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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.

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and incorrect usage of concepts».370 Hence, according to the scholar, it follows from it, first, the existence of a normative link between the meaning of a concept and its use, and second, the need to clarify the conditions of semantic normativity, since the mere statement of such conditions is not enough.371 М. Klatt suggests that four main approaches to defining the semantic normativity conditions be considered and integrated:

interpretation of semantic normativity through notions of truth, first of all, on the basis of the correspondent theory of truth;

interpretation of semantic normativity through the notion of normativity of relations between concepts (“grammatical sentences” by L. Wittgenstein);

linking semantic normativity to general rationality as interpreted by J. Raz, who believed that rationality is the ability to see the normative meaning of facts and act accordingly;

the theory of speech acts by J. Searle, according to which speaking using language is a form of behavior that implies following the rules.372

M. Klatt builds the methodology of integration of these approaches to substantiate semantic normativity on the basis of R. Brandom’s work “Making It Explicit. Reasoning, Representing, and Discursive Commitment”.373 The main position of R. Brandom in the interpretation of M. Klatt is that our explicit discursive social practices have implicit rules that allow us to assess speech acts as right and wrong, and his methodological approach involves a combination of normative pragmatics and semantics of conclusions through a general concept of making something “being made explicit”, which leads to the

establishment of the “deontic scorekeeping” model, while this methodology is

370Ibid. P. 53.

371Ibid.

372Ibid. P. 53.

373Brandom. R.B. Making It Explicit. Reasoning, Representing, and Discursive Commitment. Harvard University Press, 1994. – 741 p.

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reconstructed as follows.374 In the context of normative pragmatics, it is emphasized that people assess and act on the basis of reasons and, as a result, implicit norms are institutionalized in social practice. The context of the semantics of the conclusions emphasizes that the correctness of the use of propositions depends on the essential conclusions, which are not limited only to formal and logical connections (the conclusion that “Munich is located to the south of Hamburg”, made from the statement that “Hamburg is located to the north of Munich”, is semantically correct due to the meanings of “South” and “North”).375 When using statements in this case, the speaker naturally takes into account the conditions of pronouncing the statement and the consequences of the statement, the systematic nature of both determines the semantic normativity. Then, in the part of the model of deontic scorekeeping, linguistic practice for determining normativity is based on two main deontological statuses for assessing the correctness of the statement – “commitment” and “entitlement”. By saying some statement, we assume an implicit commitment – by saying one thing, we will have to say the other one, while considering the first thing said – or similarly “entitle” the other actor.376

Further the author considers possible criticism of the concept of the semantic normativity from the positions of S. Kripke and W. Quine, then places it in the context of H. Hart’s ideas about “simple” and “complex” cases and passes on to the example of the application of argumentation, based on the developed concept. Let us dwell on it in more detail, preliminarily marking another key parcel. According to M. Klatt, semantic skepticism of supporters of the theory of language games and similar “languageanarchists” is not justified for two reasons. First, one cannot draw conclusions about discursive practice in general by focusing on individual actors and the specificities of their

374Klatt M. Semantic Normativity and the Objectivity of Legal Argumentation. P. 54.

375Already now we should note that the concept of M. Klatt does not imply that specific ways of defining the concept of “south” and “north” should in themselves obey or obey any special rules. To be precise, this issue is not addressed. What if we say that “the North is in Munich from Hamburg”? Or, to give a more realistic example, would you say that “south” and “north” mean financial well-being and financial decline respectively (without regard to the real indicators, just as an example)?

376Klatt M. Semantic Normativity and the Objectivity of Legal Argumentation. PP. 54–57.

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individual practice, which is detached from inter-subjective communication. Second, «epistemic access to meaning consists in making implicit rules explicit», what R. Alexy called a linguistic-analytical discourse. Such a discourse is a kind of normative discourse, but its reasoning is limited to special semantic arguments.377

«The topic of this special discourse is the semantic structures of meaning that can be analysed using Brandom’s terminology. It is the part of the function of this discourse to change and to improve those semantical structures and thereby the meanings of concepts. However, this future-directed task, which can result in the fixing of a new meaning, is to be carefully distinguished from the past-directed establishment of existing inferential and normative structures qua making them explicit. The establishment and the fixing of meaning remain two distinguishable forms of the semantic-analytical discourse».378

The author further suggests the word usage rules method, which R. Alexy suggested to use as semantic arguments for internal justification of legal decisions, namely to take into account the properties (P) of the object (x), which must be satisfied in order to comply with the legal concept (C). It results in the following formula: (x) (Px → Cx).379

М. Klatt emphasizes the importance of making the word usage rules explicit. The author sees false assumption on inferential relations associated with a concept as the main category of transgression. Such a false assumption is possible in the context of four possible statements according to R. Brandom’s classification (here it is implied that, in the semantic discursive practice, statements can be connected either with the present or with the future and take the form of logical obligations or entitlements): conditional obligation, consequential obligation, conditional entitlement and consequential entitlement. Note that in the context of our work, false assumptions related to the specified semantic and deontological statuses may well correspond to the notions of absurdity in the broad sense of the word. A direct example given by M. Klatt relates to the application of the concept of

377Ibid. P. 59.

