(The way we use) law is unjust!

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Pattern-chaser
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(The way we use) law is unjust!

Post by Pattern-chaser » May 23rd, 2020, 7:11 am

This topic does not concern the so-called ‘laws’ of Nature, which are descriptive, not prescriptive (binding). It concerns our legal systems.

We all know of trials where a jury have found an obviously-guilty party not-guilty. This is presumably because they do not consider the penalty (for guilt) that the law prescribes to be just. Sometimes the facts of a particular case do not fit the provisions and intentions of the law as it is written. And why would it?

How could we think that a law, drafted in advance, could possibly account for all circumstances in which that law might be applied? It’s arrogant and conceited to think that we could do so, isn’t it? And yet we use and apply law according to the ‘letter of the law’, and we punish offenders accordingly. So, in practice, we often apply the law unjustly … because it’s the law. Why do we do this?

In our courts and legal systems, the law should be used as a guide to applying justice. For we need laws, in practice, even though perhaps we shouldn’t. But we need those laws to provide justice, not merely compliance with those laws. Courts should be free to find that a killer (for example) did as any reasonable person would have done, and free them without penalty. Courts should be free to find that a ‘minor’ offender is due a much tougher punishment than the law recommends. Context is all, in this as in many other matters too. If courts are free to dispense justice and fairness, this is what we want from our legal systems, no?

I think we should draft laws to contain our intent, and they should be applied to achieve that intent - the intent of our law-makers when they made and wrote down a law. We shouldn't try to account for every detail, which is not possible, in practice (as empirical observation of our legal systems, and the way they work, confirms). We should just offer the intent, and allow our courts to apply it with justice and fairness.

Such actions would move us away from trying to offer a fixed and unambiguous law that can be applied by remote control, where courts are merely functionaries that apply the letter of the law, as it is written. Instead, we would acknowledge that no law, however well-intentioned, can offer all of the details necessary to apply it in all circumstances. So we would express our intent, and empower our courts to apply this intent, so as to dispense justice. We would have to rely on our courts, judges and juries to do the right (i.e. just) thing.

What is wrong with this simple analysis? There must be something wrong, or we would do as I recommend, wouldn’t we? What have I missed?
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Re: (The way we use) law is unjust!

Post by Ecurb » May 23rd, 2020, 7:23 pm

"There is none righteous, no not one," Paul wrote to the Romans.

Your idea has been used for centuries untold, Pattern-chaser. Hammurabi may have written down some laws, but in many (if not most) human societies, the rule of law is unwritten, dictated by the community or by the ruler. The Sultan, who was head of both church and state, had the final word in Muslim society; the king in Christian.

By chance, I recently finished Charles Dickens' "Bleak House". The plot hinges on a case that has dragged on for decades in the Chancery Courts in London: Jarndyce vs. Jarndyce. The Chancery courts relied neither on written law nor on common law (I knew nothing about this until reading an introductory note in my Norton's Critical Edition of the novel explaining the system). These courts were equivalent to Civil Courts in today's U.S. Thy decided disputed wills, legacies, mortgages, etc. using the principle of "equity". Indeed, one idea behind these courts was to compensate for the rigidity of the Law.

Unfortunately, the Chancery developed rigidity of its own. Obtaining a decision became slow and expensive. In Jarndyce v. Jarndyce (one of the most famous court cases in English literature, set in the mid 19th century) when the disputed will is finally adjudicated, all the money has been spent on court fees and lawyers stipends. The distinction between Law and Equity can be seen in "The Merchant of Venice", where Portia pleads based on Equity, and Shylock based on the Law.

So your theory sounds good, Pattern, but it (perhaps more than the law) is subject to human frailty, corruption, and faulty judgement. If the law is too rigid, Equity is too nebulous, hence the delays that ate away the Jarndyce legacy. In the case of criminal cases adjudicated by Sultans, Kings, and Big Men, prejudice, bigotry, classism and racism are all less easily identified and abolished than they would be under the rule of Law.

