Материал: disser_arhipov

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Second, and this is related to the previous criticism, the entire concept of the semantic normativity is based on the presumption of rationality and – implicitly – the conscientiousness of the participants in the legal discourse. The concept may be good for describing a “healthy” situation in law, but it is not sufficient to describe and, moreover, to solve the “pathology” (in Fuller’s sense) of law. In other words, one of the weak points of the concept of semantic normativity is the absence of direct attention to absurdity in the field of law.

At the same time, the concept of the semantic normativity cannot be denied at least in that aspect where it clearly shows what are the consistent and the inconsistent kinds of reasoning in law when it comes to the semantics of propositions or individual words.

However, coming back to one of the initial examples, let us assume that someone claims that Article 105 of the Criminal Code of the Russian Federation can be applied to the player who committed the “murder” of a game character. Let us try to apply the concept of the semantic normativity to such a speech act. Yes, it is a “statement”. However, what is next? Well, we can say that this is not the first statement – then it should be evaluated within the framework of the entire system of previous statements. Then we come to the conclusion that such a statement contradicts the previous speech acts in the system of “statements” and “powers”. Perfect. But does this mean that a new statement that breaks the sequence of the old chain of statements is impossible? In terms of the concept of the semantic normativity, yes. Nevertheless, it is not so from the point of view of real life. Otherwise, for example, we would still have seen instances of legal and legitimate slavery in the countries where it had previously been widespread. And the fact is that a rational normative discourse may well be broken by political will and then changed. But such a willful act may also have its own “semantic boundaries” – the boundaries between absurdity and common sense. It seems that such boundaries should be sought, however, not

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directly in deontic logic, but in the fields of knowledge that are directly concerned with the social construction of reality.383

§ 4.2. General remarks on the semantic limits of law, exclusive positivism and deontic logic

As can be seen, the concept of the semantic limits of law is equidistant from normative studies, focusing on deontic logic, and from jusnaturalism, which focuses on the relationship between law and values. The semantic limits of law are not related to logic as such, nor to values as such, but to what is “in the middle”, to the semantics in the broad sense. Note that in the historical and contemporary literature on deontic logic, there is no direct trace of the methodology for determining specific semantic relations between the sign and the signified in that sense which forms the subject matter of this research. This literature is focused more on the study of the internal relationships of the system of signs. In other words, the deontic logic in the current edition mostly does not allow explaining why, from the standpoint of substantial and not formal criteria, when interpreting the term “murder” from Article 105 of the Criminal Code of the Russian Federation, we mean a certain range of “real” life phenomena, but do not include in this circle “murders” occurring in computer games. Modern normativism as a “pure legal theory” takes this question beyond the boundaries of legal science, although it is semantic problems that constitute a significant part of the sharp contradictions of legal practice at current stage.

For example, the approach proposed by E.V. Bulygin is undoubtedly deep, interesting and consistent. At the same time, the scientist remains loyal to scientific positivism in the sense that the questions of substantive semantic principles which are

383 For the sake of justice, the criticism received by the author from his Anglo-American reviewers does not allow to resolve the problems of this research. See e.g.: McIntyre J. Making the Law Explicit: The Normativity of Legal Argumentation. By Matthias Klatt // The Cambridge Law Journal. – 2011. – Vol. 70. – No. 3. – PP. 674–676.

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determined by socio-cultural context are bracketed out by the pure theory of law (as a side effect of which we are likely to encounter a limited scope of clear literature on the legal interpretation methodology). A good example is the argument of E.V. Bulygin with regard to the example of R. Dworkin with Tom and Tim, who signed the possibly a “blasphemous” treaty on Sunday. As E.V. Bulygin develops the example:

«Let us assume that the legislature has passed a law according to which “sacrilegious contracts are invalidated from that time onwards”. Public opinion was divided on the question of whether a contract should be considered to be sacrilegious solely on the grounds that it was signed on Sunday. It is known that the majority of legislators did not think about this issue during the voting and that their opinions were divided as to whether the new law should be interpreted in this way. Tom and Tim signed the contract on Sunday, and now Tom is suing Tim for recognition of the validity of the contract, which in turn challenges Tim... The judge has to decide whether the contract is valid, and for this he must determine whether the proposition “The contract signed by Tom and Tim is sacrilegious” is true... In order to establish the truth of the sentence “The treaty signed by Tom and Tim is sacrilegious”, he has to find out only one thing: whether the contracts signed on Sunday have the property to be sacrilegious, that is, whether the extensional of the predicate “sacrilegious” includes the concepts of “contracts signed on Sunday”. It must be said that in our example, the predicate “sacrilegious” is vague, which places all cases of contracts concluded on Sunday in the area of penumbra (highlighted by me - V.A.). According to this hypothesis, the judge is not in a position to ascertain whether such contracts are sacrilegious or not, since there is no established use of the word in the language of the relationship between the two expressions. In such cases, the judges must decide whether to include the contracts signed on Sunday in the “sacrilegious” predicate or not. Suppose our judge decided that such contracts were sacrilegious. In doing so, he does not approve any true or false proposal, but rather provides a (partial) definition of a “sacrilegious” predicate».384

