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Writing with the bold pathos that no doubt
comes from his experience in captivity after World War II, Carl Schmitt in his autobiographical Ex captivitate salus claims to be standing on a threshold, as the guardian of a world order that is about to be drowned out in forced silence: ‘‘I am the last conscious representative of the jus publicum europaeum, its last theoretician and investigator in an existential sense, and I experience its end just as Benito Cereno experienced the voyage of the pirate ship. This is the time and place of silence. We should not be afraid in this regard.’’ 1 Like Herman Melville’s ﬁctive Spaniard, Schmitt presents himself as an involuntary witness to the threatening decline of a great world order. Even more so than Don Benito Cereno, though, perhaps it is a character from a story by Jorge Luis Borges, ﬁrst published in February 1946, who provides a more accurate analogy to Schmitt’s existential and scholarly situation in the summer of that same year. Thus, writing from his prison cell in an attempt, if not to justify, then at least unabashedly to proclaim his role at the head of a Nazi concentration camp, Otto Dietrich zur Linde, the narrator of ‘‘Deutsches Requiem,’’ concludes his would-be testament as follows:
The South Atlantic Quarterly 104:2, Spring 2005. Copyright © 2005 by Duke University Press.
An unforgiving era now closes in on the world. even visionary. rather. May heaven exist. may they befall other nations. Perhaps the alternative between victory and defeat is even a false one. We have created this era. we have sacriﬁced the fate of our beloved country. If victory and injustice and happiness are not for Germany. and not the servile shynesses of Christianity. England or the United States of America. at least a new spatial order already has been forged. A treatise on the rise and fall of European international law. Perhaps we are conceding already too much as soon as we accept the logic behind the argument for any nomos of the earth at all. an essay on what might as well have been called the concept of the geopolitical: whatever else Schmitt’s The Nomos of the Earth legitimately can purport to be. Ruled by violence. a contorted but never reluctant imperialist doctrine parading in the guise of a scientiﬁc history of the principle of territoriality. it is also. to me it gives great pleasure that our gift should be orbicular and perfect. is . though. we who already are its victims. now we know that Germany is one of those things. What does it matter that England is the hammer and we. For a critique of The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. the issue cannot be limited to inverting the respective places of hammer and anvil. Schmitt writes: ‘‘This ‘law of mine and thine that distributes the land to each man. a new global order—a new nomos of the earth—already has been marked out. a grand theory of the event—of land appropriation as the originary event of all human history. We have given something more than our lives. whether old or new. Let others curse and cry. data in Schmitt’s book. and a new era already has begun. not even in order to add a sickle. are the hammer. but to debunk its most stubborn theoretical presuppositions. the anvil? The important thing is that violence reign all-powerful. one that is both perfect and orbicular. Quoting Kant. at least implicitly. even if our place is hell. this arcane victory is not unavoidable. even while claiming to be its noblest opponents.296 Bruno Bosteels Many things must be destroyed in order to build the new order. to use Borges’s apt neologism. Perhaps. My aim therefore is not to correct or amend the concrete ﬁndings and potentially useful. it is a question of interrupting the very logic of the nomos before we become its unwitting victims. and Germany the anvil.’ as he puts it. Beyond the visible defeat of the Third Reich there lies a secret world-historical victory.2 Even if those great sea powers.
