Материал: disser_arhipov

118

M. Midgley and A. Ross talked about games (see § 6.1 Chapter 3 of this research), stressing that any game necessarily refers to agreements on how this game should be played, meaning not only game mechanics, but also the attitude to the game. The subject of a “risk-based agreement about prize...” can be any process the result of which is not known in advance and is accidental. In addition, the doctrine of law relating to the issues of legal regulation of the organization of gambling, rightly emphasizes the fundamental importance of proper interpretation of the word “risk” used in the definition. The “risk” is generally understood as the possibility of accidental loss of property belonging to the player.166 You can play poker without betting and enjoying the process. Such a game will not be gambling in the legislative sense. On the contrary, when someone plays chess with stakes, the players’ activity will be a gambling game, despite the fact that by its nature chess cannot be viewed as a game of chance in the sense in which this word is used in ordinary language

– there is no element of chance in chess, which would be provided for by the rules of the game (for the purposes of this analysis, we do not take into account all the possible “chances” resulting from the individual reaction of the players).

Summing up the interim results, we shall note that in all the examples cited above we can single out something in common – this is the connection of the object of social relations with something divorced from “serious” everyday life, as well as the resulting problems of interpretation of law in relation to relevant situations that, at least in some cases, can lead to the results that are absurd from the point of view of ordinary language and common sense. Let us try to characterize the context in which the significance of such problems changes qualitatively more accurately, and form a hypothesis consistent with such a context for further analysis.

166 See: Ivanova O.A. Gambling: Concept and Characteristics // Bulletin of the Volga University Named after V.N. Tatishchev. 2015. No. 2 (82). P. 111–117.

119

§ 4. The concept of the medial turn as a generalization of key features of the sociocultural context of the problem

The actual sociocultural context that determines the problem of the semantic limits of law can be characterized by two main factors. First, it is digital turn implying such changes in the material bases of production, distribution and consumption of information, which entail changes in sociocultural practices.167 Second, it is game turn, as a result of which, on the one hand, a new form of [mass] culture and art appears (including entailing a reassessment of the “seriousness” of what is happening in the socio-communicative dimension), and on the other – polarizing social groups because there are radically different points of view in respect of the significance of computer games.168 The idea of these “turns” for the purposes of this work is conditional and instrumental. They can be systematized and divided in different ways. Thus, the head of the Center for Mediaphilosophy at the Institute of Philosophy at Saint Petersburg State University and the de facto founder of the Russian direction of mediaphilosophy, V.V. Savchuk, in his book “Mediaphilosophy. Assault of Reality”169 notes:

«In the modern philosophy, we can easily find various turns: ontological, linguistic, iconic, theological, performative, postmodern, medial, anthropological, rhetorical, spatial. Their number is growing. Looking closer, someone will certainly add new, unrecorded».170

167 Udupa S., Costa E., Budka P. The Digital Turn: New Directions in Media Anthropology / Discussion Paper for the Follow-Up E-Seminar on the EASA Media Anthropology Network Panel “The Digital Turn” at the 15th European Association of Social Anthropologists (EASA) Biennal Conference, Stockholm, Sweden, 14-17 August 2018 [Electronic resource] // Media Anthropology Network. – [Site]. – URL: http://www.mediaanthropology.net/file/udupa_costa_budka_digital_turn_discussion_paper.pdf (accessed: 03.08.2019).

168Perhaps the most precise description of game turn in culture and theory of media is provided in the following work: Raessens J. The Ludic Turn in Media Theory / Lecture. 2012 [Electronic resource] / Utrecht University Repository. – [Site]. – URL: https://dspace.library.uu.nl/handle/1874/255181 (accessed: 03.08.2019).

169Savchuk V.V. Mediaphilosophy – Rush of the Reality. Saint–Petersburg: RHGA Publishing House, 2014. Here and beyond, we will mainly focus on this work by V.V. Savchuk, as Russia’s first and most important monographic study of media philosophy, addressing also some foreign authors, as appropriate.

170Ibid. P. 7.

120

In the sense of such a working classification, both digital turn and game turn can be considered as parts of a more general medial turn (or “turn of media”). Such qualifications have a double meaning in the context of the present work, because of “generalized symbolic media”, the concept of which underlies the developed approach about the semantic limits of law, deriving from the original texts of T. Parsons and his English-speaking followers, whereas their translation into Russian as, literally, “intermediaries” – is rather the tradition of translation in theoretical sociology, but in essence, we are talking about the “media” in the sense of mediaphilosophy (please note that this paragraph was adapted for English translation because it was focused purely on the language game of translation).171

One of the new perspectives, which is presented in this work, is exactly to give a legal assessment of medial turn, the latter being defined in the subsequent part of this paragraph. Law is a part of the socio-cultural dimension of society’s life, and therefore such a total phenomenon as the medial turn inevitably influences the law as well. As I.L. Chestnov notes, “law is a social phenomenon conditioned by interactions with other social phenomena, outside and without which law does not exist, and with society as a whole...

Thus, there are no legal phenomena (laws, individual acts, legal relations), which would not simultaneously be psychical (as L.I. Petrazhitsky once wrote), economic, political, etc.