Unfortunately, here in the U.S. our admiration for the Law has become disastrous. Mandatory sentencing, which prevents Judges from practicing either mercy or common sense, has filled our prisons. The first step toward implementing your proposal would be to eliminate most mandatory sentencing laws.

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Re: (The way we use) law is unjust!

Post by evolution » May 24th, 2020, 1:10 am

Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
This topic does not concern the so-called ‘laws’ of Nature, which are descriptive, not prescriptive (binding). It concerns our legal systems.

We all know of trials where a jury have found an obviously-guilty party not-guilty. This is presumably because they do not consider the penalty (for guilt) that the law prescribes to be just. Sometimes the facts of a particular case do not fit the provisions and intentions of the law as it is written. And why would it?

How could we think that a law, drafted in advance, could possibly account for all circumstances in which that law might be applied? It’s arrogant and conceited to think that we could do so, isn’t it? And yet we use and apply law according to the ‘letter of the law’, and we punish offenders accordingly. So, in practice, we often apply the law unjustly … because it’s the law. Why do we do this?

In our courts and legal systems, the law should be used as a guide to applying justice. For we need laws, in practice, even though perhaps we shouldn’t. But we need those laws to provide justice, not merely compliance with those laws. Courts should be free to find that a killer (for example) did as any reasonable person would have done, and free them without penalty. Courts should be free to find that a ‘minor’ offender is due a much tougher punishment than the law recommends. Context is all, in this as in many other matters too. If courts are free to dispense justice and fairness, this is what we want from our legal systems, no?

I think we should draft laws to contain our intent, and they should be applied to achieve that intent - the intent of our law-makers when they made and wrote down a law. We shouldn't try to account for every detail, which is not possible, in practice (as empirical observation of our legal systems, and the way they work, confirms). We should just offer the intent, and allow our courts to apply it with justice and fairness.
But what happens if the judge, and/or jury them self, are not just and fair?

What happens if a judge, for example, hates wife beaters buts likes husband beaters, or vice-versa? Would they really be applying 'justice and fairness' in all situations?

Oh, and by the way, who is 'just' and 'fair' in relation to exactly? A Truly Just and Fair society would not punish anyone. This society would do all it takes to understand why 'what happened' happened, and do all it could to prevent it from ever happening again. But, would not punishing anyone be applying justice and fairness to you, and some others?
Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
Such actions would move us away from trying to offer a fixed and unambiguous law that can be applied by remote control, where courts are merely functionaries that apply the letter of the law, as it is written.
I am not sure where you are from but does not the law there give some discretionary power to the judge?

Do not some of the punishments for crimes, written in law, have a recommended minimum sentence and a recommended maximum sentence with discretion given to the judge anywhere in between? Or, are the punishments there already written and fixed?
Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
Instead, we would acknowledge that no law, however well-intentioned, can offer all of the details necessary to apply it in all circumstances.
But is there any human being that does even think that the law could offer all of the details necessary to apply it in all circumstances?

If there is, then I would be surprised.
Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
So we would express our intent, and empower our courts to apply this intent, so as to dispense justice. We would have to rely on our courts, judges and juries to do the right (i.e. just) thing.
But is this not exactly what happens now, in the country where you are at?
Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
What is wrong with this simple analysis?
Because absolutely every thing is relative to the observer, and not all people see things the same way in the days of when this is being written, so finding what is actually 'just' and 'fair' in those days through laws and judging is as close to impossible as can be.
Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
There must be something wrong, or we would do as I recommend, wouldn’t we?
In some countries there is the balancing act of the governments writing laws with the intent of providing what is just and fair for EVERY one in that country while allowing juries to provide guilt or not, and allowing judges some discretion, under recommendations, as to what punishment is best suited.

From each end of the spectrum where the laws are to rigid and judges have to follow the letter of the law at one end to where the law gives judges all the power to choose, there is a very fine balancing act to keep ALL of the differently seeing people happy.