namely the appropriation of the land. Schmitt. Brieﬂy put. appears as the ultimate answer in Schmitt’s lifelong quest for the authentic principle of legitimacy beyond mere legality. though. in order to preempt this confusion. Schmitt claims. that this reductive translation is not supported by etymology. the repeated emphasis on the historically authentic nature of the act of land appropriation only highlights. the historical event of land appropriation is what creates the most radical title and the primary criterion that determines all subsequent criteria: Land-appropriation thus is the archetype of a constitutive legal process externally (vis-à-vis other peoples) and internally (for the order- . 39/6). as if through a symptomatic excess of speech. is at pains to bring out the historical substance behind the originary acts of appropriation. it is a constitutive historical event—an act of legitimacy. positivistic times. geschichtlichen und politischen Ereignissen]. rather than avoiding this ambiguity. nomos is precisely the full immediacy of a legal power not mediated by laws. the problems that beset the logic of the nomos as a whole. Ultimately. even though he himself admits to a certain disdain for philological precision: ‘‘In its original sense. and yet. Land appropriation.The Obscure Subject 297 not positive law in the sense of later state codiﬁcations. He refers to the Greek sea appropriations as ‘‘world-historical events of revolutionary signiﬁcance. the aim is not just to sketch in a historiography of such rare and unrepeatable events but rather. we know that to translate nomos as ‘‘law. however.’’ as a mere ‘‘ought’’ in opposition to the ‘‘is’’ of physis or ‘‘nature. to reach out for the radical ground of all social. moreover. whereby the legality of a mere law is ﬁrst made meaningful’’ (73/42).’’ just as the ‘‘legendary and unforeseen discovery of a new world. appears as ‘‘an unrepeatable historical event’’ for which we today can imagine only ‘‘fantastic parallels’’ (44/15. or empire. In fact. remains ambiguous throughout the book and. or of the system of legality in subsequent state constitutions.’’ is seen as already a sign of decadent.’’ 3 The status of this event. historical and political event [eines ganz konkreten. cultural. on a much more profound level. however. legal. As an act of legitimacy. people. it is and remains the real kernel of an entirely concrete. land appropriation is an act or event that can be found at the beginning of every community. it should not be confused with a purely hypothetical origin or an empty theoretical ﬁction of the kind found in normativist and contractualist theories. as the founding act behind every true nomos of the earth.’’ which marks the onset of the modern nomos or jus publicum Europaeum. and political order.
‘‘I want to restore to the word nomos its energy and majesty. (47/17) All subsequent legal relations to the soil. perhaps only ancient poetic invocations can provide us with a hint of its numinous power.’’ with land appropriation being the ‘‘archetype’’ or Ur-Typus of a rechtsbegründende Ur-Akt. originally divided among the appropriating tribe or people. Schmitt. every commonwealth. All further property relations .as the German preﬁx for the originary or primeval. and all institutions of the walled city or of a new colony are determined by this primary criterion.’’ in which all law is rooted and which in turn enables a seinsgerechte Urteil.298 Bruno Bosteels ing of land and property within a country). Not only logically. the constitutive process of a land-appropriation is found at the beginning [ Anfang] of the history of every settled people. furrowing its way deeper and deeper into the order of the earth. Every ontonomous and ontological judgment derives from the land. meaning not only a ‘‘judgment’’ but also a ‘‘primary division in accord with the just nature of being’’ (45–47/16–17). a ‘‘primeval act in founding law. we will begin with land-appropriation as the primeval act in founding law. It creates the most radical legal title.’’ Schmitt comments. however. (45/16) In passages such as these. 70/39). every empire. the source [Ursprung] of all further concrete order and all further law. the act of land appropriation. It is the reproductive root in the normative order of history. arguing for the interpretation of nomos as an Urwort. Schmitt is actually relentless in his predilection for all words with Ur.’’ which establishes the bodenhafte Urgrund. that is. are derived from this radical title. It constitutes the original spatial order [raumhafte Anfangsordnung]. land-appropriation precedes the order that follows from it. but also historically. its ‘‘originary constitution’’ and ‘‘primary measure. Nomos would be the lasting source of a people’s Urverfassung and Ur-Maß. This is true as well for the beginning of every historical epoch. in some form. is particularly fond of quoting Heraclitus and Pindar: Thus. far from being a historical event that still somehow could be placed in a speciﬁc time and space. Since the original meaning of the word nomos has been distorted by latter-day positivism and sophistic legalism. we know. the ‘‘terrestrial fundament. All subsequent . For this reason. in the full and comprehensive sense of the term radical title. gradually turns into an obscure origin that is receding before our very own eyes. or ‘‘primeval word’’ (67/36. . .
