Материал: disser_arhipov

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violation – as a proof of absurdity.356 In general, for the purposes of this study, common sense in law is seen as a kind of implicit rationality of law that is assimilated by the subjects of legal activity in the process of professional socialization within a particular legal order. Representatives of philosophical sciences note that “an arrogant attitude to common sense, ‘folk psychology’, and thus to the natural language is contraindicated to the philosopher, because it has accumulated centuries of practical experience in all our ‘philosophical ontologies’ are somehow tied to the natural language”.357 It appears that this opinion can be extrapolated to the field of jurisprudence.

§ 3.4. Preliminary conclusions on qualities and kinds of absurd in interpretation and application of law

The methodological approaches analyzed so far do not yet allow making any clear conclusions. However, let us try to make a generalization. What do we know about absurdity by now?358

First, “absurdity” in law may relate to the result of legal interpretation. The process of interpretation of legal text ends with re-construction of legal norm. Such a reconstruction presents the result of interpretation that in some cases can be “absurd”.

Second, “absurdity” is something bad, absurdity in law shall be avoided. An absurd result may be unjust. For instance, one of the main issues of interpretation of law according to A.G. Karapetov is: “Can court give such an interpretation to a fairly clear

356It would be wrong to say that absurdity is not a legal category. The sociological and sociolinguistic fact is that absurdity is more than a legal category!

357“The Realistic Turn in Modern Epistemology, Consciousness Philosophy and Science Philosophy? Materials of the Round Table / V.A. Lektorsky, B.I. Pruzhinin, D.I. Dubrovsky, D.V. Ivanov, G.D. Levin, A.S. Karpenko, E.A. Mamchur, S.V. Pirozhkova, A.V. Rodin, N.M. Smirnova, E.O. Trufanova, E.L. Chertkova // Problems of Philosophy. – 2017. – No. 1. – P. 11.

358Within this process, we will refer to certain views provided in his time by A.G. Karapetov, who is the author of one of the main Russian monographs related to the issues of legal interpretation, although the name of this book does not mention “interpretation” directly. See: Karapetov A.G. Struggle for Recognition of Judicial Law–Making in European and American Law. Moscow: Statute, 2011. [Electronic resource]. – Access from the legal reference system «ConsultantPlus».

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norm of a law that would blatantly contradict to its literary meaning in those cases where the otherwise would lead to absurd and unjust results?359

Third, however, the previously mentioned point of view is not universal or, at least, does not mean that law cannot or shall not be applied. As A.G. Karapetov mentions in respect to the history of French jurisprudence, “it has become a commonplace in research to consider that ‘even if law is thousand times absurd, it shall be applied literally nevertheless’”.360

Fourth, absurdity comes into contradiction with common sense and reason (rationality). Thus, however, “a gap emerges in a case where literal meaning of law leads to clearly absurd conclusions and common sense requires considering not real letter of the law, but such a regulation that would be established by a reasonable legislator”.361

Fifth, what is interesting, it may happen in quite the contrary way: by using of the majority of the interpretation methods, including the logical one, we can reach the results that are formally not absurd at first glance, but “actually” are absurd, and cannot be applied in such a manner.

Sixth, the results of interpretation that are formally not absurd, but are “actually” absurd, may be connected to the concepts of justice and/or public morality, and presuppose shocking or outrageous contradiction or disproportionality to certain moral ideals and principles, but this is not a necessary feature at all.

Therefore in general we can conclude that absurdity (at least within the context of the present work) – is a quality of the result of legal interpretation and/or application of law. That being said, such kind of absurdity which is connected to the contradiction to,

359Karapetov A.G. Struggle for Recognition of Judicial Law–Making in European and American Law. Moscow: Statute, 2011. [Electronic resource]. – Access from the legal reference system «ConsultantPlus». P. 1.

360Ibid. P. 10. The author cites Laurent from the following source: Caenegem R.C. van. An Historical Introduction to Private Law. – 1992. – P. 151.

361Ibid. P. 89. Here A.G. Karapetov cites the following source: Enneccerus L. Course of German Civil Law (in Russian). Vol. 1. Half–Volume 1: Introduction and General Part. М., 1949. PP. 191–192.