By the way, while this is what has happened up to the days of when this is being written, this kind of judging, punishing, and ridiculing people for "wrong" doing will never lead to a Truly Just and Fair world.

What I have said above is just what has happened and is happening in this world people live in, in the days of when this is written. What I have said above is not just and fair at all. This is just what happens as this is the only way human beings know how to operate, in the days when this is written.
Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
What have I missed?

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Re: (The way we use) law is unjust!

Post by Marvin_Edwards » May 24th, 2020, 8:07 am

The "three-strikes" law was passed to deal with repeat offenders. It was found that a small segment of criminals was responsible for a disproportionate amount of serious crimes. They would be sent to prison for a few years, compare notes with each other, and be released when their time was up, re-enter their criminal enterprise, and continue to cause extreme harm and hardship to others in the community. This cycle would keep repeating.

So, citizens became fed up with it. They said that when a person committed a third felony, they would receive a life sentence, "three strikes and you're out, for good".

This tied the hands of judges, requiring a life sentence on the third felony, whether the judge thought it appropriate or not. Some felonies were non-violent, involving selling drugs.

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Re: (The way we use) law is unjust!

Post by Marvin_Edwards » May 24th, 2020, 8:17 am

evolution wrote:
May 24th, 2020, 1:10 am
... A Truly Just and Fair society would not punish anyone. This society would do all it takes to understand why 'what happened' happened, and do all it could to prevent it from ever happening again. But, would not punishing anyone be applying justice and fairness to you, and some others?
You are right to advocate changes in society that would eliminate the incentives for people to commit crimes, like racism, poverty, drug addiction, poor schools, inadequate after school recreation, unemployment, etc.

But, while current conditions exist, we must still deal with the problem of correcting the individual offender. Changing the offender's behavior is difficult because their behavior has been rewarding to them up to the point where they are caught. Punishment of some sort may be required to motivate them to want to change their behavior.

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Re: (The way we use) law is unjust!

Post by Terrapin Station » May 24th, 2020, 10:41 am

The standards of "proof" need to be even more stringent than they are. We can't convict people just because we feel that they're guilty. We need to have solid evidence that they are. (And the evidence should never consist solely of testimony--hence why on my view the standards of "proof" need to be more stringent than they are.)

If we just go with whatever we feel on particular cases, that's basically a recipe that the system won't be fair, because people who aren't so likeable for various reasons, which can include all sorts of prejudices, will be convicted much more easily.

The system is set up (ideally) to err on the side of letting some guilty people go free rather than convicting some innocent people, which is a good thing.

I'm also in favor of not having anything like the current norms for prisons, but that's another topic.

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Re: (The way we use) law is unjust!

Post by Sculptor1 » May 24th, 2020, 11:56 am

Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
This topic does not concern the so-called ‘laws’ of Nature, which are descriptive, not prescriptive (binding). It concerns our legal systems.

We all know of trials where a jury have found an obviously-guilty party not-guilty. This is presumably because they do not consider the penalty (for guilt) that the law prescribes to be just. Sometimes the facts of a particular case do not fit the provisions and intentions of the law as it is written. And why would it?

How could we think that a law, drafted in advance, could possibly account for all circumstances in which that law might be applied? It’s arrogant and conceited to think that we could do so, isn’t it? And yet we use and apply law according to the ‘letter of the law’, and we punish offenders accordingly. So, in practice, we often apply the law unjustly … because it’s the law. Why do we do this?

In our courts and legal systems, the law should be used as a guide to applying justice. For we need laws, in practice, even though perhaps we shouldn’t. But we need those laws to provide justice, not merely compliance with those laws. Courts should be free to find that a killer (for example) did as any reasonable person would have done, and free them without penalty. Courts should be free to find that a ‘minor’ offender is due a much tougher punishment than the law recommends. Context is all, in this as in many other matters too. If courts are free to dispense justice and fairness, this is what we want from our legal systems, no?

