is the study of law. Jurisprudence focuses on judges being neutral and impartial arbiters of facts. It sees them as judicially independents that adjudicate by guiding through precedents. They are the experts in legal analysis by looking through legal rules and principles. The debate between the functions of judges is whether they should apply the law or interpret the law. Jurisprudence focuses on the task of judging being difficult, as well as involving a broader social, political, economic, and cultural context. This requires a training of jurisprudence with the respect of law and the act of judging. Jurisprudence under the Justice Core is a theory of legal decision-making law, and it considers it to be more of an “art” than a “science” because the law has to be vogue, trendy or politically correct. Jurisprudence in itself is a multi-dimensional interrogative process in the pursuit of a better understanding of the nature and function of the law. This process involves looking at nature of law, as well as the roles and function of legal institutions in society. This process also depends on the shared values of a nation, social consensus and specific legal theories in use. Justiciability: This refers to the fact that claims must be triable in the court in questions. This specifically refers to the idea that there are specific courts responsible for specific types of legal issues. For example, in a legal case dealing with child custody the jurisdiction would be given to family court as opposed to criminal court. The significance behind justiciability is that it suggests that there is a specific type of court or location of resolution that combats specific legal issues. At the same time justiciability suggests that some courts do not have the jurisdiction of dealing with particular types of cases, suggesting that some cases must be dealt with and addressed at a different level. For example, a gay-rights case cannot be addressed in municipal court because the legal issue itself would be on a constitutional level. Legal Instrumentalism: This is the Marxian theory that law is an instrument of capital, meaning it serves the interests of the dominant class. This is related to property law and criminal law being created to protect the property and the sustained interest of the ruling class. Since the wealthy wanted workers, they used the law to help them. This is related to vagrancy laws being designed to force labourers to work for cheap pay. The law is also a part of the superstructure that reflects the existing economic organization of society. Marx’ critique focuses on the coercive nature of the law in the sense that law directly expresses economic interests of the ruling class to allow them to expand and consolidate their power. Therefore, for Marx law is not seen as fair or just. Legal Positivism: This is the contrary belief to natural law theory. Contrary to natural law, legal positivism demands for the separation of law and morality for the purpose of properly criticizing law and not simply obeying it. The separation of law and morality also allows for the further development and evolution of those laws. This way, judges need to focus not on what the law as written is, but what the law ought to be (the ought doesn’t have to be moral). Legal positivism offers empiricism to law in regards to making it formula-like to add a science perspective. In this approach human beings make law and the law can be constantly changing. There are two types of legal positivism models: H.L.A. Hart’s and John Austin’s. Hart had a civil model of legal positivism in which he viewed positivism as more of a system of rules intended to systematically organize society to be properly functioning. It viewed law as not evil and more for the purpose of civilized life and complex institutions. Hart’s system consisted of primary (rules about particular circumstances) and secondary rules about recognition, change and adjudication of rules in a legal system. In order for a legal system to work both rules had to be present. Austin’s model of positivism focused more on laws being direct commands and the lawmakers maintaining sovereign positions. Legal-Rational Authority: This authority holds to the belief in the legality of enacted rules. This means that there is a consistent system of abstract rules that has been intentionally established. This system is of consciously made rules for a specific purpose. LRA can be seen as a relationship of membership to an organization because everyone is seen as equals and the results of the group affect the results of the individual. Also, in an LRA every individual shares the same rights and duties as a member of that organization, meaning everyone is aware of the expectations people place on one another. Members of LRA do not owe obedience to any specific individual, but to the over all organization itself. Therefore, people in power in LRA only have so much authority as to be representatives of that organization. Members are all equal before the law in both economic and social differences. It’s set up to be impersonal and abstract so everyone can be represented in and by it, which means that it doesn’t reflect the identity and the value of people as a group. The rule of law is the same for all. This creates stability because all individuals have access to the law, informs them of the punishment, which in result encourages them to abide the rules. Legal Realism: This is the legal theory that acknowledges that law is reflect in society, and there fore as it is reflected in society it must also be affected by society. Legal realism demands to look behind the intentions of the law, and not to trust judicial decisions. By evaluating judicial decisions other judges can see if those decisions were consisted in the behaviours (beliefs) and the actions that the previous judges put into them. Law is seen as a part of a larger system in the sense that if focuses specifically on the role that judges play within law. This role can either be judicial restraint, judicial application or judicial interpretation resulting in judiciary activism. Moral Entrepreneur Theory: This is one of the four different models of lawmaking. It is designed in order to create a sense of order, safety and justice according to our beliefs. The legal framework behind it is intended to be a reflection of what we as society see as just, and if the law is an accurate reflection of that we will have more likelihood to abide by the law. The moral entrepreneur theory, despite its name, has nothing to do with morality. Instead, it suggests that laws are made to be highly ideological in the sense that they are motivated by a set of beliefs or intentions. Laws in this scenario are meant to create or maintain a particular moral constitution of a society. Laws are also created as a meant of stamping ideology with legitimacy and respectability. An example of this would be the anti- miscegenation laws