Marcin Matczak (Warsaw University - Faculty of Law and Public Administration) has posted Argumentum Ad Absurdum and the Rational Legislator Assumption – Critical Analysis on SSRN. Here is the abstract:
The aim of this paper is to analyse the nature and structure of ad absurdum arguments (AADA) used in courts' statements of reasons. I particularly attempt to conclude which of the two possible grounds for lawyers applying AADA is the most consistent and thus more convincing. The first of these grounds, which in this paper I call traditional grounds, bases the application of AADA on the rational legislator assumption. According to these grounds, when interpreting a legal text a lawyer should reject any absurd interpretation of the text, as a rational legislator would not wish its words to be interpreted in such a way. According to the second grounds, which I call ontological grounds, AADA is an argument that is based on the assumption that a legal text is an instrument for designing a future reality in which a given society is to function, and that this reality, which we could call the "world," is rational. In line with this assumption, a legal text cannot be interpreted in such a way as to lead to: a) states of affairs arising that cannot possibly exist in the known world, or b) states of affairs that cannot coexist in the known world at the same time as other states of affairs that arise from a generally accepted interpretation of other parts of the legal text. Therefore, in ontological grounds AADA appears as an argument from the ontological structure of the world, not as an argument from the rational preferences of the legislator. As I show further on in this paper, these grounds for AADA have a definite advantage over traditional grounds because, inter alia, they gives greater objectivism in application and enable lawyers' use of AADA to be verified in terms of correctness.