Law is not magic, and prohibitions are not spells

9th June 2026

Again, politicians think that “banning” something is an end to a problem.

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This is a topic this blog has addressed before, but the issue never goes away and so the same old points bear repeating.

Law is not magic.

Prohibitions are not spells.

When you make a law against a thing, that thing may not instantly vanish.

It is not as if one points a wand and says something in cod-Latin, and the unwanted thing is thereby extinguished.

The unwanted thing may instead continue, it is just that further instances of that unwanted thing may be attended with different legal and practical consequences.

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Of course, there should be certain prohibitions.

But it is naïve – indeed magical – thinking to believe that just because, say, murder is prohibited there will be no more murders.

What the prohibition means is that any further murder can be followed by onerous consequences that would not be present if there was not a prohibition.

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Sometimes perhaps the prohibition may deter people doing the unwanted thing.

At other times, people will still do the unwanted thing, but in a way which means they will not be detected.

Or people will still do the unwanted thing if people believe the prohibition will not be seriously enforced – or if they believe the prohibition cannot be enforced.

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A prohibition in and by itself is not a policy. It may be part of a (wider) policy, alongside the allocation of resources, administrative priority, guidance and “soft” law, publicity, and political leadership.

But to make a law against something is often just as effective as casting a spell against something.

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The prompt for this post is the government of the United Kingdom threatening to do something-or-other if the internet companies do not do something-or-other.

Apparently, according to politicians, it is possible to ban social media use for under sixteen year olds.

The politicians will enact a prohibition [and cod-Latin and a merry wave of the legislative wand], the unwanted behaviour will disappear.

But it would seem things are a little more complicated than that.

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One curse of the modern age (and no doubt of earlier ages, but in a different way) is the belief that there are (instant) solutions to social and political problems.

And because of notions of parliamentary sovereignty, politicians in the United Kingdom believe that just because it is relatively easy for legislation to be passed, then more legislation is the solution to any social or political problem.

Members of Parliament cannot do much, but they can pass laws, and so they come to believe that passing laws is the only thing to do.

But public policy is hard.

Public policy is about effecting wanted outcomes which would not occur, but for the public policy. If things would happen anyway, then there is not much of a policy.

Laws are an important, if not crucial part, of much of public policy. Not just prohibitions, but the creation of discretions and obligations, and of rights. Laws can create legal personality or deem certain states of affairs.

But rarely, if at all, is any law the entirety of a public policy.

And so if politicians genuinely want to get rid – or reduce – an unwanted to thing, they have to do more than impose a prohibition.

Magical thinking is the negation of effective public policy.

For law is not magic, and prohibitions are not spells.

Magical thinking is the negation of effective public policy.

For law is not magic, and prohibitions are not spells.

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The Rwanda relocation scheme ends in a mess

8th June 2026

A lucky arbitration win for the UK brings the programme to its conclusion

There was recently an international arbitration award: a lucky arbitration award.

Front page of arbitration award.

 

The lucky winner was the United Kingdom, the unlucky loser was Rwanda.

The dispute was about that relocation scheme for asylum seekers which the then-government of the United Kingdom sought to put in place before it was defeated at the last general election.

Over at Prospect (click here) I have done a piece on that scheme and how this arbitration ward finally brings the scheme to an end.

That piece emphasises the costs: in essence, it cost about £250,000,000 to send just four asylum seekers to Rwanda, and they went voluntarily.

The overall amount would have been even more, had it not been for the lucky arbitration victory in respect of unpaid fees under the agreement.

The point that can be added in this post is that the very fact this even went to arbitration is a bad sign.

The negotiations which brought the scheme to an end were, in a word, messy.

Flurries of diplomatic notes and correspondence – a bit similar to the classic “battle of the forms”.

There was no clear and shared understanding set out in a discrete document.

And one can see why Rwanda felt it had an arguable case for payment.

Adopting a wince like the eminent jurist Alan Hansen, the lawyering was atrocious.

The financial position should not have been left so uncertain that the dispute had to go to arbitration. The paperwork should have been so precise that neither side had any doubt as to the legal position.

Reading the narrative in the judgments of the exchanges one could imagine the result going the other way. The United Kingdom was lucky.

And it was fitting that the scheme ended in a mess – for it was always a mess. It was always inherent and misconceived and unpleasant to contemplate.

The Trump slush fund appears to have been aborted – but the real problem about the ‘settlement’ remains

3rd June 2026

The root cause of this outrage is not addressed by this pruning

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The proposal for a ‘anti-weaponisation’ fund seems to have been dumped.

