Материал: disser_arhipov

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§ 3. Assessment of the semantic limits of law based on the approaches that pretend to have an understanding of absurdity

Thus, the philosophy of morality, as well as its rethinking in the dispute between L. Fuller and H. Hart, does not give us enough methodological material to reconstruct the semantic limits of law, at least in the conditions of the medial turn. Since the empirical material encourages us to correlate the question of the semantic limits of law not only with the concepts of virtual reality in the broad sense of the word, but also with the concepts of absurdity and common sense, and the problem itself, in fact, can be presented as a problem of interpretation of law, let us try to pay further attention in search of a solution to the problem of criteria of the semantic limits of law in the field of legal interpretation. It may be noted with interest that the word “absurd”, both in theory and in practice of legal interpretation, has an unusual fate – it is used by almost everyone (moreover, in the normative and law-enforcement acts themselves), but it is not defined practically by anybody, and we are not even talking about a strict formal-logical definition, but literally about any – contextual, or other – which would allow us to understand what we are talking about with a sufficient degree of certainty, and not to get an illusion of such understanding. Perhaps the author of this study simply fell victim to a plot of his colleagues, who for at least several centuries have agreed on terms in the modern version of the law, but decided to keep everyone else in the dark. Without having the best, let us nevertheless try to work with the material that is available now.

To begin with, based on academic sources and empirical material, let us try to generalize those scant and disparate information about the absurdity that we have at the moment, and at the same time see whether the theory of legal interpretation, which is directly called the “doctrine of absurdity” (even though it develops within the framework of Anglo-American legal thought, the object of research is essentially the same for all legal systems or families – a legal text, etc.), i.e., the text that serves as the basis for the

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reconstruction of the granting-binding norms). As a result, what do we know about absurdity?292

§ 3.1. Selected examples of references to absurdity in the Russian practice of application of law

References to absurdity and common sense are found both in normative sources and in law enforcement practice. One of the most famous examples of the first is Article 32(b) of the Vienna Convention on the Law of Treaties (concluded at Vienna on 23.05.1969),293 according to which additional means of interpretation, including preparatory work and the circumstances of the conclusion of the treaty, may be invoked to confirm the meaning arising from the application of Article 31,294 or to determine the meaning when the interpretation in accordance with Article 31 produces results that are manifestly absurd or unreasonable. One of the few examples of direct application of this article in the practice of international jurisdictions is reflected in the Judgment of the European Court of Human Rights of 24.01.2017. “The case of Khamtokhu and Aksenchik v. the Russian Federation”

(complaints No. 60367/08 and 961/11).295 Item 23 of this Judgment, inter alia, notes that

«a finding of a violation of Article 14 on grounds of difference in treatment of similar groups without objective and reasonable justification can only give rise to one method of redress: levelling “up”, namely, an extension of the more favourable treatment to all persons in a similar situation. Levelling “down”, that is, removing the preferential treatment from those who had hitherto been eligible for it, is not permissible under the Convention. The advances achieved in human rights protection cannot simply be brushed aside. The Preamble to the

292When analyzing the empirical material, let us not forget that the analysis of arguments based on the absurdity of something is mainly of an instrumental nature for us, and the main subject of our study is the search for possible arguments for the formation of a concept of when the law can be applied in principle to relations related to virtual reality, and in which – not.

293See: On the law of treaties [Electronic resource]: Vienna Convention, concluded at Vienna on 23.05.1969 – Access from the legal reference system «ConsultantPlus» (accessed: 12.02.2019).

294Article 31 of the Convention sets forth general rules of interpreting the contracts.

295European Court of Human Rights Ruling of 24.01.2017 «The case of Khamtokhu and Aksenchik v. the Russian Federation (complaints No. 60367/08 and 961/11) [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

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Convention itself establishes an objective of maintenance and “further realisation” of human rights and fundamental freedoms. It is clear in this respect that European protection seeks to promote these rights, and prohibits their dilution on a discretionary basis out of political considerations. Moreover, the implementation of a judgment of the Court should not abolish, restrict or limit existing rights in the domestic legal order, as provided for in Article 53 of the Convention. Any other result of interpretation would be manifestly absurd (emphasis added – V.A.) (Article 32 b) of the Vienna Convention on the law of treaties)».

