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Reblogged: Rights Are Inalienable But Forfeitable

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Rights Are Inalienable But Forfeitable:

In my recent Philosophy in Action Webcast discussion of the death penalty, I mentioned Craig Biddle's discussion of the fact that rights are inalienable but forfeitable. As promised, here's footnote 46 of his excellent essay, Ayn Rand's Theory of Rights: The Moral Foundation of a Free Society

... If rights were somehow inherent in man by virtue of his being man, then we could never punish people who violate rights--because using retaliatory force against them would violate the "rights" that they "inherently" have and that they thus always retain by virtue of being human. Because Rand's theory is based on and derived from the observable requirements of man's life, it is not afflicted with contradictions regarding those requirements. On Rand's theory, rights are inalienable, in that others cannot take away or nullify one's rights; but they are also forfeitable, in that one can relinquish one's own rights by violating the rights of others. If and to the extent that a person violates the rights of others, he relinquishes his own rights and may be punished accordingly. His choice to violate rights places him outside the purpose of the principle and thus the scope of its protection. Again, one cannot claim the protection of a principle that one repudiates in action.

If rights were inherent in human nature, based purely on DNA or species-membership, then the advocates of "personhood for zygotes" would be right: the fertilized egg would have a right to life. However, on an objective theory of rights, rights cannot apply until the fetus is biologically separated from the woman. Only then does the fetus -- then a baby -- enter the social context necessary for rights. For further details, see Ari Armstrong's and my recently-published essay, "The Assault on Abortion Rights Undermines All Our Liberties.

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Original entry: See link at top of this post

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I'm wondering if the clarification of unalienable and inalienable affects this position.

briefly, both words means that which cannot be transferred or assigned. (cannot be given away, cannot be taken away)

However, UNalienable has a sense that it cannot be transferred or assigned by rules of nature and reality. (as if it was impossible or meaningless to transfer/assign)

INalienable has a sense that it cannot be transferred or assigned by the will of persons. (as if one shouldn't do it, but it is possible.)

The declaration of independence did flip flop between these words and I think ended up with unalienable. Does it make a difference here?

Edited by durentu

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I'm a little confused about this. Everyone who is against the practice of cruel and unusual punishment implicitly agrees that we don't have the right to do anything we want to murderers, rapists, etc. Why not? Because even though these criminals are dispicable, they are still human and deserve to be treated as such.

 

... If rights were somehow inherent in man by virtue of his being man, then we could never punish people who violate rights--because using retaliatory force against them would violate the "rights" that they "inherently" have and that they thus always retain by virtue of being human.

 

Of course we have the right to punish those who commit crimes, but we don't have the right to do anything we want to them because some rights are unalienable, meaning they can't be taken away.

Edited by mdegges

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I'm a little confused about this. Everyone who is against the practice of cruel and unusual punishment implicitly agrees that we don't have the right to do anything we want to murderers, rapists, etc. Why not? Because even though these criminals are dispicable, they are still human and deserve to be treated as such.

 

 

Of course we have the right to punish those who commit crimes, but we don't have the right to do anything we want to them because some rights are unalienable, meaning they can't be taken away.

 

We don't have the right to do anything we want to criminals because the punishment must fit the crime (i.e. must be proportionate). That is what reality (justice) demands.

 

The reason why the government does not torture murderers is not because we don't have the right to do it, but is because there is no rational reason to. The purpose of punishment is two fold: 1) to keep criminals out of the public's reach - i.e. to keep the public safe and 2) to deter future criminal acts. This is accomplished most successfully in a civilized society by imprisonment, fines, the death penalty, etc.

Edited by thenelli01

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You mentioned it a bit earlier, but your list of only two things in the second part of your post leaves out justice from reasons for punishment. Justice is an issue of the law of identity, of treating people for who and what they are, be it good or bad. It is another thing not directly dependent upon protection and deterence of future acts.