The acting Attorney General of the United States said at Congressional meeting yesterday that:

“We are not moving forward with the fund.”

Nor indeed moving in any direction with the fund.

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But the fund was a consequence of a more fundamental abuse of power which is still in place, and until that is hacked out there will be other problems.

As set out in previous posts, a contrived and inflated legal case was brought by Trump (and his son and his company) against the United States government, which was then purportedly ‘settled’ between the parties, though without court approval or even recognition.

The settlement – that is a contract – was then used as a legal basis to create rights and obligations of an extraordinary nature.

To allude to the eminent jurist Meat Loaf, one can do many things with settlement agreements, but one cannot do that.

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One provision of the supposed ‘settlement’ was the creation of the ‘anti-weaponisation’ slush fund to benefit various supporters of Trump. This audacious move now appears to have been aborted.

But other extraordinary provisions with a basis on what only a private contract are still in place.

This is an addendum to the supposed agreement:

This is a wide immunity for the plaintiffs – and others! – from more-or-less any action the United States treasury or revenue service could take against them. If the provision had effect, it would fetter the tax authorities, preventing them from doing a whole range of actions.

Such an immunity should, if it exists at all, have a solid legal basis – and should be approved or overseen by Congress.

But to base such an immunity on the shaky-flimsy basis of a private contract without any court recognition is, well, inappropriate.

One suspect that one purpose of the litigation was to get in place a ‘settlement’ agreement, where the opportunity would be taken to place wide-ranging obligations and restrictions on the tax authorities.

As reported in yesterday’s post the court has re-opened that litigation. If the litigation is now stuck out then there will not even be nominally a dispute, and without a supposed dispute there cannot be a settlement.

That would mean the above immunities would go too – to the extent they even exist at law.

So a lot still rides on what the court does with this re-opened case.

The slush fund seems to have gone, but will the rest of the ‘settlement’ go too?

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How a new court Order means Trump’s slush fund is now in peril

2nd June 2026

The judge has re-opened the supposed ‘settled’ case

In a significant development the court has now re-opened the litigation which had ended in the supposed ‘settlement’ of a slush fund for President Trump’s political supporters.

You may recall that this blog has previously covered this extraordinary case.

The story so far in essence:

– Trump (and his son and company) brought a largely contrived case against his own government for inflated damages of $10 billion;

– the court rightly doubted that this was an actual dispute between the parties, and so required further submissions on jurisdiction;

– just before the deadline for those submissions, Trump and his co-plaintiffs pulled their claim, leading the court to formally end the case;

– there was then a supposed “settlement” between the parties but without any court recognition which purported to set up a $1.776 billion slush fund and also to grant legal immunity for Trump and others;

– but this ‘settlement’ has been challenged by former Capitol police and also by a group of former federal judges.

Well, the action brought by the group of former federal judges has actually gained some traction.

The judge has now re-opened the case.

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Here is the online docket, and sometimes dockets are a form of poetry.

Online docket showing the case closing and reopening.

You can see on 18 May 2026 the case was closed, and then on 27-29 there was an application and then an Order to re-open the case.

You may recall from an earlier post that the former judges are attacking the ‘settlement’ from the perspective that there was an abuse of process in pulling the case and then purporting to settle it.

The judge now has re-opened the case, and she is now asking for even more submissions from the parties.

re-openedOrder asking for even more submissions from the parties

This places the parties in a far worse position than they were on the eve of the case being pulled. And here there seems to be no way out for the parties by trying to pull and ‘settle’ the case again. They have to come up with the submissions, else presumably the the case will be struck out.

You will see that those challenging the ‘settlement’ can, in turn, make submissions in reply.

This is a huge set-back for the parties setting up this slush-fund on the back of a ‘settlement’. If the case is struck out, there is nothing to settle, and so there cannot be any kind of ‘settlement’.

The rug is being pulled.

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There is so, so much wrong with this case, from every angle. It is like an implausible exam question for law students. This is not what litigation is for and this is not what settlements are for.

But at least now there is a chance for the court to self-correct the excesses of the parties, for if the case is struck out there cannot be a ‘settlement’ – either recognised by the court or otherwise.

Let’s keep watching.

