Материал: disser_arhipov

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time) is traced, but which are not that shocking to conscience.279 A number of convincing examples, however, are given by the authors of the commentary themselves. For example:

«[A] transaction in which a reputable film critic, who is expected to be objectively assessed by the public, undertakes, for a fee from the distribution company, to praise a film produced by that distributor and criticize films produced by competitors, or a transaction in which a well-known blogger undertakes to mislead his subscribers into believing that he is a fan of a particular brand of car which he does not, in fact seem to be in clear contradiction with the fundamentals of morality. It appears that if the court encounters a claim by the client against the performer in both cases (e.g., when a film critic or blogger suddenly has a conscience and decides to refrain from direct public lies and hypocrisy), it should state the immorality and nullity of such transactions».280

In any case, let us note that for the purposes of this work, the nuances of the civilistic interpretation are not so important to us. In the context of our discussion, we are interested in the potential way of constructing a reasoning that assumes an explicit or implicit identification of the “blatant” contradiction of a transaction to the fundamentals of morality, on the one hand, and of absurdity in the application or interpretation of law, on the other. Interestingly, many of the examples given by the authors of this commentary are consistent with the meaning of the term “absurdity” in common use among both legal scholars and practitioners. In what sense? It is hard to imagine legal protection, for example, of the parties to a “civil law transaction” between a “woman [or even less so a man] with reduced social responsibility” and a souteneur in a society that shares family values, and specifically traditional family values, while law est ars boni et aequi, and this would be absurd indeed. The conventional principle of absurdity in this case is the

279Or the heart of the author of the present study was hardened during the years of legal practice. Selected examples: Ruling of the Supreme Court of the Russian Federation of 06.09.2016 No. 16–KG16–30 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019); Ruling of the Supreme Court of the Russian Federation of 18.04.2016 No. 308–ES15–18008, Case No. A32–35215/2014 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019); Ruling of the Supreme Court of the Russian Federation of 09.03.2016, No. 308– ES15–18008 in the case No. A32–35215/2014 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019) etc.

280Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation. P. 276.

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mutually exclusive values of, on the one hand, law as such, and, on the other hand, the object of social relations, which we subject to legal qualification.

However, the problem raised in this study, which is related to legal conflicts that arise in the “clash” of reality with the virtual (broadly speaking) world, obviously cannot be resolved by referring to either the moral and philosophical arguments as such or the rules of the law in force that directly refer to morality and/or morality. This should be a different matter. But what is it about? Perhaps more clarity can be shed by discussions that are based on the problem of the relationship between law and morality in general, but are more instrumental. Figuratively speaking, morality can answer the question of whether law regulates, for example, transactions of a kind where people are the object of sale, but it cannot answer the question of whether law extends, for example, to transactions involving virtual avatars of people in online games.

§ 2. Hart-Fuller debate and consequent re-consideration of the debate’s discourse

The Hart-Fuller debate, a discussion that turned to be a landmark one for the philosophy of law in XXth century, could serve as a good starting point in developing of further argument. As a rule, it is considered as a dispute on correlation between law and morality and on the grounds of legal system. At the same time, this discussion strongly emphasizes argument related to the limits of interpretation of law that is consonant with the topic of this research. It is the discussion where H. Hart, while developing the discourse on correlation of law and morality, designates the “problems of penumbra” based on the example of a legal norm on prohibition of the use of vehicles in park. What is important is that this problem is posed in continuation of the question of correlation of law as it is and law as it ought to be.

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«Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say to be called “vehicles” for the purpose of the rule or not?» – H. Hart asks.281

The legal philosopher designates this area of problems as the “penumbra” of law. In his view, the fact that there is such an area of problems indicates that legal argumentation cannot be reconstructed or organized by means of syllogisms in all cases – we also need a value judgment from the standpoint of what ought to be in relation to what is. That said, the philosopher stated:

«It does not follow that, because the opposite of a decision reached blindly in the formalist or literalist manner is a decision intelligently reached by reference to some conception of what ought to be, we have a junction of law and morals. We must, I think, beware of thinking in a too simple-minded fashion about the word “ought.” This is not because there is no distinction to be made between law as it is and ought to be. Far from it. It is because the distinction should be between what is and what from many different points of view ought to be. The word “ought” merely reflects the presents of some standard of criticism; one of these standards is a moral standard but not all standards are moral (emphasized by me – V.A.). We say to our neighbour, “You ought not to lie,” and that may certainly be a moral judgment, but we should remember that the baffled poisoner may say, “I ought to have given her a second does.” The point here is that intelligent decisions which we oppose to mechanical or formal decisions are not necessarily identical with decisions defensible on moral grounds. We may say of many a decision: “Yes, that is right; that is as it ought to be,” and we may mean only that some accepted purpose or policy has been thereby advanced; we may not mean to endorse the moral propriety of the policy or the decision. So the contrast between the mechanical decision and the intelligent one can be reproduced inside a system dedicated to the pursuit of the most evil aims. It does not exist as a contrast to be found only in legal systems which, like our own, widely recognize principles of justice and moral claims of individuals».282