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conventionally speaking, common sense and not morality, cannot be explained by logic, grammar or by them alone, because such an absurdity derives from the concepts of socially significant objects determined by socio-cultural context. In the case of this kind of absurdity, we have to study the correspondence of the conclusions to public morality, justice or, in the light of this paper, something else. What we do in this research is an attempt to identify this “something else”, because moral discourse is not enough to rationally justify absurdity of certain cases of interpretation and application of law in the medial turn. Summarizing all the previous reasoning, it should be noted that the type of absurdity we are interested in reflects a fundamental contradiction to common sense as the implicit rationality of law. This contradiction is expressed in the application of “real” and “serious” law to the closed game simulacrum, including virtual reality, in that particular aspect which does not imply any consequences (interpreted in the light of the works of J. Huizinga and E. Castronova) for the social reality of everyday life, and therefore has no inter-subjective social significance. This kind of absurdity constitutes “an alternative to the accepted [common] sense (countersense)” (A.P. Ogurtsov)362 in law.363

§ 4. Reconstructing the semantic limits of law with the help of deontic logic: an experience of reconsideration

An attempt to link the notions of the semantic limits of law (literally) with a kind of normativity is known to the philosophy of law, but, as we shall see further on the example of the approach of M. Klatt, based on the fundamental works of R. Brandom, they concern

362Ogurtsov, A.P. Absurd [Electronic resource] // Electronic Library of IF RAS. New Philosophical Encyclopedia. - [Site]. - URL: https://iphlib.ru/library/collection/newphilenc/document/HASHe586d0704b972adec8eae5 (accessed: 11.09.2019). At the same time, the use of the term “absurd” in relation to social reality is ambiguous. See e.g.: Antonova, I.B. “Absurdity and Around”: Construction of a Typological Model // Vestnik of Russian State University of Civil Engineering. Series: Political Science. History. International relations. – 2014. – No. 1 (123). – PP. 26–35

363А. Marmor interprets the absurdity not as a sign of falsehood of the prescriptive statement, but as a proof that such speech act did not take place (with regard to the asburd value, we will add in the context of the study). See: Marmor A. The Pragmatics of Legal Language // Ratio Juris. – 2008. –No. 4. – P. 450.

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mainly the syntactic contradictions and, unfortunately, also will not allow to achieve sufficient clarity in clarifying the semantic absurdity of the “deep” level. The main disadvantage of this approach is that it still does not reveal the nature of the semantic normativity of law from the standpoint of relations between concept-words and world, but it also has a significant advantage – it allows justifying the implicit normativity of ideas about the semantic limits of law. We emphasize that the ideas reflected in the work that is the subject of the subsequent analysis, the author of this study came to the ideas before familiarizing himself with them and based on several other methodological positions (not from the “early”, but from the “late” Wittgenstein), but hence the more significant is the general methodological approach.

§ 4.1. Critical overview of the theory of the semantic normativity by Matthias Klatt

The scientists who proposed the development of the idea of semantic normativity have made worthy efforts to clarify the semantic limits of law even in the interpretation, which itself does not allow to reconstruct the necessary semantic connection, – M. Klatt, author of the book “Making the Law Explicit. The Normativity of Legal Argumentation”

(2004, 2008),364 tried to understand the problem by continuing the German approach to law as a rational discourse, but also by referring to the philosophy of language. The main points of his monograph were presented in a concise and illustrative manner in the article «Semantic Normativity and the Objectivity of Legal Argumentation», awarded the Young Scholar Prize of the International Association of Philosophy of Law and Social Philosophy in 2003,365 and we will take it as the main text for analysis.

364Klatt M. Making the Law Explicit. The Normativity of Legal Communication. – Oxford and Portland, Oregon: Hart Publishing, 2008. – 303 p.

365See: Klatt M. Semantic Normativity and the Objectivity of Legal Argumentation // ARSP: Archiv fur Rechtsund Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy. – 2004. – Vol. 90. – No. 1. – PP. 51–65.

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The author asks two basic questions. First, how can the idea of transcendental to the context of objectivity [law] be brought into harmony with the existing pluralism of language games and concepts of world? Second, how does the general idea that meaning emerges in the conventional practices of the language community, perhaps without resorting to “common sense truisms” of Quine?366 He introduced these two questions with a foreword that the notion of a legal text as a circumstance determining the content of a legal rule should be preceded by the notion of “objectivity of the meaning” of such a rule.367 While sharing the relativistic view of the meaning of words, it is nevertheless difficult to disagree with the author’s criticism of the schools of legal realism and critical legal studies, which, on this basis, lead us to the fact that the meaning of a normative instrument becomes «dissolve[d] into a multitude of language games and relativistic interpretations that stand opposed to each other uncomprehendingly».368 М. Klatt believes that approaches that are relativistic in this sense are erroneous, and he develops his arguments as follows.

The author stresses that

«[o]ne central claim… is that the practice of attributing [words and propositions with] meaning entails that the meanings of concepts bind their usage. The concept of semantic limits is a normative concept. Therefore, a concept of meaning has to be normative, and its analysis has to spell out the conditions of correct usage of words or sentences».369

М. Klatt notes that the concept of normativity is based on the presumption that it is impossible to say anything meaningful unless we allow that the words can be misused. Based on this premise, the author proposes a “basic thesis of semantic normativity”, which reads as follows: «There is an intersubjectively valid way of distinguishing between correct

366Ibid. P. 52.

367Ibid. P. 51.

368Ibid.

369Ibid. P. 52. M. Klatt refers to J. Coleman to support his position, see: Coleman J. The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. – Oxford, 2001. – P. 175.