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Marilyn Monroe, the Hollywood studio system, and the law of contract

The two interesting legal challenges to the Trump legal “settlement” slush fund

28th May 2026

How two cases show how a problem can be attacked in two different ways

This blog has previously covered the extraordinary legal suit brought by Donald Trump against his own government and then the extraordinary supposed “settlement” of that law suit.

That “settlement” purported to use a private agreement (not placed before a court) to establish a high-value fund to benefit political allies of the president – including the insurrectionists who attacked the Capitol.

It looked as if the legal side of the case was over, and it was now a matter for politics.

But the legal side is not over.

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There are (at least) two legal challenges to what has happened, from different perspectives. Both are legally interesting, as they attack the problem from different legal angles.

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One challenge is from two police officers who were at the Capitol during the attempted insurrection.

You can read their challenge here.

The police Plaintiffs are applying for orders and other court relief to quash the establishment of the fund – primarily on the basis that the federal government does not have the legal authority to do what it is purporting to do.

List of the Orders and other relief applied for by the plaintiffs.

This appears to be essentially a public law action against the federal government. It is exactly the right sort of case to bring against public bodies exceeding their powers.

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The other case is far more legally ambitious and imaginative, and it has been brought by a posse of retired federal judges, who are “Movants” (lovely legal word) of a motion for the court itself to re-open the case.

A description of the Movants' case.

This is also exactly the right challenge to bring – but in respect of what appears to have been the abuse of process which led to the supposed “settlement”.

If the Movants succeed then the court will re-open the case and continue with its inquiry into whether there was a real dispute.

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Some abuses of the law are straightforward, and when they occur they usually lend themselves to an obvious remedy.

But the more extraordinary the abuse, the more any remedy has to be especially fashioned.

Here the police Plaintiffs and the federal judge Movants have worked out two different ways to approach the instant situation – one by attacking the outputs (the setting up of the fund), the other attacking the inputs (the way the supposed litigation ended).

I am not an American lawyer, and so I do not know if either case has merit and/or will have traction. But both are interesting ways to get the courts to weigh back in an utter outrage that had looked as if it had escaped the courts.

The odd setting up of what appears to be a corrupt slush fund for the allies of President Trump

22nd May 2026

In which a settlement agreement is pushed far beyond any proper legal limits

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Contract law is a fascinating subject: it is about how parties can create legal obligations and rights between themselves which otherwise would not exist.

Constitutional and other forms of public law are, of course also fascinating: for they set out what can and cannot be done by those charged with public power.

And when contract law and constitutional law mix, then the results are even more fascinating.

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The legal suit brought by President Trump (and his son and his corporation) against his own government is extraordinary for many reasons.

In particular two things stand out.

First, there does not seem to be a dispute capable of being adjudicated by a court.

Second, there does not seem to have been a settlement in any legally recognisable form.

To adapt a famous techie saying: bizarre in, bizarre out.

In reality the whole exercise is brazen corruption. Everyone knows this, though many do not seem to care. It is the sort of thing that should (but will not) lead to Trump’s immediate impeachment and removal from office.

But, this being a law and policy blog, let us go though the motions of looking at this racket from a legal perspective. If anything, it will show what an odd thing is going on.

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As this blog has already set out (as well as at this Prospect piece), the law suit was a rum affair.

That is not to say there was not an underlying legal wrong: the leaking of the president’s tax returns (even if in the public interest) was an unlawful act and indeed the leaker has been prosecuted under the criminal law.

And generally (if not universally) speaking where there is a criminal offence there is usually a civil wrong – what lawyers call a tort.

The records of Trump were leaked by a government contractor and so, in principle, there is both blame and a claim.

But on this basis, Trump and his co-plaintiffs constructed a demand for an extortionate amount – far above what would be the level of damages for such a wrong – and brought the claim at a time when Trump was in effect the head of the defendants. Trump thereby would have effective control of both sides of the case.

The plaintiffs, however, encountered a problem. The court was not convinced it could hear a claim where one person controlled both sides. And if there is not an actual dispute between parties in disagreement, then the court would not have jurisdiction to hear the claim.

At this point the judge could have simply stuck out the suit for want of jurisdiction (though that probably would have been appealed). Instead, the judge invited the parties to make submissions on the jurisdiction point – and she also appointed independent lawyers as “friends of the court” to make submissions which the parties may selfishly not wish to make.

The deadline for those submissions was last week. But the plaintiffs did not make submissions. They pulled the case instead. The claim was dropped.