– in a broad sense – sociocultural phenomena”.172 Accordingly, if modern society is

171 Awareness of the role of “media” as an intermediary of communication, which is constitutive of the social reality, is typical for many scientific directions of the XXth century. For example, in the “Sociology of Law” Yu.I. Grevtsov reproduces the view of P.A. Sorokin on the structure of legal relations as follows: “P.A. Sorokin, who paid a lot of attention to the analysis of social interaction, singled out three elements in the structure of interaction: the parties (subjects) of social interaction; acts or behavior, actions of the parties of interaction and conductors (emphasis added – V.A.). By the latter, he understood a variety of phenomena by means of which or by means of which “mutual actions and reactions of interacting individuals are transmitted to each other, or, as expressed in the language of energy, by which energy, in particular mental energy, is transmitted from individual to other”. Legal norms relate, according to the scheme of P.A. Sorokin, to conductors". See: Grevtsov Yu. I. Sociology of Law. Course of lectures. - St. Petersburg: Publishing house “Legal Center Press”, 2001. – P. 163. Y.I. Grevtsov quotes P.A. Sorokin from the following edition: Sorokin P.A. System of Sociology. Т. 1. M., 1993. P. 172.

172 Chestnov, I.L. Postclassical Communicative Concept of Law as an “Invisible Collegium” // Proceeds of Higher Educational Institutions. Jurisprudence. 2013. No. 5 (310). – P. 119.

121

characterized by the medial turn, law needs to be rethought in the context of such sociocultural changes.

The medial turn is a systemic phenomenon that modifies the paradigm of sociocultural life, which is hardly fully comprehended in philosophy, obviously has a significant effect on the range of actual problems of jurisprudence. In a sense, this study is a study of law in conditions of a medial turn, and the problem of the semantic limits of law is actualized now because the major part of the empirical material where this problem makes itself explicit, is connected to the effect of law in media space.173 According to V.V. Savchuk,

«[a]fter a series of major for the twentieth and early twenty-first century turns, more and more insistently voices are heard to recognize the summing and, at the same time, fundamental medial turn»;174 «...media is both a method of communication, and an instrument of production, and a sophisticated method of simulation (emphasis added – V.A.), and an instrument of political struggle».175 The following observation is also important: «[a]fter the linguistic one, a medial turn comes – an ontological evidence of a change in reality – that being and media-reality are identified and interchanged, dissolving into each other. The stages of its formation are as follows: reality is mediated by thinking, thinking by language, language by sign, and sign by media. Being built on top of each other, “being” in modern conditions is given only through the media».176

In this context, we note a hint to the essence of the general philosophical problem of research: law is aimed at regulating reality, but the “hard reality” of a pre-information society in which the main institutions of law are formed and law itself as a social institution is transformed into a modern “playful media reality” in which it is difficult (but at the same time it is necessary!) to find a principle according to which we will be able to

173In this context, we risk assuming that the penetration of terminology typical of today’s simulated reality of the medial turn into legal discussions is in itself a sign of a medial turn. Thus, for example, in the article by V.V. Lazarev’s article of 2016 on the interpretation of law emphasizes the methodological prospects for the study of memes in jurisprudence. See: Lazarev V.V. Interpretation of Law: Classics, Modernity and Postmodern // Journal of Russian Law. 2016. No. 8. – PP. 15–28.

174Savchuk V.V. Mediaphilosophy – Rush of the Reality. P. 19.

175Ibid. P. 23.

176Ibid. P. 24.

122

determine the scope of application of norms having a binding character, which will not contradict common sense, or in other words – will not lead to absurdity. The analogy between the reasoning of M.M. Bakhtin and J. Baudrillard is traced: in a sense, if before the carnival was an isolated action in space or at least in time of play, now we are in the condition of “carnivalization” of space, caused by his mediatization.177 The main problem is that the simulacra of media reality are not isolated in the framework of a special action, but are unpredictably distributed in the media space. This observation is also consistent with the differences which can be identified between modern games and the games of the past in relation to the interpretation of the views of M.M. Bakhtin in the light of contemporary examples of computer games (see § 5 Chapter 1 of this research). Figuratively speaking, from the point of view of the history of culture, before medial turn, the media reality was subject to law, but now there is a reflection that law acts in media reality itself, and it is the object of media reality itself.

Mediaphilosophy is formed in the era of the “new media”. Although “there is no more perishable intellectual product than the word ‘new’”,178 in the context of this work it is clear what we are talking about. In order to avoid confusion and solely for the purposes of this legal study (but not for the purposes of mediaphilosophy), we can replace the word “new” with the word “digital”, this will be more accurate.

«Despite all the obvious and intuitive clarity, the expression “new media” has no terminological status”, – notes V.V. Savchuk – “it is rather surrounded by a cloud of meanings referring to the computer, various mobile devices and the Internet».179

177See e.g. M. Raei. Jean Baudrillard and the notion of modernity and media // Medium.com. Feb. 11, 2018. – [Site]. – URL: https://medium.com/@raeimohsen/jean-baudrillard-and-the-notion-of-modernity-and-media-4b5fc1a92f7c (accessed: 09.09.2019).

178Savchuk V.V. Mediaphilosophy – Rush of the Reality. P. 50.

179Ibid. P. 49.