Материал: disser_arhipov

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– intentionalism, i.e. the attempt to define the intention of the legislator and to use it as a fundamental principle to define the content of law, even if there are some discrepancies with the textual expression of a norm.

As L. Jellum points out, the three main directions for the critique of intentionalism are as follows. First, there is doubt that there is only one legislative intent (i.e. a complex process of reconciling conflicting interests in the drafting of a bill), and even if there is one, judges are unlikely to be able to establish it precisely. Second, the participation of judges in determining the legislator’s intent may be considered a violation of the principle of separation of powers. Third, unlike intentionalism, textualism in itself serves as a deterrent to the “activism” of judges.320 Thus, textualism is very similar to that kind of practice of interpreting law that is also customary for the Russian reality, although it may differ in some and possibly insignificant details caused by constitutional legal differences.

L. Jellum sees the doctrine of absurdity as synonymous to the Golden Rule doctrine and as an exception to the canon of interpretation of the commonly used meaning of the word (“plain meaning canon”). The essence of the doctrine of the Golden Rule is that in all cases where adherence to the rule will lead to absurd (sic!) or contrary to, conventionally speaking, common sense results, it is necessary to depart from the literally common meaning of the word. There are at least two known cases of more or less direct reflection of such an approach in the UK precedents, and in both cases the wording belongs to Lord Wensleydale. Thus, in the case of Becke v. Smith (1836), he noted:

«It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention321 of the legislature to be collected from the statute itself, or leads to any manifest

320Ibid. PP. 920–921.

321In Russian version we intentionally used a translation that places the approach in the context of Russian legal terminology to highlight similarities in some detail (i.e. translating “intention” as «воля»).

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absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further».322

Lord Wensleydale subsequently clarified the wording in Grey v. Pearson (1857) as follows:

«[I]n construing statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity (emphasis added – V.A.) or inconsistency with the rest of the instrument, in which case the grammatical and

ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but not farther».323

This rule is usually considered in two possible interpretations: narrow,324 when it comes to formal contradictions of the text, and the broad,325 when it comes to contradiction with moral or public policy principles.326 The golden rule (of interpretation, not morals) in the history of legal thought and moral philosophy was interpreted also rather narrowly and was mainly connected with the analysis of the moral bases of law or other ways of reconstruction of the connection between law and morality in specific cases. 327 As L. Jellum briefly concludes,

«[t]he absurdity doctrine allows judges to ignore the ordinary meaning of statutory text when that ordinary meaning would lead to absurd outcomes».328

322 Becke v Smith (1836) 2 M&W 195, цит. по: Golden Rule of Interpretation / Construction [Electronic resource] // Law Aids. – [Site]. – URL: http://lawaids.blogspot.com/2010/05/golden-rule-of-interpretation- and.html?_sm_au_=iVVQtSjTJFHSQ3fP (accessed: 24.02.2019).

323Grey v. Pearson (1857) 6 HL Cas 61, 106; 10ER 1216, 1234, cited by: Golden Rule of Interpretation / Construction [Electronic resource] // Law Aids. – [Site]. – URL: http://lawaids.blogspot.com/2010/05/golden-rule-of-interpretation- and.html?_sm_au_=iVVQtSjTJFHSQ3fP (accessed: 24.02.2019).

324See: R v Allen (1872).

325See: In re Sigsworth (1935).

326Here we should note that these two classical approaches correspond to our proposed classification of the absurd into syntactic and semantic, but do not take into account two levels of semantic absurdity.

327See: Duxbury N. Golden Rule Reasoning, Moral Judgment, and Law // Notre Dame Law Review. – 2009. – Vol.

84.– Issue 4. PP. 1529–1605.

328Jellum L.D. But That Is Absurd! Why Specific Absurdity Undermines Textualism. P. 921.

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In the U.S., the history of judges’ attention to absurdity began in 1868 with the case United States v. Kirby.329 The defendants, who served in the local sheriff’s office, arrested a postman wanted for murder. At the same time, however, there was a rule that it was prohibited to knowingly and intentionally obstruct or hinder the delivery of mail or the activities of coachmen or crews. It turned out that the defendants had literally broken the law, but the court, in fact, for the first time, applied the doctrine of absurdity and noted: «All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter».330 It is noteworthy that the judge also quoted S. Puffendorf, who referred to the example of Bolognian law, according to which, one «whoever drew blood in the streets should be punished with utmost severity», and which, however, was not applied in practice to the case of a surgeon who opened up a vein of a man who fell on the street for the purpose of providing medical care.331 The author, however, stresses that “drawing blood” can be regarded as a combination of two different meanings, and therefore this example does not necessarily imply absurdity – an example of this can be considered strictly in the context of conventional textualist positions.