Court order with highlighted text ORDER CLOSING CASE THIS MATTER is before the Court on Plaintiffs’ Notice of Voluntary Dismissal with Prejudice (“Notice”) (DE 52). In the Notice, Plaintiffs state that they are voluntarily dismissing the instant litigation with prejudice

 

We will never now get to know how the court would determine the issue.

And if you looked at the court record – the online docket is publicly available here – that is the end of the story.

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But the story does not end there.

There is a supposed “settlement” – click here.

Title of settlement agreement

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This is not a settlement agreement which the parties put before the court to be endorsed. It is thereby not an agreement that has been recognised by the court, still less are its terms enforceable by the court before which the relevant litigation was brought.

It is instead a private agreement between parties to, among other things, bring the litigation to an end.

Such private side agreements are possible, though the parties lose any benefit of the relevant court recognising and enforcing the terms of the agreement.

The remarkable thing about the supposed settlement agreement is not that it ends the law suit – it is what the agreement purports to do as well.

In essence: a private settlement agreement is being used as a basis for legislating for a lucrative fund for the benefit of third parties and immunity from criminal prosecution for the plaintiffs.

Contracts – including settlement agreements – can be used for many complex and imaginative things, but this goes beyond the extremes for what any contract can properly be used for.

This is instead the sort of stuff that legislation is for, passed by Congress – not a settlement agreement which has not even been placed before a court for endorsement.

The settlement agreement even purports to provide for the tax status of this fund, a fund which is intended to benefit those allies of the president who have been accused of and convicted of crimes against public officials.

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We are in strange times and so nobody can say with any certainty that this slush fund will be held to be unlawful if not unconstitutional.

The scheme should, of course, be quashed on the spot.

The cynical audacity of the proposal, and the means by which it has been contrived, warrant gasps – though not of admiration.

Over at Prospect – click here – this week’s Weekly Constitutional post is about this example of sheer charlatanism.

And that post concludes by saying that if this sort of thing can be imagined by Trump and his cronies, whatever will he and his cronies try to get away with next.

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Must Prime Ministers fail? A constitutionalist perspective

16th May 2026

This was a week when we got to consider the office of Prime Minister, again.

The current occupant has somehow, through a sequence of decisions and non-decisions, made themselves a lame duck – despite a thumping majority two years ago and three years of a parliamentary terms to go. It is quite an impressive under-achievement, given the powers and privileges a Prime Minister has at their disposal.

But for a Prime Minister to be on their way out is, as this blog has stated before, not unusual. Since 1974 every single Prime Minister has come to office or left office between general elections, and recently both. The classic model of a Prime Minister coming and leaving power at a general elections has not happened in over fifty years.

What, however, is becoming distinctive is the speed with which Prime Ministers come and go. Since 2016 the churn has been quite remarkable. The long terms of Thatcher (eleven years) and Blair (ten years) now seem form another age.

Why?

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Alan Beattie of the Financial Times observes:

“If you think the UK changes PMs too often, which of the last 5 departures were mistakes? Cameron shd have stayed after losing the referendum? May after deadlock with her deal? Johnson after Partygate? Truss after meltdown? And Sunak lost an election.”

He makes a good point: circumstances and events explain each of the recent changes which, taken together, appears to be rapid churn, if not turmoil.

And Beattie links to this fine article by Robert Shrimsley which avers:

“Britain is not ungovernable. It has just been very badly governed. In particular, it has endured a decade of woefully inept leadership.”

The problem thereby is not so much with the office, but with its occupants.

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Over at his Substack Sam Freedman offers a view which mixes structural and personal points:

“Why do prime ministers keep failing?

“[One suggested reason] is that we’ve just had a really bad run of leaders who either lacked basic political skills, were temperamentally unsuited for the job, or were Liz Truss.

“[But] there are some deeper structural problems that are undoubtedly making it harder to be prime minister.

“[…] there are some uniquely British challenges with being prime minister that make it harder than necessary. The role has evolved in a typically haphazard way over the decades, without much thought as to its purpose.”

Freedman’s analysis is typically well-informed and insightful.

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My view, which I had already put together before I saw any of the above commentators, is that there is structural gap in our constitutional arrangements where the office of the Prime Minister should be.

Indeed, until the lifetimes of people still alive, the constitutional fiction was that the office of Prime Minister had no legal existence at all.

Other than with a few express statutory powers, the powers (and privileges) of the Prime Minister are still almost entirely to be inferred from the royal prerogative and from being the head of a Commons majority. Prime Ministers can remove ministers (and civil servants) from their jobs and impose whips on backbenchers, and make certain other decisions.