378Ibid. P. 59–60.

379Ibid.

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“gang” (this translation is used for simplicity, in the initial context it may be a similar concept to the concept of “associates” from the criminal law) in § 244 I No. 2 of the German Criminal Code. This norm imposes stricter liability on those who have committed crimes in a gang. The earlier decision of the Federal Supreme Court of Germany found that the existence of a “gang” required the agreement of at least two subjects to commit a crime in the future.380 Critics, however, objected that at least three people were needed. Their reasoning was based on the fact that, according to the social and linguistic practice, three people are needed. The author believes that we can now easily identify the essence of the dispute – it is the rule of using the word “gang”. If we imagine, as noted by M. Klatt, that this concept is related to the quality of P2 (two are sufficient for the gang), which is conditional on the gang’s concept of G, the opposite point of view is based on the quality P1 (no, it takes at least three for the gang). After that, the author concludes:

«It is assumed (emphasis added – V.A.) here that the best arguments are in favour of the opinion that the implicit norms of the practice of making assertions assess the use of the concept gang as correct only if at least three persons committed the offence. Therefore, the former jurisdiction of the German Federal High Court transgresses the semantic limit of conditional commitments by assuming an incorrect property-catalogue P2 in the word usage rule. For an individual a (criminal combination of two persons), this semantic error leads to an

incorrect affirmation of the property and therefore to a semantically erroneous application of the concept gang to a” ».381

On our part, we dare to note that the approach of M. Klatt is accurate in form, and probably allows to resolve the problems posed by the author himself. However, despite the similarity between certain terms used, this approach does not provide sufficient instruments to resolve the tasks of our research. In particular, we still cannot obtain enough clarity to the question of why we should prefer one approach over the other in respect of assigning certain values to concept-words, and why we cannot change this approach

380Ibid. P. 63–64.

381Ibid.

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arbitrarily (which has been repeatedly observed in the history of law in Russia and abroad

– not just by the example of a “gang” or not just only by this example, but in many other cases).

To what extent, however, the theory proposed by M. Klatt can be correct and applicable for the purposes of resolving that very problem which is posed in this paper? It allows us to construct a formal way of thinking about the semantics of normative prescriptions, and also demonstrates that the interpretation of legal texts depends on the implicit rules.382 But seriously, what are its significant limitations for the purposes of reconstruction of the criteria of absurdity in law connected to simulation in the media space, and why is it insufficient to address the issue of the semantic limits of law in the conditions of the medial turn?

First, the concept of the semantic normativity does not clarify what implicit normative discursive practices themselves are or how they should be defined. Brandom’s idea of “statements” and “powers” that “bind” discourse participants (i.e., “speakers”) seems to be methodologically sound, but the problem with these approaches is that the way in which such speech acts are performed may itself be implicitly conditioned by social reality.

382 The same approach is taken by the author of the present study in the course “Legal Interpretation”, a brief summary of the main principles of which was reflected in one of the publications on the problems of interpretation of personal data legislation. «This approach to the interpretation of law is based on the concept of “pragmatic (realistic) theory of legal interpretation”, which is used by the author when teaching the course “Interpretation of Law” at the Faculty of Law of St. Petersburg State University. This concept is based on the generalization of legal methodology developed by thinkers mainly in the XXth century and is based on the following assumptions: (1) the fact of social life is that the subjects of legal interpretation have different interests; (2) methodology of legal realism (O.W. Holmes Jr., K.N. Llewellyn, J. Frank, etc.); (3) the idea of “morality of law” by L.L. Fuller in the part of functional analysis of the professional activity of lawyers; (4) the concept of “internal point of view” by H. Hart – in order to understand how law really functions it is necessary to consider the attitude of the subjects of law; (5) the concept of social construction of reality by P. Berger and T. Luckmann through communication and, actually, interpretation; (6) objectivity of social conflicts – “people’s unfriendly communicability” by I. Kant. Thus, various subjects of interpretation of law, pursuing their interests and sometimes being in conflict relations, by interpreting the law carry out social construction of reality. This concept claims to be realistic in the sense that it implies skepticism about the somewhat idealistic idea of “comprehensiveness” and “objectivity” as determining principles of legal interpretation, preferring the validity of conclusions (arguments) and certainty of conclusions”. See: Arkhipov V.V. Personal Data as Non-Material Values (or There is Nothing More Practical Than a Good Theory) // Zakon. 2018. No. 2. P. 56.