As the author concludes his further reasoning,

«...difficulties in solving the problems of subsumption (both individual and generic) stem from two different sources: lack of knowledge of facts (gaps in knowledge) and semantic

384 Bulygin E.V. Limits of Logic and Legal Reasoning / Bulygin E.V. Selected Works on the Theory and Philosophy of Law. Transl. from English, German, Spanish / under the scientific ed. by M.V. Antonov, E.N. Lisanyuk, S.I. Maximov. – St. Petersburg: Alef–Press, 2016. – P. 157–158. Since it seems to be almost impossible to find an already published translation of this work into English in Russia (even by means of the Internet), hereinafter the author’s translation is included hereinafter. This article is a follow-up to E.V. Bulygin’s discussion with N. McCormick and his views in the following publication: MacCormick N. Legal Deduction, Legal Predicates and Expert Systems // Revue Internationale de semiotique juridique. – 1992. – Vol. 5. – P. 181–202.

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uncertainty or vagueness of used predicates (gaps in recognition or cases of penumbra)

(emphasis added – V.A.). The idea that the vagueness of any predicate may require a judge to make a decision is undoubtedly correct. However, as McCormick correctly points out, this cannot be considered an argument against the deductive nature of argumentation in law. Even if decision making sometimes forms part of the task of establishing the assumptions of such reasoning, this does not preclude the possibility of reconstructing that reasoning from a premise to a conclusion in the form of a deductive conclusion. This whole question has nothing to do with law (emphasis added – V.A.) and, in particular, reasoning in law, but is a feature of any applied logic».385

The above argument, of course, looks consistent and logical. One problem: in a real situation, implicit premises would be much more diverse. For example, Tom and Tim could be Jews or Muslims in Christian society, which, however, at the constitutional level proclaimed the principles of equality, regardless of religious affiliation. For them, the contract concluded on Sunday could not be blasphemous due to the fact that the conclusion of the day of the week (relatively speaking, not on Friday and not on Saturday). However, this is not the main objection. In fact, there are three main objections.

The first one is based on the approach of L. Fuller, who never (to the author’s best knowledge) received a direct answer to his assertion that,

«Paradoxically, the positivist who insists that all true law is explicitly made is the beneficiary of this silent exclusion; without it his “law” would become too chaotic a thing to offer any anchorage for his faith».386

The second one is based on a view that goes back to legal realism, according to which the real “law in life” is in fact critically determined by semantics. Clear constructions of legal reasoning that follow from deontic logic, although they are formally really clear, often provide little instruments (or do not give any) for the resolution of legal conflicts and collisions in the area of the penumbra. However, metaphorically speaking,

385Bulygin E.V. Limits of Logic and Legal Reasoning. P. 161.

386Fuller L.L. Anatomy of the Law (in Russian) / Transl. from English by V.V. Arkhipov // Russian Yearbook of Law Theory. – 2009. – No. 2. PP. 313–314.

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jurisprudence in the XXIst century represents, relatively speaking, one large area of the penumbra.

The third is partly related to the second and consists in the fact that the pure theory of law is one of the possible models of theoretical reconstruction of law, but this model is more idealistic in its essence than integrative or realistic concepts of law, which, however, also represent certain models.

In this context, it is particularly important to recall what H. Hart said in the discussion with L. Fuller, key to the development of philosophy of law, though this aspect of their discussion remained largely undeveloped. According to the British thinker, the application of the law «to specific cases… cannot be a matter of logical deduction»,387 because «logic does not prescribe interpretation of terms; it dictates neither the stupid nor intelligent interpretation of any expression. Logic only tells you hypothetically that if you give a certain term a certain interpretation then a certain conclusion follows. Logic is silent on how to classify particulars – and this is the heart of a judicial decision (emphasis added – V.A.)».388 For our part, let us add that this is not only the essence of the judicial decision, but also of law in general, especially now, in the face of a change in the general civilizational paradigm and universal digitalization of society.

It should be noted that H. Hart’s approach to the open texture of legal norms based on reducing the problem to the level of judicial discretion and teleological interpretation (and, as a consequence, to the problem of weighing the values) was quite good for its time, but now it can be considered as a kind of elegant departure from the answer on the merits. Well, this is the area of values and judicial discretion, but how do we explain these processes then? The main hypothesis of the present work is actually to identify at least one basic theoretical principle of law in this context and to justify it. Such a result, we believe,

387Hart H.L.A. Positivism and the Separation of Law and Morals / Transl. into Russian by V.V. Arkhipov // Philosophy and Language of Law / Herbert Lionel Adolphus Hart. – Moscow: Canon+ ROOI «Rehabilitation», 2017. – 384 pp.

388Ibid.