Материал: disser_arhipov

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In view of the aforesaid approach, in this research we intentionally avoid using the pervasive use of the term “virtual space” and especially “cyberspace”239 and analogical terms that imply combination of space metaphors with technological landscape. The reason is analogous to the reasons why now sociologists and researches of culture reject the classical concept of “magic circle” – there is no separate special and technologically defined space for the interaction between people, and not between the characters of an online game. What changes is the assessment of the objects of relationships. More on that

– in the Chapter 2 of this research. Such an approach does not exclude using of these terms as the instrumental ones for the purposes of forming the models of regulation that have limited applicability, but excludes concepts of information space as of something that has serious ontology (this is also exactly what follows from the definition by D.V. Gribanov given in the footnote above). However, we have to emphasize that the researchers of informational space and the author of this work imply different subject matters. In this work, we do not study peculiarities of implementation of state sovereignty in the informational space, but peculiarities of interpretation of law in those cases where social relationships for some reason, and in broad sense, are connected to a game or a simulation that form an integral part of modern culture, but not always presuppose seriousness.

Nevertheless, we believe it is possible to use a broader category of media space. It can be said, that by the XXIst century, humanity has moved from “ordinary” reality and “ordinary” space to media reality and media space, respectively. In this perspective, these phenomena have already become the subject of study in predominantly non-legal studies, for example, in political science. According to S.V. Volodenkov, “political reality is

239 This term is popular in studies of information law issues. Thus, A.A. Efremov, for example, refers to the definition of D.V. Gribanov, who “defines cyberspace as a set of public relations arising in the process of using an electronic computer network, formed with regard to information (information resources) processed by means of computers and information services provided with their own help (emphasis retained – V.A.), a set of relations, in which it is possible to participate only by means of computer and computer network communication facilities”. See: Efremov A.A. Formation of the Concept of Information Sovereignty of the State // Law. Journal of the Higher School of Economics. 2017. No. 1.P. 204. In this case, A.A. Efremov quotes the following article of the cited author: Gribanov, D.V. On the Issue of Legal Theory of Cyber Environment // State and Law. 2010. No. 4. P. 60.

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transformed by means of mass communication into political media reality, which in most cases significantly distorts the perception of real political processes, events, and phenomena in the public consciousness”,240 emphasizing that “Michel Foucault wrote that modern man exists within the framework of the world created by information and not the world of which he has any information”.241 At the same time, the position of some political scientists may seem rather pessimistic (if, in particular, to separate the nihilistic pathos of J. Baudrillard): “The specificity of political reality today is determined by the tendency to use elements of the show in politics; the theoretical basis of this concept can be called the “society of performance” of Guy Debord. In turn, Derrida distinguishes between traditional and free theatre. In today’s political reality, shows and videos are broadcast on television and on the Internet to discuss the current political agenda. In the political reality, showpolitics is supported by actionism and memes on political topics. As a result, our entire reality becomes a theatre, where people are actors who do not hear the response of the audience. Shows are a substitute for reality; people look at the world through TV screens and computer monitors. The Internet is beginning to repeat the logic of television in many ways”.242 In this context, L.B. Zubanova notes that |in its empirically fixed meaning, the media space is understood to mean the whole field of possibilities of using information flows (significant for the majority of people newspapers, radio stations, television channels)... We deal with a special organization of the space connected with symbolic forms – a wide set of texts and images, which are created and recognized by the subjects as semantic constructions forming a cultural order through models of explaining reality”.243

240Volodenkov S.V. Mediatization and Virtualization of the Modern Public Policy Space // Communicology. 2016. No. 4. – P. 126.

241Ibid.

242Kaftan V.V., Ryazanova L.V. Concepts of the Virtual and Simulated Reality in the Conditions of the Digital Transformation // Power. 2019. No. 3. – P. 53–54.

243Zubanova L.B. Modern Media Space: Approaches to Research and Principles of Interpretation // Proceeds of the Chelyabinsk State Academy of Culture and Arts. 2008. No. 2 (14). – P. 6.