the relation of space to appropriation must also be considered in an analogous way.’’ Schmitt quotes a philosopher of language as saying: ‘‘In this way. still knows the secret origin. at the same time. whether the relation between the event of appropriation. even when men have forgotten them’’ (346). due to the long history of its oblivion and decline. Schmitt is obviously close to Heidegger. section 70. History’’: ‘‘This search is directed to ‘that which was already there. Language. language traces the eﬀective and successive constituting processes and events. we ﬁnd ourselves in the midst of the search for an origin in the strong metaphysical sense of the German word Ursprung. this origin is always a lost origin. thus. to use Heraclitus’ word. and language is put in juridico-historical or in strictly philosophical terms. We can admittedly succeed in this only when we have previously gained insight into the origin of space in the properties peculiar to site and have thought them adequately. What is more. by this source [Ursprung].’’ after opening up a new path of thinking that is strikingly similar to Schmitt’s: ‘‘Since time as well as being can only be thought from appropriation as the gifts of appropriation.The Obscure Subject 299 law and everything promulgated and enacted thereafter as decrees and commands are nourished. Genealogy. to derive human spatiality from temporality is untenable. a similar problematic also brings together some of the interests behind the later works by Schmitt and Heidegger. who seems to be the real target of Foucault’s criticism.’ the image of a primordial truth fully adequate to its nature. In terms of the organicity of language and the doubtful use of etymology. to restore the energy and majesty to the primeval origin of all concrete order involves an impossible act.’’ 5 The origin always precedes and. With Schmitt’s land appropriation. free from the restraints of positive . for Schmitt. ‘‘The attempt in Being and Time. and it necessitates the removal of every mask to ultimately disclose an original identity. which may well obscure the very thing that it claims to bring to light: ‘‘From the vantage point of an absolute distance.’’ 4 Thus. in any case. (48/19) Poetic speech and organic metaphors here serve to bring forth the mysterious origin that is said to support all further enactments of order and law. ‘‘Language knows it still. grounds the particular occurrences that mark the destiny of its unfolding. spatiality. However. as diagnosed by Michel Foucault in ‘‘Nietzsche.’’ Heidegger admits in his lecture ‘‘Time and Being. after the decisionistic aspects they may have shared earlier. Even the decisive shift from time to space is consistent with certain later writings from the author of Being and Time. as is also the case for Heidegger.
space. the origin makes possible a ﬁeld of knowledge whose function is to recover it. and she sustains law above herself. of course. of the legitimate origin of all subsequent legal power and positive juridical knowledge. there is being. at the same time as it is spatial and concrete. or of space and justice into the uniﬁed concept of an authentic geopolitical (or geojuridical) ontology. that is to say. she manifests law upon herself. the point where the truth of things corresponded to a truthful discourse. second. Its ﬂeeting articulation. and law as right. all being is oriented in accord with an immanent principle of justice and right: ‘‘Right is the rightfulness of being that is given at the origin. but always in a false recognition due to the excesses of its own speech.300 Bruno Bosteels knowledge. involves not only a seemingly inﬁnite regress to the primeval origin but also something that I can describe only as a double operation of suturing: ﬁrst. that is.’’ 7 All being. (78/47) . as a reward of labor. of being and right. the site of a ﬂeeting articulation that discourse has obscured and ﬁnally lost. This is what the poet means when he speaks of the inﬁnitely just earth: justissima tellus. the further suturing of this always-prior ontological order onto the concrete history of European (or Western Hemispheric) international law.’’ 8 The earth itself. as ﬁxed boundaries. also contains an inner measure. This original act is nomos.’’ 6 Schmitt will do everything humanly possible to stamp out the traces of this inevitable misrecognition. and. however. constitutive act of spatial ordering. as a public sign of order. The origin lies at a place of inevitable loss. space. Schmitt ﬁrst of all presupposes an immediate connection between being and spatiality. She contains law within herself. moreover. the earth is bound to law in three ways. (42/13) In reality. ‘‘Where there is space. and he himself asserts with even greater clarity: ‘‘The essence of being is to be spatial. it is presence. It is here that we ﬁnd the threefold root of law and justice: In this way. the words of Heraclitus and Pindar mean only that all subsequent regulations of a written or unwritten kind derive their power from the inner measure of an original.’’ he is fond of quoting Nietzsche as saying. it is not a temporal succession. The Nomos of the Earth is a book about the loss and return of origin. is the primary site for this powerful suturing of being. position. space and power. Law is bound to the earth and related to the earth. of earth and law.