in US and Canada, the White woman’s labour laws and the Indian Act. These laws maintain a specific belief of society such as racial purity in order to secure economic rights and interests with the rule group. Therefore, these laws would work against anyone who wasn’t considered to be a member of the desired group. This wasn’t considered to be racist, it was simply considered to be the desire and belief of society to keep race pure. However, to a certain point this showed how racism was used to justify ideologies that had racist intents. These laws can’t be debated without first considering amorality or immorality. Myth of Equality: This is a legal theory that suggests that equality ignores the real value of seeing people as “equals” and instead focuses on a systemic form of distributing equality. This suggests that there is superimpose that is created by inherently biased institutions and social systems. This means that society uses their supposed equality to hide and ignore the pervasive nature or racism and sexism. For example, the LSAT seems to be completely neutral, however it focuses on questions that use references that a specific group would associate with. There are also computer generated marching systems used for hiring that demonstrates how equality isn’t necessarily displayed in that case. Therefore, neutral practices are not inherently neutral but instead reflect the societal values, norms, and morals which causes a perpetual image of desired person. Mischief Rule: This refers to one of the methods of interpretation of statute law by the courts. It suggests that there should be attention given to the problem the statute was intended to solve. Essentially what this relates back to is the aspect of legal positivism in the sense that the interpretation of the law shouldn’t necessarily always be to look at the law as it is written, but instead focus on interpreting law for the purpose that it was intended for. This rule opposes the literal rule that suggests looking at the law as it is, and the golden rule that looks at laws only as far as to remove conflicts of the literal interpretation. Therefore, the mischief rule can be considered to be the best for of adjudication and interpretation for when the law runs out. Natural Law: This is one of the legal theories of adjudication. It refers to the combination of law and morality in the sense that if a law is immoral, it is not a law. It adds an additional emphasis on universality in the sense that all laws must be moral. In the natural law view, all of society has the same envisioned aspect of “good” and a shared view of justice. Natural law is not made by human beings, instead it is the reflection of the interaction between divine law and eternal law in the sense that it is always the same for all human beings at all times. It originated with the Greeks who wanted to create a system where people obeyed the law out of respect and recognition that it was morally correct, there creating a belief that it was their moral duty to obey it. The underlying belief in Natural law is that if a law is unjust, then it is no law at all. Negative Liberty: The liberty that allows the freedom from coercion or interference with individuals and their private actions by others. This means that negative liberty allows people to be freed from specific hardships. This however, doesn’t mean that they’re free to do anything about it. Negative liberty came around to supplement Mill’s understanding of freedom because it was seen that the individual could contract and extinguish his wishes. Since this had the potential of holding the individual back negative liberty was seen as a tool in order to claim them as “free and satisfied”. At the same time since others can manipulate negative liberty to make people seem free it’s not the most desired freedom. Neutrality: This is the belief that legal principles and laws are not based on any particular group’s conception of “moral” or good”. This means that neutrality is an intention and hope of the law. The law must be neutral in the sense that it is based on no one group’s specific beliefs but instead encompasses the beliefs and values of all groups. Therefore, if the law will be neutral it will result in being fair and equal. Neutrality in its nature works as a concept that defies the belief that law is based off of culture, thus goes directly against beliefs like eurocentrism. Normative Jurisprudence: This is the legal theory that judges must look at the intention behind the laws based on the norms of society. This particular form of jurisprudence involves the judges looking at the law through their own experience determining what the law ought to be instead of what it is written as. This form of jurisprudence is used for when the written law “runs out” in specific cases. Under these circumstances the judges must use their own discretion and step outside the written law in order to determine what the law was intended for or what it “ought to be”. Perspectivism: Positive Liberty: This is the liberty that allows you permission to perform specific actions. Through this liberty individuals in society would be able to perform to the maximum of their own potential. This is a social liberal notion because it allows for a positive space for government. This means that by providing individuals with this freedom it lets authorities govern them by creating spaces for them to perform their freedoms, thus letting them achieve their full potential. Governments need to create these conditions to allow the individuals to achieve those goals. Therefore, the positive liberty claims that individuals have a right to pursue their own dreams and decide what their goals are. Positive Policymaking: This refers to the legal theory that sanctions are intended for specific purposes and goals in which society tries to prevent individuals from doing harm or being immoral, and thus uses policymaking as a method of controlling the relationship between the individuals or groups. Positive policymaking occurs when the policies introduced cause both negative sanctions (punishments) as well as positive rewards. This means that positive policies can both prohibit and punish people for committing certain actions, but at the same time reward those who abide by those laws. For example, traffic laws can be considered positive policies because they punish those who break them through tickets or removal of license, however they also reward those who obey them by allowing them the opportunity of using motor vehicles. In this case, rewards and incentives are used to encourage positive behaviour of citizens. Proletariat: This refers to the members of the working class in society. Marx referred to proletariats as underpaid, over-used workers who were used and forced to work for minimum labour by the upper class. The whole idea of there being a “proletariat” refers to the class struggle concept that suggests that there will