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Of course we have the right to punish those who commit crimes, but we don't have the right to do anything we want to them because some rights are unalienable, meaning they can't be taken away.

The purpose of moral principles is to aid people in furthering their lives. So no, a criminal's supposed right against cruel punishment shouldn't be respected at the expense of innocent people's lives. Whenever the two conflict (and there are instances where they do conflict), one should act to defend the innocents' rights, not the criminals'.

As far as some rights being unalienable, while others not, that suggestion just stems from a confusion of what rights are: they are moral principles. Saying that "you can't take someone's rights away" doesn't mean you can't violate them. It means that no matter how you try to justify violating them, you'll still be wrong.

That is true for all rights. When you punish a criminal in proportion to his crimes, you are not violating any of his rights. He forfeited them, by committing those crimes. (Diana explains why in more detail)

A murderer is someone who violated the most fundamental of rights, and has therefor forfeited all his rights. A murderer's rights are in no way different from a rabid dog's.

Everyone who is against the practice of cruel and unusual punishment implicitly agrees that we don't have the right to do anything we want to murderers, rapists, etc.

I'm against the practice of deep frying chicken wings. Does that mean I implicitly agree we don't have a right to do it? No, it doesn't, I could very well have another reason for opposing the practice.

Similarly, I'm against the practice of torturing jailed murderers as punishment. Does that mean I implicitly agree we don't have a right do to it? No, it doesn't. I have another reason for opposing it, which has nothing to do with rights (that reason is that cruelty is an unhealthy way to satisfy one's desire for justice).

Edited by Nicky

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Rights are derived from the nature of man as a being with a rational faculty.  A convicted felon still possesses a rational faculty so why do Craig Biddle and Diana Hsieh speak as if rights can be taken away?  Isn't it better to say that incarceration (and other legal penalties) is a justifiable violation of existing rights?  

Edited by Craig24

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We don't have the right to do anything we want to criminals because the punishment must fit the crime (i.e. must be proportionate). That is what reality (justice) demands.

 

The reason why the government does not torture murderers is not because we don't have the right to do it, but is because there is no rational reason to. The purpose of punishment is two fold: 1) to keep criminals out of the public's reach - i.e. to keep the public safe and 2) to deter future criminal acts. This is accomplished most successfully in a civilized society by imprisonment, fines, the death penalty, etc.

 

First you say the punishment must fit the crime. If you mean that the punishment must be equal to the crime (ie: following the lex talionis principle, an eye for an eye), then how do you propose that to work, in general, for all crimes? (ie: how would you deal with drug dealers, torturerers, rapists, etc? If the principle can't be applied generally for all crimes, there's no reason to apply it to only one crime (murder).

If you mean that the punishment must be proportional to the crime (as I think you do), then again, how does that support the death penalty? We can set the upper limit on punishments to be less severe than the death penalty, such as life imprisonment without parole. We would do that to avoid treating criminals inhumanely. Andrew von Hirsch, the creator of the proportionality system, notes himself that there is no requirement to set death as the most severe form of punishment. He also notes that there can multiple possible punishments for a crime.

As for your claim about deterrence, it's widely believed that the death penalty has no greater deterrent effect than life imprisonment. This is supported by 1) comparing murder rates in states that have the death penalty to those that don't, and seeing that murder rates are generally *not* lower in states that have the death penalty, and 2) understanding that people who can be rationally deterred from comitting a crime will already be deterred from life imprisonmen, as Conway explains below:

 

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I think the problem I'm having is that I'm trying to combine what I said above with the moral legitimacy of the right to self-defense and the taking of lives in times of war. (The reason it is moral to 'kill' in these situations is because the criminal poses a direct threat to your life and is infringing upon your right to life/right to private property.) However.... if it is moral to 'kill' in these situations, why is it immoral to 'kill' convicted murderers? My first thought is that we all have the unalienable right to life and that cannot be forfeited. But then how can I say it's moral to take the life of another in self-defense? There is a contradiction here

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If you mean that the punishment must be proportional to the crime (as I think you do), then again, how does that support the death penalty? We can set the upper limit on punishments to be less severe than the death penalty, such as life imprisonment without parole. We would do that to avoid treating criminals inhumanely. Andrew von Hirsch, the creator of the proportionality system, notes himself that there is no requirement to set death as the most severe form of punishment. He also notes that there can multiple possible punishments for a crime.