With regard to the practice of national courts in the Russian Federation and the ECtHR as a whole, as of 17 September 2018296 the legal reference system “ConsultantPlus”, when used in the search criteria for a request “absurd*” (words containing a combination of letters “absurd”, including derivatives of this term) returned 649 results. The “common sense” search criterion returned 488. At the time of the reader’s acquaintance with the materials of this study, these indicators may change. Thus, these terms are used in the texts of law enforcement acts (on the example of the judicial practice of the Russian Federation and the ECtHR, on which the search was focused). Of course, in some cases they are used as a figure of speech, but among the available material there are also logically meaningful examples. Of particular interest are cases in which these words and combinations are used by courts rather than parties to a case. Let us dwell on them in more detail, citing those quotes in which the use of the word “absurdity” and derivatives for the purposes of the study is understandable from the context and without studying the evidence constituting the materials of the case. It should be noted at once that in all other cases not quoted in this paragraph, the absurdity arguments from the entire sample were used by the parties to the case. For ease of reference, the following examples will be given with consecutive numbering.

1) In the Ruling of the Primorsky Kray Court of 23.06.2014, Case No. 33-5131, the court states that

296 Date of the study, which included the collection of practices in this area.

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«...the defendant’s assertion that it is impossible to establish the identity of a person serving a sentence in a penal colony is absurd (hereinafter the word “absurd” is emphasized for the convenience of the reader – V.A.) and calls into question the sentence in a criminal case against this person».297

In this case, “absurdity” is linked to the fact that, according to the current procedure of serving sentences, it is legally impossible to serve a sentence anonymously from legal standpoint – in any cases, and as a matter of fact in any reasonable cases.

2) In the judgment of the Court of Justice of the Jewish Autonomous Region of 13.03.2013 in case No. 4-A-8/2013, the court notes that

«…at the same time, contrary to the applicant’s assertion, it follows from the inspection report dated 20.09.2012 that the director of the company L.S. has been acquainted with the copy of the order to conduct an unscheduled inspection on 03.09.2012 at 12 o’clock, and that she herself has made a corresponding entry in the abovementioned report (pages 9 – 10). Moreover, the correction on the third day of the date has been made and certified by her that, based on the supervisory appeal, L.S. does not deny it. In this connection, the reference of the

latter to the impossibility to establish the date of acquaintance of the audited with the order to conduct the audit due to the correction in the act is absurd».298

Here, “absurdity” can be explained on the basis of the upper level of logical interpretation of the absurd through judgments or statements of facts, between which there is a simple contradiction.

3) In the Decision of the Leninsky District Court of Vladivostok of 18.06.2008 on Case No. 2-228/08 the court states:

«In addition, the procedure for communicating court sentences and subsequent court decisions to subordinate staff for summing up the results, meetings and readings of orders makes the deeds clear and public and does not require any explanation. In addition, the plaintiff Z.’s arguments that he had to avoid meetings with his fellow soldiers were absurd,

297Ruling of the Primorsky Kray Court of 23.06.2014, Case No. 33–5131 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

298See: Resolution of the Court of the Jewish Autonomous Region of 13.03.2013 in the Case No. 4–A–8/2013 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 12.02.2019).

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since the latter had been drafted in a military unit, lived in the location of the unit, served according to the daily schedule – which in itself eliminates the possibility of privacy and avoidance of meetings with fellow soldiers».299

Here, the “absurdity” of the situation, as in the first example, is linked to the fact that, by virtue of both the generally prevailing and normatively settled situation, there is a clear contradiction with the statements made by the participant in the process.

4) As indicated by the court in the Appellate Decision of the Perm Kray Court of 04.02.2015 in the Case No. 33-887,

«…taking into account the abovementioned, the judicial panel does not see any legal grounds to reduce the amount of compensation for moral damage, as the defendant insists in the appeal. Gross negligence in the actions of B. is not established by the court, the defendant did not state the relevant evidence and arguments in the court of first instance, the presence of negligence in the actions of B. in part of the implementation of the transition of the four-lane carriageway is not confirmed by the materials of the civil case, or materials of administrative proceedings. The reference of the defendant to the hood worn on the head of the plaintiff during the transition of the carriageway is absurd and does not indicate gross negligence due to the legal meaning of this concept».300

Based on the high degree of generalization, we can say that the logic of the previous example continues, but here the usual interpretation of the legal concept does not correspond to the usual state of affairs in practice (a hood worn does not in itself exclude the possibility to exercise due diligence when crossing the road).

5) In Decision No. 21-311/2014 of the Samara Oblast’ Court of 26.06.2014, the court states the following:

«References in the complaint to the need to use arbitration and civil procedural law as procedural law when considering this complaint, with the relevant procedures and deadlines,

299See: Decision of the Leninsky District Court of Vladivostok of 18.06.2008, Case No. 2–228/08 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 12.02.2019).

300See: Appellate Ruling of the Perm Kray Court of 04.02.2015, Case No. 33–887 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).