’’ 9 The earth displays no inner measure. between physis and nomos.’’ or rather ‘‘ungrateful’’—indifferent to the very question of justice and injustice: ‘‘Stony ground but not entirely. one asks: ‘‘Does something happen?’’ And. I am referring to the way in which the complex of being. no geopolitical question can be more timely today. seems to be the success and lasting force of actual fact. or ‘‘Can a subject who is prey to language rejoin its silent identity?’’ Instead. however. The second suture is even more violent in smoothing out the arbitrariness of accident in the name of an underlying continuity. Otherwise. though. and law is related to European history. the earth is not ‘‘inﬁnitely just’’ but ‘‘unjust. All that Schmitt has to oﬀer by way of an answer. nor is being ordered by an originary justice. And this supplement. For the author of Enough. when the gap between being and law. more precisely: ‘‘Is there a name for the surging up.’’ which opens a breach in the totality of being instead of rooting the linkage between being and law in the earthy ground. In fact.The Obscure Subject 301 If we accept for a moment to enter this register of a mythopoetic ontology that once again would highlight the proximity between Schmitt and Heidegger. for an incalculable advent that de-totalizes being and tears the subject away from the predestination of its own identity?’’ 10 To ask the question of the event and subjectivity in the context of the debate over sovereignty. followed by a circular reassertion of . the much-invoked event will never have been an incalculable beginning but only a name for the obscure object of a metaphysical desire for origins. To use the words of Alain Badiou in his reading of Beckett: What is this breach in the totality of being and self ? What is to be found in this breach that is simultaneously the not-all of the subject and the grace of a supplement to the monotony of being? This is the question of the event.’’ It is no longer a matter of asking the question ‘‘What of being such as it is?’’. of ‘‘what-comes-to-pass. what is obliterated is the notion that justice requires a supplement to the monotony of sheer being. Surely. or between ‘‘is’’ and ‘‘ought’’ is sutured. I am tempted to counter the often repeated quotes from Heraclitus and Pindar with an expression from Samuel Beckett. this ‘‘but not entirely. Let us even ignore the fact that nothing really allows us to distinguish an authentic act of land appropriation from an inauthentic one. space. we should ﬁrst of all undo the suture that binds together earth and law. raises the question of a subject that would not be enthralled by the origin of a silent destiny.
which is not purely intellectual so much as ideological. understood in our sense of the term. rather than oﬀering an alternative to decisionism and positivism. How long should a brutal use of force last. Plainly put. before it qualiﬁes as a legitimate act of founding law? The more important question. at times. There is a strong sense in which this construct. however. to be a great historical event [ großes historisches Ereignis]. there have been many acts of force that have destroyed themselves quickly. even if. on the other. from successful defense of a country against foreigners’’ (46/17). In its sheer arbitrariness. there is the level of appropriation as a great legal-historical event in the ontological sense of the term. we even ﬁnd that the hesitation surrounding this procedure is displaced onto a baﬄing duality in the use of historicity itself: ‘‘We must not think of landappropriation as a purely intellectual construct. In world history. always includes a land-based order and orientation’’ (80/48).302 Bruno Bosteels the premise behind his geopolitical ontology: ‘‘Not every invasion or temporary occupation is a land appropriation that founds an order. but must consider it to be a legal fact [eine rechtsgeschichtliche Tatsache]. Schmitt’s thinking of the concrete order. Schmitt. every seizure of land is not a nomos. In one symptomatic instance. and migrations. Thus. in fact still relies on the former while opposing the latter. the right to land arose from overﬂowing migrations of peoples and campaigns of conquest and. and. colonial wars. is also closer to myth than it is to history. there are the tumultuous sundry realities of conquests. at other times. by linking the two meanings of history— one apparently originary and authentic and the other derivative and almost secondary—always seems to rely on the ontological claim of an inner law of the earth. although conversely. what this mytho-metaphysical way of thinking conceals is the bloody nature of most world-historical inceptions. Historical thinking becomes mythical when this violent part of nonlaw behind the law is serenely ignored in favor of the imposition of a primordial order. one is tempted to ask. except that now this reliance is disguised behind the mask of a distant measure that would have been immanent to Mother Earth herself. this retroactive linkage only highlights the willfully ignored decision that lies at the heart of any nomos of the earth. nomos. . remains: Who is to say? A few moments in the book suggest the tenuousness of the suture between the ontological and the historical. On one hand. historically [in der geschichtlichen Wirklichkeit]. as if to suggest that this immanent and primeval normativity was actually destined to become exposed in the history of Western imperialism. land-appropriation proceeded rather tumultuously.