But unless you have an individual of exceptional charisma and/or capacity, coupled with reliable allies in other cabinet jobs and substantial backbench support, a Prime Minister is vulnerable to political downturns.

In this way, despite what pundits sometimes say otherwise, we very much have a parliamentary and not a presidential system.

And so when one faces a sequence of difficult political challenges, as the United Kingdom has had since 2016, the tendency will be for Prime Ministers to fold.

Part of it is as Beattie and Shrimsley point out: the occupants have not been up to the challenges they have faced. But the occupants also have not had firm places to stand.

The job of Prime Minister is, for the reasons detailed by Freedman, becoming more and more difficult to do. There is no particular reason to believe any successor to the current occupant will do any better job. (It is telling that many think the only viable candidate is not one of the already elected members of parliament.)

And so, as I set out, over at Prospect, there is a prime minister-shaped hole in our constitutional arrangements.

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Changing Prime Ministers mid-term and the constitution

12th May 2026

How gaining or losing a Prime Minister between general elections in the norm and not the exception

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There is perhaps a ‘classic’ view – which like many ‘classic’ views is not really true – that a Prime Minister comes in with a general election and then goes out at a General Election.

Like Disraeli and Gladstone did in Victorian days, or Attlee did between 1945 and 1951.

But since 1974 that has not happened.

Every Prime Minister of the United Kingdom since 1974 has either taken office between general elections or lost office between general elections – and recently even both.

Some would say that 1974 is not a sound starting point, as Heath sought to stay on and do a deal after the February election, and we would have to go back to 1970.

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Those who came in between general elections since 1974: Callaghan, Major, Brown, May, Johnson, Truss, Sunak.

Those who left office between general elections since 1974: Wilson, Thatcher, Blair, Cameron, May, Johnson, Truss.

Those who did both: May, Johnson, Truss – though at least May and Johnson fought general elections during their term as Prime Minister.

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Compare and contrast that with parties losing office between elections: that rarely happens, even if we go back a long time.

In 1905 the Conservative and Liberal Unionist coalition lost office to the Liberals, months before a general election. Some of the national and wartime coalitions mid-century shifted between general elections. But straight party swaps are few.

More recently even the loss of an overall majority – in the late 1970s or the early 1990s – merely meant the minority administration staggered on.

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And so we have two cycles: the party cycle and the Prime Minister cycle.

The party cycle generally accords with general elections. Invariably the party in government who lose at a general election is the party which won the one before.

The Prime Minister cycle, however, only incidentally accords with general elections. Since 1974 general elections account for only a portion of the arrivals and departures from office.

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As we seem to be about to change (yet) another Prime Minister between general elections, it is useful to remind ourselves that we (still) have very much a parliamentary rather than presidential system of government.

Even those most presidential of Prime Ministers – Thatcher and Blair – left office mid-term.

Whilst they have office some Prime Ministers can be hubristic – think Johnson or Truss – but they quickly meet with Nemesis.

The body politic regurgitated and spat them out.

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And with Starmer, the surprise would be if he actually did lose office with a general election. If so, he would be the first Labour Prime Minister since Wilson between 1964 and 1970 to win and lose office at general elections.

But it always seems to take us by surprise when a Prime Minister loses office between general elections, as if some norm has been subverted.

The true subversion would be if a Prime Minister who won a general election was able to continue to defeat at a general election.

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The Chagos Islands are an index of British international weakness

6th May 2026

In decision after decision, the United Kingdom simply has to accept the changing will of the United States

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As there are elections over Great Britain tomorrow, this blog goes from the local to the far-away: in particular to the Chagos Islands, otherwise known as the British Indian Ocean Territory.

The Chagos Islands are an index of actual British international influence – because things keep on being decided about them without it mattering what the United Kingdom government itself wants, even though we are the nominal controlling power.

Not long ago there was a deal which suited the United States, who has a military presence on the largest island, where the islands went (back) to Mauritius. The United Kingdom had to go along with it.

And then more recently, as I set out over at Prospect, the United States changed its mind – well, President Trump did. And again, the United Kingdom had to go along with it.

The curious thing is that the islands have an immense symbolic hold on the conservative mind as a surviving remnant of British imperial power, when the reality is the repeated demonstration of just how weak British power and influence now is over its own territory.

And as the relative international power of the United Kingdom continues to decline, we will no doubt have more examples of the contest between symbolism and reality.

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