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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.

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§ 3.3. Assessment of the ideas of absurdity through the prism of the concepts of common sense

There are quite a few examples and attempts to place the ideas of absurdity in a certain context. However, we do not see any strict definitions yet. Maybe we should go from the opposite side? Absurdity is usually contrasted to common sense. Perhaps the situation will be clarified by addressing the appropriate philosophical school? Indeed, in a sense, the main purpose of this work is to reflect on and theoretically structure the application of common sense in legal reasoning. The concept of common sense cannot be understood in isolation from its own, according to the working assumption, antonym – absurdity. What is common sense and how it is viewed in contemporary social and humanitarian literature?

The representative of philosophical sciences A.A. Ivin in his textbook “Fundamentals of the Theory of Argumentation” roughly characterizes common sense as “common, inherent to every person sense of truth and justice, acquired with experience”343 and analyzes the use of this concept in the history of approaches to argumentation, including Aristotle,344 Thomas Aquinas345 and later thinkers. From these observations, one can note the characteristic of the views of A. Sheftsbury, who

343Ivin A.A. Fundamentals of the Argumentation Theory: Textbook / A.A. Ivin. – 2nd Edition – M.: Berlin DirectMedia, 2015. PP. 185–186.

344“The appeal to common sense was highly valued in antiquity and went hand in hand with the opposition of wisdom (Sofia) and practical knowledge (Fronesis). This opposition was theoretically developed by Aristotle and developed by his followers to the level of a vital ideal. Practical knowledge guiding human actions is a special, independent type of knowledge. Practical knowledge is aimed at a concrete situation and requires taking into account “circumstances” in their infinite variety. Life is not built on theoretical principles and general principles, it is specific and guided by specific knowledge, assessed from the point of view of common sense”. See: Ivin A.A. Fundamentals of the Argumentation Theory: Textbook / A.A. Ivin. – 2nd Edition – M.: Berlin Direct-Media, 2015. – P. 186.

345“In similarity, Thomas Aquinas, for example, common sense is the common basis of external sentiment and the ability to judge a given, common to all people”. See: Ivin A.A. Fundamentals of the Argumentation Theory: Textbook / A.A. Ivin. – 2nd Edition – M.: Berlin Direct-Media, 2015. – P. 186.

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«...interpreted common sense as an understanding of the common good and, at the same time, as a commitment to the community or society, as natural feelings, humanity and courtesy. Common sense is more of a virtue of the heart than of the mind, which is not just a common virtue, but implies a certain moral and even metaphysical basis».346

In general, it is clear that “common sense” is also a very vague concept, which is likely to be understood only with the help of, apparently, common sense itself. However, we note that in the view given, common sense is linked to “commitment to the community or society” and refers to a moral basis. It is difficult to refrain from a possible addition in the first part – “with [semantic] commitment to the community or society”. The author also mentions the philosophy of the Scottish school and his quote from H.-G. Gadamer in this regard, according to which

«...the concept of common sense concentrates on society: “It serves to guide us in public affairs or public life, when our capacity for reasoning leaves us in the dark”» (emphasis added – V.A.).347

«The philosophy of a healthy human mind in the Scottish school is not only a healing tool against the “sleepwalking” of metaphysics, it also contains the fundamentals of a moral philosophy that truly satisfies the vital needs of society».348 In view of the above quotation, it is difficult to refrain from drawing an analogy according to which common sense paradoxically turns out to be an “unconscious” (in the Jungian sense) of law. It is worth mentioning that moral motives are important in the concept of common sense within the framework of A. Bergson’s ideas, according to which

«...although common sense is related to feelings, it’s a social construct. Feelings put us in some relation to things, common sense guides our relations with people. He is not so much a

346Ivin A.A. Fundamentals of the Argumentation Theory: Textbook / A.A. Ivin. – 2nd Edition – M.: Berlin DirectMedia, 2015. – P. 187.

347Ibid.

348Ibid.

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gift as a constant correction of eternally new situations, work on adaptation to the reality of general principles».349

The conclusion of A.A. Ivin regarding the modern meaning of common sense is also important for us:

«Essential importance is attached to common sense by modern philosophical hermeneutics, which opposes its intellectualization and bringing it to the level of a simple correction: what contradicts common sense in feelings, judgments and conclusions cannot be correct

(emphasis added – V.A.)».350

However, it is this presumption that underlies most of the sources studied, which present the empirical examples of legal reasoning relevant to the research topic.