 

I wasn't presenting that statement as an argument for the death penalty, I was responding to your statement, "Everyone who is against the practice of cruel and unusual punishment implicitly agrees that we don't have the right to do anything we want to murderers, rapists, etc. Why not?" 

As for your claim about deterrence, it's widely believed that the death penalty has no greater deterrent effect than life imprisonment. This is supported by 1) comparing murder rates in states that have the death penalty to those that don't, and seeing that murder rates are generally *not* lower in states that have the death penalty, and 2) understanding that people who can be rationally deterred from comitting a crime will already be deterred from life imprisonmen, as Conway explains below:

 

 

I think the death penalty for murderers is justifiable because murder is the worst crime out there, and deserves the worst punishment. You take away someone's life, then you do not deserve to have a life of your own. And taking away someone's life is the worst punishment. As bluecherry pointed out, I mistakenly left out justice being a reason for punishment. And by the way, there are other factors in why people do or do not murder outside of the fear of the death penalty, which are not going to be changed regardless of the punishment. The fact remains that *some form* of punishment is necessary as a deterrent (as well as for purposes of justice and public safety) and I think the death penalty is justified for the above reasons.

Edited by thenelli01

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Rights are derived from the nature of man as a being with a rational faculty.  A convicted felon still possesses a rational faculty so why do Craig Biddle and Diana Hsieh speak as if rights can be taken away?  Isn't it better to say that incarceration (and other legal penalties) is a justifiable violation of existing rights?

Rights are moral principles. Is incarcerating a felon a violation of the moral principles guiding human interactions, or a correct application of them? 

 

And they're not saying "taken away", they're saying forfeited. When one refuses to interact by a given standard, he forfeits the right that others treat him in accordance with that standard.

Edited by Nicky

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I wasn't presenting that statement as an argument for the death penalty, I was responding to your statement, "Everyone who is against the practice of cruel and unusual punishment implicitly agrees that we don't have the right to do anything we want to murderers, rapists, etc. Why not?"

 

I see- You said, "[Justice demands that] the punishment must fit the crime (i.e. must be proportionate)." I suppose that makes sense in a super-vague kind of way, but it doesn't offer much more than 'drunk drivers should be punished less severely than serial killers.' What punishment do drunk drivers deserve? What about serial killers? How do we figure out the answers to these questions?

 

I think the death penalty for murderers is justifiable because murder is the worst crime out there, and deserves the worst punishment. You take away someone's life, then you do not deserve to have a life of your own. And taking away someone's life is the worst punishment.

 

In the system of proportionality you mentioned earlier, you said that we can't do anything to murderers (ie: torture them) because that is not proportional to the crime. You also said that death is the worst punishment, meaning torture is a less severe punishment than death. If that's the case, shouldn't criminals who commit crimes less severe than murder be tortured? Why would they not be?

 

...

 

So your reasons for supporting the death penalty are: 1) murderers don't deserve to live, 2) murderers must be executed because execution is the only punishment proportional to the crime, 3) many murderers are not deterred by the death penalty, and 4) some form of punishment is necessary to deter criminals from committing murder. 