I think we should draft laws to contain our intent, and they should be applied to achieve that intent - the intent of our law-makers when they made and wrote down a law. We shouldn't try to account for every detail, which is not possible, in practice (as empirical observation of our legal systems, and the way they work, confirms). We should just offer the intent, and allow our courts to apply it with justice and fairness.

Such actions would move us away from trying to offer a fixed and unambiguous law that can be applied by remote control, where courts are merely functionaries that apply the letter of the law, as it is written. Instead, we would acknowledge that no law, however well-intentioned, can offer all of the details necessary to apply it in all circumstances. So we would express our intent, and empower our courts to apply this intent, so as to dispense justice. We would have to rely on our courts, judges and juries to do the right (i.e. just) thing.

What is wrong with this simple analysis? There must be something wrong, or we would do as I recommend, wouldn’t we? What have I missed?
There is a certain amount of mitigation that can be brought to bear upon sentencing.
That is why each crime has a recommended range of sentence recommendations, and such sentences can be suspended in the right circumstances.
This is vital for a veneer of justice to occur.
For example person A grows pot, and has 5 oz stored in his fridge. He has just recovered from cancer and uses it because his treatment has left him in pain and stress.
Person B has exactly the same amount, yet it is stored in small bags of about £10 value each. THe prosecution claim that this slows an intent to sell.
A argues, that the pot provides him with a rest from prescription pain killers which have proven side effects for himself. He agrees to stop growing.
B argues that the pot is only for personal use, and bagging it in small amounts, he argues, restricts his usage as he portions himself only one bag per week.

Result A is given a one year sentence, but suspended on the promise of no further use of pot.
Result B is given a one year custodial sentence.

Judgement is partial. A could be the dealer ,and B could be personal use.

The difficulty with such discretion is that judges are human, but sadly only taken from a very small section of society; Being mostly upper middle class white and usually men.

One has to ask how the dynamics of judgement work when the examples above were black or poor.

On the other extreme you have the horror of fixed sentences, and such travesties as "3 strikes and you're out". Worse still is the hideous reliance the US, (particulary) system has on the plea bargaining system. In order that police departments can clean up the books, they can get suspect to cop for a long list of crimes in exchange for a light deal with the judge.

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Re: (The way we use) law is unjust!

Post by evolution » May 25th, 2020, 9:59 pm

Marvin_Edwards wrote:
May 24th, 2020, 8:17 am
evolution wrote:
May 24th, 2020, 1:10 am
... A Truly Just and Fair society would not punish anyone. This society would do all it takes to understand why 'what happened' happened, and do all it could to prevent it from ever happening again. But, would not punishing anyone be applying justice and fairness to you, and some others?
You are right to advocate changes in society that would eliminate the incentives for people to commit crimes, like racism, poverty, drug addiction, poor schools, inadequate after school recreation, unemployment, etc.

But, while current conditions exist,
And while judgement, punishment, and ridicule exists, then the current conditions will remain existing also.

What is more successful 'prevention' or 'the cure'?

When what causes people to do wrong/commit crimes, then 'that' can be prevented. When what causes wrong/crime is prevented, then there is no wrong/crime, and the current conditions will change. Until then the current conditions will remain relatively the same.
Marvin_Edwards wrote:
May 24th, 2020, 8:17 am
we must still deal with the problem of correcting the individual offender.
I found discovering what caused the individual offending, in the beginning, and found just preventing that from ever occurring at the start to be no problem at all. Therefore, there is no so called "problem" to correct from the outset.

When the cause of a "problem" never comes to exist, then neither will a problem itself.
Marvin_Edwards wrote:
May 24th, 2020, 8:17 am
Changing the offender's behavior is difficult,
Not when you know what the offender's behavior is and WHY they are doing it?

Do you know what your offending behavior is, and WHY you are doing it?
Marvin_Edwards wrote:
May 24th, 2020, 8:17 am
because their behavior has been rewarding to them up to the point where they are caught.
This may be very well true, but what have they/you been missing out on that you/them are seeking some sort of so called "reward"?