the result is an occultation of the present under the pressure of an absolutely prior origin: ‘‘In fact. It confronts us with an impersonal superego whose face supposedly coincides with the earth’s stony ground.’’ 12 The reactive ﬁgure. the obscure ﬁgure is the ﬁgure of the denegation of the present because it approaches the event in a ﬁgure of transcendence. It is in this sense that the superego ends up being identical to the most ravaging and fascinating aspects in the primitive experiences of the subject. It ends up being identical to what I call the ferocious ﬁgure.’’ Jacques Lacan says in his ﬁrst seminar: The superego is both the law and its destruction. other than an obscure or reactive ﬁgure. whatever they be. and at the same time it is a senseless law. ‘‘The superego has a certain rapport to the law. it is the word itself. Following Badiou’s views. while conﬁrming the existing status quo. No subject. which goes so far as being a misrecognition of the law. A true nomos is nothing but a call to order reduced to its bare root. Instead of elaborating the event’s consequences for the here and now.The Obscure Subject 303 In psychoanalytical terms we might say that the logic of the nomos presents a terrorizing superego injunction as if it were the earth’s own call to us. as a full subject. like the You must. to the ﬁgures that we can tie up with primitive traumatisms. is then merely imposed as myth or religion. which always lies beyond language. an obscure ﬁgure can be deﬁned as one enraptured by the event as a radical and unattainable origin that from times immemorial precedes and overwhelms the laborious process of a speciﬁc truth in the present. is allowed to sink back into the uniform nature of the earth’s inner law. Schmitt comes closest to this ﬁgure when he equates nomos with property: . on the other hand. insofar as only its root is left. can be tied to this order when the earth itself is said to be sovereign. which is a word deprived of all meaning. Its primordial injunction is a peremptory ‘‘you must’’ that pretends to be derived without mediation from the ‘‘is’’ of Mother Earth.11 What happens when this supralegal injunction hides behind the thought of concrete order is that the obscene part of nonlaw at the root of all law. suﬀered by the child. as fascinating and ferocious as the native lay of the land. In this. which the ferocity of the superego injunction at least had the sinister virtue of exposing. The law is entirely reduced to something that cannot even be expressed. Knowledge of this origin. does not turn the event into a mythical origin but rather negates that there actually was an event in the ﬁrst place. the law’s commandment.
at the end of this circular path. he asserts that nothing can overcome the hiatus between abstract norms and concrete laws: ‘‘Between the concrete and the abstract. but in a geopolitical ontology there is no space for sovereignty either. and disparities that its deployment is meant to suture.304 Bruno Bosteels ‘‘Abstractly speaking. nomos is. To the contrary. my only hope is that. and space is meant to close the gap that constitutes the fundamental site of the sovereign decision. This. for sure. Schmitt started his lifelong investigation into the principle of legitimacy by positing such a gap. breaches. nomos is law and property. the part or share of goods. can mediate between the two and complete the chain between right. Notes 1 Carl Schmitt. However that may be. André Doremus (Paris: Vrin. then. they are enframed by the supposition of an all-encompassing objective nomos of the earth. between right and the realization of right. for example. As Schmitt writes in Political Theology: ‘‘The connection of actual power with the legally highest power is the fundamental problem of the concept of sovereignty. i. In The Value of the State and the Meaning of the Individual. law.e. and the car every American worker has parked in his garage’’ (327). Compared to this chicken and this car. In the end. both the strong dualism of the earlier normativist writings and the decisionist mediation by a sovereign power are somehow made superﬂuous. one would almost understand the predilection for obscurantism. the suturing of being. ed.’’ 13 Only the state.’’ 14 With the move toward thinking in terms of concrete order. Concretely speaking. and the individual so as actually to enforce the law. is condemned to go back to the start with the quest for sovereignty. lies in the fact that any attempt to break with the obscure logic of the nomos. the parcel of land every farmer cultivates as his property. there lies an insuperable abyss that cannot be bridged in a progressive passage from one to the other.. Expériences des années 1945–1947. in a sovereign decision. for example. 2003). My reading of Schmitt is deeply inﬂuenced by Montserrat Herrero López’s study El nomos y lo político: La ﬁlosofía política de Carl Schmitt (Pamplona: . might be a secret posthumous victory for Schmitt. not only is there no real place for the subject. Perhaps the ﬁnal paradox. particularly by reinstating the gaps. however. 161. or rather. the state. we do not have to ﬁnd ourselves again in the middle of The Nomos of the Earth. the chicken in every pot that every peasant living under a good king has on Sunday. Ex captivitate salus. too. The problem of sovereignty lies precisely in the connection between law and the enforcement of law.