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I think the problem I'm having is that I'm trying to combine what I said above with the moral legitimacy of the right to self-defense and the taking of lives in times of war. (The reason it is moral to 'kill' in these situations is because the criminal poses a direct threat to your life and is infringing upon your right to life/right to private property.) However.... if it is moral to 'kill' in these situations, why is it immoral to 'kill' convicted murderers? My first thought is that we all have the unalienable right to life and that cannot be forfeited. But then how can I say it's moral to take the life of another in self-defense? There is a contradiction here

 

I think the answer to this dilemma is that people and communities have the right to take lives in the name of self-defense because the agressors are a direct threat to innocent lives. When you are in a kill or be killed situation, you are justified in killing the aggressor. However, once a man has been disarmed, contained, and removed from society, he is no longer a threat to the public. Executing him would be entirely unnecessary and would serve no purpose.

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I see- You said, "[Justice demands that] the punishment must fit the crime (i.e. must be proportionate)." I suppose that makes sense in a super-vague kind of way, but it doesn't offer much more than 'drunk drivers should be punished less severely than serial killers.' What punishment do drunk drivers deserve? What about serial killers? How do we figure out the answers to these questions?

Yes, I wasn't intending to go into much detail. You start with the extremes and determine the proper punishment based on the severity of the crime - (i.e. a hierarchy of punishment based on the severity). Those who are determined to be a serious, objective threat to the public are sent to jail and lesser offenses are given lesser forms of punishment such as fines. Sentencing (years) and amount of fines are determined by creating a hierarchy. Obviously it is a bit more complex than that. I'm sure there are some topics on this site or around the web that you can search for.

 

In the system of proportionality you mentioned earlier, you said that we can't do anything to murderers (ie: torture them) because that is not proportional to the crime. You also said that death is the worst punishment, meaning torture is a less severe punishment than death. If that's the case, shouldn't criminals who commit crimes less severe than murder be tortured? Why would they not be?

 

 

No, I said we don't have the right to do anything to criminals because the punishment must be proportional to the crime. I object to torture as a punishment because it doesn't make sense to do so. As I stated above: punishment serves three main purposes: 1) To keep the public safe 2) To deter future crimes and 3) Justice. Prison accomplishes this perfectly. The government is there to be the objective arbitrator of retaliatory force. It should not engage in torture because it is cruel and non-objective.

 

 

So your reasons for supporting the death penalty are: 1) murderers don't deserve to live, 2) murderers must be executed because execution is the only punishment proportional to the crime, 3) many murderers are not deterred by the death penalty, and 4) some form of punishment is necessary to deter criminals from committing murder. 

 

 

Wow, is that what I wrote?

 

I support the death penalty for a murderer because it accomplishes the purpose of punishment perfectly - It is an act of justice. Someone who murders (i.e. takes someone's life unjustifiably) doesn't deserve to live and deserves the worst punishment, which is losing your life. A murderer poses a serious threat to the public and there is the very real possibility that he may break out of jail. So, taking his life rids this threat. And it acts as a deterrent for anyone who values his own life.

Edited by thenelli01

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 However, once a man has been disarmed, contained, and removed from society, he is no longer a threat to the public. Executing him would be entirely unnecessary and would serve no purpose.

 

Right, so explain:

 

 

 

Murderer may have killed again after prison escape

VARNER, Ark. (AP) A murderer who taunted his victim's family after being spared the death penalty broke out of an Arkansas prison and may have killed again before he was captured Monday in Missouri, police said.

Kenneth D. Williams, 20, was caught after a 100 mph chase in which a motorist was killed.

Williams escaped from the Cummins Unit maximum-security prison in Varner on Sunday, and investigators believe that within a couple of hours after the breakout, he had killed a man for his pickup truck.

Williams was found guilty Sept. 14 of robbing and murdering a college cheerleader. He chuckled when the jury decided he should get life in prison. Turning to the victim's family, he said: ''You thought I was going to die, didn't you?''

Correction Department spokeswoman Dina Tyler said Williams escaped late Sunday morning, though authorities did not realize he was gone until 6 p.m. Prison authorities said they did not know how he escaped.

By the time the escape was noticed, Cecil Boren, 57, had been found fatally shot on his farm about four miles from the prison. His truck was stolen and several guns were missing.