As the most influential case of the application of the doctrine of absurdity, however, the author considers 1892 Holy Trinity Church v. United States decision already mentioned,332 in which the court applied a fairly broad interpretation of the absurd, linking it to the legislator’s intention, ruling that the prohibition on hiring foreign workers could not apply to clergy, although literally the activities of the pastor, who had become the main

329 United States v. Kirby, 74 U.S. 482 (1868) [Electronic resource] // Justia. – [Site]. – URL: https://supreme.justia.com/cases/federal/us/74/482/ (accessed: 24.02.2019).

330Cited by: Jellum L.D. But That Is Absurd! Why Specific Absurdity Undermines Textualism. P. 924.

331Ibid.

332Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) [Electronic resource] // Justia. – [Site]. – URL:

https://supreme.justia.com/cases/federal/us/143/457/ (accessed: 24.02.2019).

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“figurant” in the case, could be regarded as such. In doing so, the court ruled that such an interpretation should apply to all such cases, in which the main issue is “word labor”.333

The history of the doctrine of absurdity was interrupted in 1940 by the development of the intentionalist doctrine, but it was resumed in 1986 upon the assumption of office by Judge A. Scalia, and at the time of the publication was distributed in lower courts, although it was not dominant in the acts of the U.S. Supreme Court, which addressed it only five times.334

The special advantage of the work of L. Jellum in comparison with other publications on the topic of the “Golden Rule”, textualism, absurdity and similar notions from other legal cultures is that the author does not try to mask the problem of ambiguity of the term “absurdity” for the reasoning only about the moral grounds of law. The author notes that absurdity is not defined consistently in jurisprudence – on the contrary, judges prefer to define absurdity by simply enumerating specific cases that seem absurd to them (note a certain similarity with modern Russian practice).335 As J. Manning pointed out,

«[s]tandard interpretive doctrine (perhaps tautologically) defines an ‘absurd result’ as an outcome so contrary to perceived social values that Congress could not have ‘intended’ it [in a statute]».336

L. Jellum stresses that even in the case that is interpreted as a precedent for such an exception – implying Holy Trinity Church v. United States, 143 U.S. 457 (1892) – the U.S. Supreme Court has only noted that a meaning that conflicts with the will of the legislator is absurd, but has no further revealed the notion of absurdity in the law. As a rule, the Supreme Court also equals the notions of “absurd” and “odd” to each other, but among

333Jellum L.D. But That Is Absurd! Why Specific Absurdity Undermines Textualism. P. 926.

334Ibid. P. 926–927.

335See e.g.: Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 470-71 (1989) (Kennedy, J., concurring) [Electronic

resource] // Justia. – [Site]. – URL: https://supreme.justia.com/cases/federal/us/491/440/ (accessed: 24.02.2019). 336 Manning J.F. The Absurdity Doctrine // Harvard Law Review. 2003. Vol. 116. P. 2390.

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some judges there is also a sharper definition of the absurd as «“lead[ing] to results so gross as to shock the general moral or common sense».337 The author concludes that the first approach to absurdity may seem narrow and controversial in terms of the concept of the legislator’s will (“congressional intent”), while the second may open the door to nontextual considerations in interpreting the law too broadly. Accordingly, the truth must be somewhere in the middle. But the fact remains, notes Jellum, that jurisprudence cannot determine where exactly this truth lies,338 and judges simply refer to other cases where someone has already referred to absurdity and apply the “I’ll know when I see it” approach.339 In the following pages of his research the author draws attention to two possible types of absurdity in law – specific and general.340 Specific absurdity exists where an particular interpretation of a particular case would be absurd.341 General – where any interpretation of the relevant act would be absurd.342 This classification is interesting in itself, but it also does not shed much light on the problems of the nature of the absurd. Especially, in the key that is necessary to solve the problems of revealing absurd interpretation or application of law in the conditions of the medial turn.

337Jellum L.D. But That Is Absurd! Why Specific Absurdity Undermines Textualism. P. 921.

338This is what explains our reference to theoretical sociology in this study.

339Jellum L.D. But That Is Absurd! Why Specific Absurdity Undermines Textualism. P. 922.

340Ibid. PP. 927–932.

341See e.g.: Ohio Division of Wildlife v. Clifton. The Court found it absurd to impose a penalty for mistreatment of an

animal on a person who had saved such an animal from imminent death and hosted it. Cited by: Jellum L.D. But That Is Absurd! Why Specific Absurdity Undermines Textualism. PP. 927–932.

342 See e.g.: Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, Inc. The Court found the rule that it was absurd that literally “an appeal may be lodged at least seven days after the decision was rendered”, recognizing that “less” means “more”, otherwise it would result in a waiting period and an indefinite period of time for appeal. Cited by: Jellum L.D. But That Is Absurd! Why Specific Absurdity Undermines Textualism. PP. 927–932.