When this is found out then it helps in part to getting what you/them want/need, which in turn prevents you/them from turning to offending behavior.
Marvin_Edwards wrote:
May 24th, 2020, 8:17 am
Punishment of some sort may be required to motivate them to want to change their behavior.
Well punishment has not worked for over thousands of years now, so I think the results of that study are pretty conclusive by now.

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Re: (The way we use) law is unjust!

Post by evolution » May 25th, 2020, 10:20 pm

Terrapin Station wrote:
May 24th, 2020, 10:41 am
The standards of "proof" need to be even more stringent than they are. We can't convict people just because we feel that they're guilty.
We "can't", or, We do but it would be better if we did not?
Terrapin Station wrote:
May 24th, 2020, 10:41 am
We need to have solid evidence that they are. (And the evidence should never consist solely of testimony--hence why on my view the standards of "proof" need to be more stringent than they are.)

If we just go with whatever we feel on particular cases, that's basically a recipe that the system won't be fair, because people who aren't so likeable for various reasons, which can include all sorts of prejudices, will be convicted much more easily.
If people did not make assumptions, then there would not be any prejudices at all. So, if there were no assumptions, nor prejudices, then the so called "system" would be much fairer, at least.
Terrapin Station wrote:
May 24th, 2020, 10:41 am
The system is set up (ideally) to err on the side of letting some guilty people go free rather than convicting some innocent people, which is a good thing.
Is that how the system is made in the country or place that you are in? Is that system really fair. Some people would say that that system is not good at all.
Terrapin Station wrote:
May 24th, 2020, 10:41 am
I'm also in favor of not having anything like the current norms for prisons, but that's another topic.

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Re: (The way we use) law is unjust!

Post by Terrapin Station » May 26th, 2020, 5:26 am

evolution wrote:
May 25th, 2020, 10:20 pm
Terrapin Station wrote:
May 24th, 2020, 10:41 am
The standards of "proof" need to be even more stringent than they are. We can't convict people just because we feel that they're guilty.
We "can't", or, We do but it would be better if we did not?
English--how does it work?

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Re: (The way we use) law is unjust!

Post by Marvin_Edwards » May 26th, 2020, 6:29 am

evolution wrote:
May 25th, 2020, 9:59 pm
I found discovering what caused the individual offending, in the beginning, and found just preventing that from ever occurring at the start to be no problem at all. Therefore, there is no so called "problem" to correct from the outset.
So, what did you discover to be the cause and what did you do to prevent it from ever occurring at the start?

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Re: (The way we use) law is unjust!

Post by Pattern-chaser » May 26th, 2020, 7:08 am

Ecurb wrote:
May 23rd, 2020, 7:23 pm
Your idea has been used for centuries untold, Pattern-chaser. Hammurabi may have written down some laws, but in many (if not most) human societies, the rule of law is unwritten, dictated by the community or by the ruler. The Sultan, who was head of both church and state, had the final word in Muslim society; the king in Christian.
Yes, but did the rulers rule according to the principles of justice and fairness? I suspect not.

Ecurb wrote:
May 23rd, 2020, 7:23 pm
So your theory sounds good, Pattern-chaser, but it (perhaps more than the law) is subject to human frailty, corruption, and faulty judgement. If the law is too rigid, Equity is too nebulous, hence the delays that ate away the Jarndyce legacy. In the case of criminal cases adjudicated by Sultans, Kings, and Big Men, prejudice, bigotry, classism and racism are all less easily identified and abolished than they would be under the rule of Law.
Indeed. But our current court systems, adjusted only to take away the requirement to implement the letter of the law, but retaining public scrutiny, might avoid the worst excesses you describe, don't you think? Of course, no system is perfect, but wouldn't it be better (if not ideal) than what we currently have?