Therefore, H. Hart, on the one hand, develops the concept of “penumbra” in a way that is very close to the subject matter of this research (because we also focus on the problems of “penumbra” in the H. Hart’s sense) as a continuation of discussion on law and morality. On the other hand, H. Hart divorces substantial morality and the concepts of what

281See: Hart H.L.A. Positivism and the Separation of Law and Morals / Transl. into Russian by V.V. Arkhipov // Philosophy and Language of Law / Herbert Lionel Adolphus Hart. – Moscow: Canon+ ROOI «Rehabilitation», 2017. P. 185.

282Ibid. P. 193.

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ought to be in law, because the latter may be defined not only by “good” morality. L. Fuller sees a contradiction here because in the context of the ideas of H. Hart there still is a temptation to connect the latter standard of what ought to be with the term “morality” as well. Moreover, the American critic of H. Hart also questions the possibility to define the “central meaning” of certain words out of context – i.e. without consideration of the purposes (concepts of ought) of those who created the legal text that contains a given word, in general, with consideration of the meaning of the whole paragraph, article or the act itself. The question of “central meaning” and its criticism by L. Fuller are quite important for this research and will be considered in more detail in the Chapter 3. Here, in the end of discussion of moral discourse on limits of law, let us indicate several important conclusions.

Historically, the views on the semantic limits of law may be interpreted as a continuation or, rather, a branch-off of the discussion on correlation between law and morality and, in first instance, on the potential moral limits of law. That is why it makes sense to develop the concept of the semantic limits of law starting from an overview and re-consideration of the discourse on correlation between law and morality in modern sociocultural context. At the same time, we have to stress that known approaches to the moral limits of law do not allow resolving the contradictions that are demonstrated in the pervasive examples of this research – they are not applicable, not detailed enough, or apparently cannot be used without something else.283 Nevertheless, in their well-known

283 The questions of whether counter-terrorism legislation can be applied to a fictitious recipe for the manufacture of an “explosive” in a computer game, or whether the rules of property law as an institution of civil law can be applied to “virtual property” from a particular perspective, seemingly too technical and have little to do with the values of substantive morality. For example, from the illustrations mentioned above, in the story of the blocking of the Minecraft website, “something went wrong” with the application of law long before we reached the point where it makes sense to discuss moral values. Let’s say we try to solve the problem on the basis of morality and state that public morality does not allow the right to interfere in the content of the games. This is obviously not the case from a sociological point of view, because the conventional nature of practice – game or non-game – cannot serve as such a universal barrier (yes, morality can prohibit all games, but it cannot solve all games - it is not the social practice, the potential application of law to which we are considering, but in the specific subject matter of such practice, its variations). In the process of trying to formulate why the right cannot (or may) interfere in such relations, on the contrary, we will come to very formal criteria that will not only determine the possibility of applying (and, accordingly,

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debate it were H. Hart and L. Fuller who came closest to the genuine “semantic” formulation of the problem. Instead of the debate around the nature of “penumbra” in interpretation and application of law, both authors recognized multiplicity of words’ meanings and possibility of emergence of various absurd contradictions in interpretation of law without consideration of the problem that relates to the meanings of words. However, both H. Hart and L. Fuller believed that the main method that would allow avoiding “penumbra” in each specific situation would be to consider the purposes of legal norm. The contradiction between the authors lied rather in the fact that L. Fuller, speaking in H. Hart’s words, believed that “penumbra” is not a rare, non-standard and borderline case, but a natural quality of each legal text. The problem is that in order to resolve the problems of “penumbra” what we need is not just to state that we need to take into consideration the purposes of legal norm. We can agree with the general terminology of dispute between two scholars and believe that what we do is exactly determination of purpose of the legal norm

– we can say so, but it is not decisive for the goals of the research, – what is important is such a mechanism is not developed now. Furthermore, and it is critically important for determining the significance and direction of this work, by this moment the fundamental theory and philosophy of law substantially lacks those consequences that entails digital transformation of society and the medial turn in general in order to decide on the conceptual approach to this area of problems.

Thus, one of the central examples of the Hart-Fuller debate on legal norm that prohibits allocating “vehicles” in a park pertains to classic examples used in the discussions on philosophy and theory of law. However, the authors that enjoyed the peak of their creative proliferation in the middle of XXth century did not and could not know

interpreting in this way) the right, but also the possibility to apply to such relations and the morality itself. In this sense, it is this idea that is revealed consistently in the following pages of this paper.