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In this context, however, it is crucial to clarify the theoretical and practical possibilities of opposing law to simulated media reality. Relying both on the position of analytical jurisprudence and on the general position of common sense, let us assume that objective law is by definition impossible as a simulacrum. If there are external features of law in a society, but it is a simulacrum, then there is no law in such a society. The existence of universally recognized and obligatory rules of conduct (one of the main features of law), even if they are implicit or differ from those formally declared, is an empirical social fact of an intersubjective social reality. A separate legal text or other legal phenomenon is possible as a simulacrum, but law as a whole is not. Thus, law is not a simulacrum, and simulacra cannot be included in the legal reality, except in the case when a simulacrum itself is as a socially significant object of a relationship. In view of this fact, it is necessary to determine the criterion by which such significance can be established, and, as a consequence, to separate the illusion from reality in the media space for the purposes of jurisprudence.

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CHAPTER 2. The quest for the methodology of resolving the problem of and reconstructing the semantic limits of law

§ 1. Attempts of reconstructing the limits of law based on the approaches of moral philosophy

The “borderline situations” of interpretation of law, in which absurdity and common sense collide, are often viewed in the history of legal thought in the context of a discussion about the relationship between law and morality, as well as the teleological method of interpretation. As a rule, the result of interpretation is considered absurd in case it contradicts the well-established moral norms – substantially or due to violation of proportionality. In order to explain why it is necessary to avoid such an interpretation, – and it may correspond to a literal interpretation in terms of scope – those who interpret resort to the concept of a teleological interpretation. This way of reasoning is typical both for well-known directions of reasoning about the limits of law and for discussions on the relationship between law and morality, such as the dispute of L. Fuller and H. Hart. However, the content of each aspect of the reasoning can be considered in the context of the problems of semantics of regulatory prescriptions, and ultimately the question can be asked whether the contradiction of morality in the broad sense of the word is a necessary and sufficient criterion for determining the absurdity of the results of legal interpretation of a legal text.

Attempts to directly244 conceptualize the general concepts of the limits of law as such, in a sense that is close to the formulation of the problem in this study, are known primarily to foreign theory of law. Let us dwell on several well-known approaches. Thus,

244 As indirect attempts to conceptualize the limits of law, one can consider the content of legal thought as a whole from ancient times to the present day, since an attempt to answer the question of what is law can also be viewed as a definition of the semantic limits of law. However, if this can be considered common with the present research object, its specific subject is different, and is revealed at the point of determining the general boundaries of the semantic field of legal texts.

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J. Stanton-Ife, the author of the article “The Limits of Law”, one of the few works directly devoted to the search, at least partially consistent with the present study, in the Stanford Encyclopedia of Philosophy, notes that

«[i]t is clear that law has limits. It has practical or ‘means-end’ limits; what lawmakers try to do may misfire in many ways. More interestingly, though, does law have principled limits? The best known positive answer to this question is that given by John Stuart Mill... Finding principled limits to the law, it will be suggested, is an elusive task».245

The quotation from Lord Devlin mentioned as an epigraph emphasizes the “moral” orientation of the consideration of the problem:

«I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter».246

How does J. Stanton-Ife further develop his thought?

The limits of law can apparently be defined by efficiency. The legislator can take tough measures against, for example, street crime or alcohol consumption, but such measures, depending on how they are implemented, on the contrary, can lead to increased violence in society or to the emergence of an underground alcohol trade. But this is a kind of practical and instrumental limits of law that can be established in each particular case through a thorough analysis of the circumstances. «There are limits to what the law can achieve because some of its tools are blunt».247 With reference to L. Fuller, the author notes that law can enforce, it can create rules, it can resolve disputes, but these tools limit

245Stanton-Ife J. The Limits of Law [Electronic resource] // The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), Edward N. Zalta (ed.). – [Site]. – URL: https://plato.stanford.edu/entries/law-limits/ (accessed: 17.10.2018).

246See e.g.: Devlin P. The Enforcement of Morals. – Oxford: Oxford Paperbacks, 1968. – 154 p. Hereinafter, citations to sources cited by J. Stanton-Ife are given according to the data of the main publication, but after additional verification, and, if necessary, are specified by source in light of the approach developed in this study.

247Stanton-Ife J. The Limits of Law. Раздел “1. Means-Ends Limits”.