Gontarski (New York: Grove. Jorge Luis Borges. unpublished seminar from March 19. 1995). 67. On Time and Being.’’ . ed. and on the diﬀerence between Anfang and Ursprung. 103.The Obscure Subject 305 2 3 4 5 6 7 8 9 10 11 12 13 14 Ediciones Universidad de Navarra. Foucault. to use the well-known Hegelian distinction’’ (El nomos y lo político. Whether or not he is justiﬁed in doing so for Nietzsche. trans. S. 18. 48. 23 (translation modiﬁed).’’ 143. Genealogy. NY: Cornell University Press. Peter Schneider. G. 1990). 55–56. Herrero López is partly mistaken in this regard when she writes that he ‘‘pursues the Prinzip and not the Anfang. Foucault draws a sharp distinction between the metaphysical concept of origin (Ursprung) and the genealogical concepts of provenance (Herkunft) and inception (Entstehung). the text reads: ‘‘Terre ingrate mais pas totalement. 164n133. 1975). Carl Schmitt. trans.’’ in Heidegger on Being and Acting: From Principles to Anarchy. 1972). Ulmen (New York: Telos. ‘‘The Writing of the Generic.’’ in The Complete Short Prose. Nina Power and Alberto Toscano (Manchester: Clinamen. vol. Schmitt. in ‘‘The Origin Is Said in Many Ways. 2003).’’ Alain Badiou. Genealogy. in Herrero López. ed. Practice: Selected Essays and Interviews. ‘‘Enough. trans. trans. Jacques Lacan. in On Beckett. Sandrine Baume (Geneva: Droz. quoted respectively from Raum und Rom and Glossarium. ‘‘Deutsches requiem. In French. Counter-memory. Alain Badiou. 2003). Petite théorie (restreinte) du sujet. ‘‘Nietzsche. Carl Schmitt. 1973). and ed. 1997. ed. 1977). L. Reiner Schürmann comments on the diﬀerence between the ‘‘original’’ and the ‘‘originary’’ origin. Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Cologne: Greven Verlag. Schmitt.’’ in El Aleph (Madrid: Alianza. See also the chapter ‘‘The Retreat and Return of the Origin’’ in Foucault’s The Order of Things: An Archaeology of the Human Sciences (New York: Vintage. MA: MIT Press. The German original reads: ‘‘Recht ist die im Ursprung gegeben Richtigkeit des Seins. 54. refer to the English and the German editions. Le séminaire. see also 131). Political Theology: Four Chapters on the Concept of Sovereignty. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. as we saw. 78–79. Joan Stambaugh (New York: Harper & Row. quoted in Herrero López. 2003). ed. Les écrits techniques de Freud. ‘‘Nietzsche. 1929–1989. 1950). Bouchard (Ithaca. E. 1997). El nomos y lo político. 328–35. uses both Ursprung and Anfang. George Schwab (Cambridge. trans. Page numbers in the body of the text. Michel Foucault. La valeur de l’État et la signiﬁcation de l’individu. 1995).’’ in Language. Donald F. 18. Bruno Bosteels. Carl Schmitt. 18. separated by a slash. 1. In German. Christine-Marie Gros (Bloomington: Indiana University Press. 142.’’ Samuel Beckett. 1985). 164–65. Jacques-Alain Miller (Paris: Seuil. 97–151. Martin Heidegger. History. I will frequently rely on the German edition.’’ trans. the text reads: ‘‘Die Verbindung von faktisch und rechtlich höchster Macht ist das Grundproblem des Souveranitätsbegriﬀes. History. This study has the virtue of placing The Nomos of the Earth in the broadest possible context of Schmitt’s entire oeuvre.
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