Missouri police spotted the truck Monday morning in Lebanon, more than 300 miles from the prison. Williams rammed a state police car, sending it careening into a truck, police said. Then he ran to a house nearby, where he was arrested.http://lubbockonline.com/stories/100599/nat_1005990095.shtml

 

The fact is that prison escapes DO occur, and murderers do still pose a threat to the public even after sentenced to jail.

Edited by thenelli01

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Rights are moral principles. Is incarcerating a felon a violation of the moral principles guiding human interactions, or a correct application of them? 

 

And they're not saying "taken away", they're saying forfeited. When one refuses to interact by a given standard, he forfeits the right that others treat him in accordance with that standard.

 

Yes, my apologies.  I misread the OP.  That leads to the next question: Isn't it more accurate to say that the criminal forfeits the respect his rights are owed since he still possesses the rational faculty from which his rights are derived?

Edited by Craig24

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Sooo, my two cents here on rights and the death penalty:

 

First, rights. "Inaliable, but forfeitable" means just that other people cannot do anything to forcibly remove your rights, however, you can choose to do things yourself which will give them up.

 

Death penalty - While I think it can be merrited, I generally am leery of using it as part of the formal legal justice system due to the permanance of it combined with a history of people being eventually proven to have been wrongly convicted.

 

I see- You said, "[Justice demands that] the punishment must fit the crime (i.e. must be proportionate)." I suppose that makes sense in a super-vague kind of way, but it doesn't offer much more than 'drunk drivers should be punished less severely than serial killers.' What punishment do drunk drivers deserve? What about serial killers? How do we figure out the answers to these questions?

At this point I believe we exit the realm of general philosophy and get into specialized sciences of law.


 

Edited by bluecherry

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 "Inalienable, but forfeitable"  is a phrase that is literally incoherent.  What is inalienable cannot be alienated even by forfeiture.  (See http://www.thefreedictionary.com/alienate esp. entry 4)

 

A right is an ethical and political principle which names a norm for proper social actions, action by yourself toward others and others toward yourself and between others.  Since a right is a principle and not a part of a person or a piece of property it is not a kind of thing that ever could be alienated.

 

What can be alienated is respect for a person's rights, where respect for rights means current and future actions conform to the norm named by the principle of rights.  Extending respect for rights itself is conditional on receiving respect for one's own rights. There is no deontological rule commanding us to always respect everyone's rights.  Instead of the deontological approach, the trader principle applies.

 

Criminals are those found not to have respected rights in specific acts, and as a consequence forfeit expectation of their rights being respected.  The proportionality principle applies; the respect of some rights can be forfeited while expectations of respect for others are retained.  

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Huh. I'll be darned. I really didn't know before that the definition of "inalienable" included oneself. Learn something new every day.

 

I think the issue of rights as something not to be violated is a matter of the word itself. Rights, they're (one type of) what is right and thus violations of them would be "wrongs". Or at the least, the label sure makes that a logical inference.

 

There's a lot of parentheticals below, so I'm going to bold the main text to try to make it easier to read.

 

I've typically thought of it as "rights" being things which human beings need qua human beings from other people when other people are around which it is right for other people to comply with. It's right (morally correct stemming from being logically correct via the law of identity) for people to comply with these particular needs from others due to a human beings existence being an end in itself. These things referred to as rights are the basic, fundamental minimum for treating others as people. If somebody initiates actions which are not in compliance with these things against others, then they have stopped acting qua human being (not treating others who are humans acting qua human as human which is acting irrationally counter to the law of identity) and thus in accordance with whatever extent they have stopped acting qua human being by not complying with the rights of others, it is no longer right (morally correct stemming from being logically correct via the law of identity) for us to treat them completely as people, things which it is right for us to comply with certain minimum needs from. Instead it becomes right (morally correct stemming from being logically correct via the law of identity) to treat them . . . not exactly like a non-human animal (if a non-human animal starts harming you, you do what is necessary to stop them and keep it from happening again, but you don't really punish them due to them not being fully in control of themselves and capable of making informed choices like people can), more like . . . they're capable of moral actions, but made the immoral choice to treat somebody else improperly by not complying with that person's rights. They're still human, they still have these needs if they're going to pursue existing, but they've done bad things, bad things of a particular type which merrit similar, proportionate treatment.  (By "similar" I don't mean something necessarily like breaking the window of somebody who broke your window, just that it will involve others exerting force on you, such as by taking some property away or taking away somebody's ability to move about freely.) It is no longer right in such a case for other people to completely comply with all of the things this other human needs qua human from others.