always be one dominant class using the other. The proletariats are always the abused class and due to the bourgeois’ economic power and influence, the proletariats remain in that specific class. In his Manifesto, Marx refers to the proletariat being a revolutionary class that must organize together in order to change their economic- societal standpoint. Due to this standpoint, the proletariats are seen as the oppressed class who are governed by the law that works against them. Proscriptive Policymaking: This refers to the legal theory that sanctions are intended for specific purposes and goals in which society tries to prevent individuals from doing harm or being immoral, and thus uses policymaking as a method of controlling the relationship between the individuals or groups. Proscriptive policies are those that specifically function to bring forth negative sanctions. This means that proscriptive policies are rules and laws that don’t reward but instead are reinforced and threatened by punishment. In these instances the law works toward the promotion of deterrence, punishment and revenge. In this case punishments are used to threaten people into obeying the law and having orderly behaviour. Repressive Sanctions: This is a form of punishment that is used to strengthen social solidarity. The repressive sanctions consist of those sanctions that hold back or punish people’s actions by creating suffering or some disadvantage. The purpose of these sanctions is to hurt the individual through hurting their fortune, honour or liberty. Punishment in this regard is seen as vengeance in the sense that if you do something bad to the state or its people, the state and its people will do something bad to you. Sometimes repressive sanctions are made as deterrence in the sense that by punishing someone you are making a public example out of them in front of everyone else. This allows society to label the desired actions and remove the undesired ones. Restitory Sanctions: This is a form of punishment that is used to strengthen social solidarity. This form of sanctions doesn’t look to specifically punish the individual but instead it focuses on restoring the equilibrium and creating stability in society. This sanction works on the notion that if crime is seen as a breaking of society, then it must create a sanction that will restore and fix it. Restitory sanctions can be done through many ways such as public service, direct help, or paying dues to individuals or the state. Rule of Law: The rule is that governments should be bound by known principles of law without distinction in their application to particular individuals or groups. This means that rules and laws must applies to all groups of people equally. This theory also suggests that legal reasoning should be sharply distinguished from moral and political deliberation and choice. This means that the law needs to be fair, impartial towards race, gender, sexuality and it must be moral and political in deliberating its argument. This can be achieved by applying rules to a specific context by considering the moral values of how a decision is going to affect others and us. In order for the rule of law to be legitimate it has to be standardized, eternal and without partiality to specific contexts. Rule of Law (liberalism): This refers to the political liberalism that suggested that human society should be organized in accordance with certain unchangeable, individual, and inviolable rights to life, liberty and property. It opposed absolute monarchism in order for free individuals to form a stable society through self- government. This government would be accorded the power to make, execute and apply laws for the public good. It is also the responsibility to one another to create a society that will allow the freedom and fulfillment of individuals. There are three influential works of the rule of law and those are Locke’s second treatise, Montesquieu’s spirit of laws and the Federalist papers. Locke suggests that the rule of law must reflect reason and natural law for moral order. He believes that there must be a relationship between morality and law in order for “good law” to come out. Through morality and law society will be free to achieve its own vision of good. Montesquieu suggests that the rule of law should abide to what the law permits as well obeying the judiciary. The judiciary is invested as a whole to preserve the rule of law and is ensured a complementary connection between culture and law. The Federalist Papers represent a more modern rule of law. It is a cluster of principles, practices, and institutional arrangements whose purpose is to constraint exercise of governmental power, serve certain broad social goals, and protect individual liberty, democracy, equality and effective rule. Rule of law is meant to find an effective social contrast in which the community is able to govern itself. Social Facts: This refers to the ways of acting, thinking and feeling eternal to the individual and the endowed power of coercion used to control him. These facts can be common sense in regards to what is told to us (manners). They orient our actions accordingly making us uphold them. Certain structures in society are so powerful that they control the actions of individuals. These structures can be studied subjectively as a part of natural science. Social facts can be characterized by their ability to resist change. They have a coercive quality and their violation is met with some type of sanction or resistance. If enough people believe in social facts they by nature become true. Standing: Standing in definition is the term used when referring to a party’s (plaintiff’s) ability to demonstrate to the court the sufficient connection between their legal issue and how it harms their rights as a member of society. This is the belief that suggests only persons with a specific legal issue or evidence are allowed to bring a dispute to court. This goes to say that the plaintiff must have a genuine interest in the matter that they present to courts. The plaintiff must also demonstrate to the court a sufficient connection to the issue and how that issue can bring about harm. A standing would be considered a form of dispute settlement in the sense that a person’s belief or standing would create a dispute necessary to be brought to court for settlement. For example, a standing could be considered something like the belief that all children should be able to be excused from religious teachings at school. This is a belief that has some level of harm to citizens and it reflects how the plaintiff in the matter would most likely have a genuine interest in solving the problem. Substantive Equality Standing: This is a form of equality during classical legal thought that goes to suggest that equality must have some sort of meaning behind it. It was a belief that unless you substantiate equal
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