Ecurb wrote:
May 23rd, 2020, 7:23 pm
Unfortunately, here in the U.S. our admiration for the Law has become disastrous. Mandatory sentencing, which prevents Judges from practicing either mercy or common sense, has filled our prisons.
Yes, this is what I'm complaining about. Law trashing justice.

Ecurb wrote:
May 23rd, 2020, 7:23 pm
The first step toward implementing your proposal would be to eliminate most mandatory sentencing laws.
Definitely. And, if we did, would the overall results be better or worse than what we have? Better, I think.
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Re: (The way we use) law is unjust!

Post by Pattern-chaser » May 26th, 2020, 7:23 am

evolution wrote:
May 24th, 2020, 1:10 am
But what happens if the judge, and/or jury them self, are not just and fair? What happens if a judge, for example, hates wife beaters buts likes husband beaters, or vice-versa? Would they really be applying 'justice and fairness' in all situations?
The public scrutiny of our court system, currently in place, would/could allow us to maintain those principles of fairness and justice. It wouldn't be perfect, but wouldn't it be better than what we currently do?

evolution wrote:
May 24th, 2020, 1:10 am
Oh, and by the way, who is 'just' and 'fair' in relation to exactly? A Truly Just and Fair society would not punish anyone. This society would do all it takes to understand why 'what happened' happened, and do all it could to prevent it from ever happening again. But, would not punishing anyone be applying justice and fairness to you, and some others?
Surely when a matter is presented to a court for judgement, the court is required to deliver a verdict that is fair and just to all? Not just to the accused, but to the victim, to other affected citizens, and to society at large. Not punishing anyone would not deliver justice to the population at large, would it? Justice is not soft-hearted, but even-handed.

evolution wrote:
May 24th, 2020, 1:10 am
Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
Such actions would move us away from trying to offer a fixed and unambiguous law that can be applied by remote control, where courts are merely functionaries that apply the letter of the law, as it is written.
I am not sure where you are from but does not the law there give some discretionary power to the judge?

Do not some of the punishments for crimes, written in law, have a recommended minimum sentence and a recommended maximum sentence with discretion given to the judge anywhere in between? Or, are the punishments there already written and fixed?
There is some discretion, of course, but even this does not transform our written-in-advance laws into a system which is fair to all, in all circumstances. In our current system, the only point where the law can be applied justly according to the facts of each particular case is during the court hearing(s). No law can account for all the circumstances under which it might be applied.

evolution wrote:
May 24th, 2020, 1:10 am
Pattern-chaser wrote:
May 23rd, 2020, 7:11 am
So we would express our intent, and empower our courts to apply this intent, so as to dispense justice. We would have to rely on our courts, judges and juries to do the right (i.e. just) thing.
But is this not exactly what happens now, in the country where you are at?
Sometimes, yes. But not always. The laws, as expressed, do not allow it. The laws, as expressed, prevent justice, in certain cases.
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Re: (The way we use) law is unjust!

Post by Pattern-chaser » May 26th, 2020, 7:28 am

Terrapin Station wrote:
May 24th, 2020, 10:41 am
The standards of "proof" need to be even more stringent than they are. We can't convict people just because we feel that they're guilty.
Actually, we can, and do, just that. We humans create, implement and enforce laws that we require each other to follow. Collectively, we decide what is permissible and what is not, and we make our laws accordingly. So we certainly can "convict people just because we feel that they're guilty". The question is whether we should? 🤔
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Re: (The way we use) law is unjust!

Post by Terrapin Station » May 26th, 2020, 8:49 am

Pattern-chaser wrote:
May 26th, 2020, 7:28 am
Terrapin Station wrote:
May 24th, 2020, 10:41 am
The standards of "proof" need to be even more stringent than they are. We can't convict people just because we feel that they're guilty.
Actually, we can, and do, just that. We humans create, implement and enforce laws that we require each other to follow. Collectively, we decide what is permissible and what is not, and we make our laws accordingly. So we certainly can "convict people just because we feel that they're guilty". The question is whether we should? 🤔
Did you think that I was saying it was physically or practically impossible?

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