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@nelli: You have not explained why torture is at odds with the purpose of proportional punishment, and is "non-objective." If we have 2 murderers, one of whom tortured, raped, and murdererd 50 people over the course of a decade, and another who killed his brother in a rage, do both of them deserve the same punishment?

 

You also have not explained why the death penalty "accomplishes the purpose of punishment perfectly" and "is an act of justice." As I explained earlier, execution is no more of a deterrent than life imprisonment. Further, the percentage of inmates who have actually escaped from jail is less than 2% each year.

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@nelli: You have not explained why torture is at odds with the purpose of proportional punishment, and is "non-objective." 

 

You would have to explain to me why torture is in line with the purpose of punishment before we can talk about proportion. You could just as well say, if the death penalty is the worst punishment, wouldn't it be acceptable to punish lesser offenses by making criminals wear a sign out in public saying "I'm stupid".

 

Why is torture a proper punishment?

 

 

@nelli: If we have 2 murderers, one of whom tortured, raped, and murdererd 50 people over the course of a decade, and another who killed his brother in a rage, do both of them deserve the same punishment?

 

Let me go even further and make it complete for you. We have 2 murderers, the one of who tortured, raped, and murdered 50 people over the course of a decade, and the other Hitler, who is responsible for 6,000,000 deaths. Do both of them deserve the same punishment? 

 

When you get into the realm of murder, whether it be one murder or 1 million murders, you forfeit the right to have your (right to) life respected. The rule of proportionality doesn't apply because it is the extreme. And this is true regardless of whether we had the death penalty or simply life in prison as the extreme. Someone who murders only two persons compared to murdering 60 people will both, in actuality, get life in prison.

 

 

You also have not explained why the death penalty "accomplishes the purpose of punishment perfectly" and "is an act of justice." As I explained earlier, execution is no more of a deterrent than life imprisonment. Further, the percentage of inmates who have actually escaped from jail is less than 2% each year.

 

I said it accomplishes the purpose of punishment perfectly because it hits all the purposes of punishment: justice, safety, and deterrent. As I have said 3 times, the death penalty is an act of justice because it rids from society a serious, direct threat, who has proven his through his despicable crimes, that he does not respect peoples' fundamental right to life. Yes, life imprisonment accomplishes this too, but less effectively, and at a higher cost. 

Edited by thenelli01

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 Criminals are those found not to have respected rights in specific acts, and as a consequence forfeit expectation of their rights being respected.  The proportionality principle applies; the respect of some rights can be forfeited while expectations of respect for others are retained.  

 

You can agree with this and either support or not support the death penalty, right? I think it really all comes down to what you set as the upper limit on punishments.

 

Also.. about the respect issue: even if you don't respect someone's rights (ie: a murderer's right to life), that doesn't mean that you must act to deprive him of his life, does it? My line of reasoning is that a criminal cannot expect all of his rights to be respected (ie: the right to liberty while incarcerated, or the right to happiness while in solitary confinement), but the right to life should be if the criminal in question is no longer a direct threat to society- if he's been disarmed, contained, and most of his rights have been taken away. Also, since the death penalty doesn't deter criminals more than life imprisonment, why wouldn't we use the less severe, less final punishment?

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