To conclude the discussion on the common sense concept of A.A. Ivin in this source, it should be noted that it is not sufficiently disclosed for the purposes of this study, although it was quite useful to consider the above judgments. The author notes that

«... common sense is applicable first of all in public, practical matters. It is used to judge not on the basis of general prescriptions of reason, but rather on convincing examples. Therefore, the history and experience of life are crucial for him. Common sense cannot be learned, it can only be practiced. It has a dual, descriptive and evaluative character: on the one hand, it builds on past events and on the other hand, it is a sketch, a project of the future».351

It should be noted that other notions of common sense are also rather vague. They clearly do not allow to build a rational legal reasoning (and legal reasoning cannot be anything but rational), but in some cases, how easy and natural is the conclusion about the lack of common sense or absurdity of any interpretation or action because it does not make sense.

349Ibid.

350Ibid. – PP. 187–188.

351Ibid. – P. 188.

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It is also interesting to address some of the domestic studies, especially since there is little written about common sense as such. Thus, a prominent pre-Revolution follower of the Scottish school of common sense philosophy, Isidor Savvich Prodan, wrote:

«Practitioners do not ask themselves questions about knowledge: what is truth and how it is achieved. Acting according to their innate cognitive instinct, they make fewer mistakes in their activities than other philosophers in their works. Moreover, people of science and practice, who are not familiar with the philosophy of knowledge, make important scientific discoveries; the application of these discoveries sometimes changes the entire social order of life: hence, these discoveries are not misleading. They undoubtedly confirm the correctness of knowledge and thinking among the people who made these discoveries. Particularly brilliant advances have been made by the human mind in the last century in the field of science and technology».352

The author goes on to give examples of how humans have subjugated natural forces and placed them at the service of progress. The author’s further reasoning (and probably demonstration of sanity, at least at first glance) appears quite straightforward:

«In contrast to these rapid advances in natural science and technology, philosophers of the past century often went against common sense and argued about what was causing a smile in people who were strangers to philosophical wisdom. Who is right, philosophers or common sense people? Without answering this question, we will repeat and prove Reed’s idea that philosophy was born much later than the common sense of humanity: people in general reasoned correctly well before the emergence of philosophy. So, for example, mankind thought logically for a millennium before the brilliant Aristotle managed to write the first logic. And now hundreds of millions of people reason logically, not even knowing the words “logic” and not knowing anything about the existence of this science. Consequently, in the mind of these people without their knowledge the logic congenital to them acts. A thousand tribes also speak correctly in their own languages without knowing the rules of grammar; however, these rules, without the speaker’s knowledge, are observed by them. And now there are still hundreds of languages whose grammars have not yet been written. There are already millennia of different arts, although so far none of the philosophers have managed to create a satisfactory art theory, although philosophers still argue even about the very notion of “art”. The same can be said about gnoseology or the theory of cognition. Although philosophers have not yet reached an agreement even on the basic questions of this theory, the very knowledge, undoubtedly, exists and develops in general correctly. Such a discrepancy between practice and the theory of cognition may seem surprising! Is it possible for a person

352 Ibid. – P. 11.

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to act according to the rules without knowing these rules? Is it possible to discover new truths without knowing what the truth is, what is knowledge? Obviously, it is possible if it happens in reality. It is also possible to use a steam engine, steamer, car, telegraph, telephone, electric flashlight without knowing the exact device of these machines, or even the most driving reason. People also use their cognitive activity without knowing its mechanism and device».353

Everything would be fine, but this kind of “common sense” is really a reaction to skepticism that expresses socially constructed paradigm constructs rather than scientific thinking. Meanwhile, there were only a few years left before the understanding of the dependence of the results of knowledge on the language... Separately, it is possible to note that “sanity” of the same A. Korzybski is a concept completely opposite to the “common sense” of the Scottish school.354 Within the framework of general semantics, sanity means a critical attitude to language. In general, it may be noted in this context that the development of the new term the “semantic limits of law”, which may include the notion of common sense, but not necessarily, is a methodologically sound task. The approach we propose on the following pages of the study also resonates with our own interpretation of the absurd in the works of T. Reed, who wrote, in particular, that

«[i]f there are certain principles, as I think there are, which the ‘constitution of our nature leads us to believe, and which we are under a necessity to take for granted in the common concerns of life,’ without being able to give a reason for them; these are what we call the principles of common sense; and what is manifestly contrary to them, is what we call absurd».355

By the way, it should be noted in this context that the eight principles of internal morality of law by L. Fuller can also be considered as criteria of non-absurdity, and their

353Ibid. – P. 12–13.

354See: Korzybski A. Science and Sanity. 5th Ed. 2nd Printing. Brooklyn, New York: Institute of General Semantics, 2000. – 825 p.

355Cited by: Thomas Reid Quotes [Electronic resource] // Goodreads. – [Site]. – URL: https://www.goodreads.com/author/quotes/17381.Thomas_Reid (accessed: 24.02.2019).