Материал: disser_arhipov

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is achievable in the interdisciplinary analysis and development of the analogy of law and game, taking into account the modern, fundamentally different stage of development of the games, and as such, we propose to consider the claim of law to seriousness (which can complement the principles of internal morality of L. Fuller’s law and R. Alexy’s idea of the claim of law to correctness – see § 6.2 Chapter 3 of this research).

§ 5. Interdisciplinary concept of the “magic circle” in game studies

So far we have managed to assess the attempts to reconstruct the limits of law from the point of view of moral philosophy; to determine why the approaches of L. Fuller and H. Hart are incomplete under the conditions of the medial turn; to find out that the widely used notion of “absurdity”, clearly related to the semantic limits of law, has not yet been defined with sufficient clarity even in the “doctrine of absurdity”; to establish that theory of law as a rational discourse and deontic logic can help us to qualify certain formal kinds of absurdity (or, perhaps, nonsense), but in the case of “deep” semantic absurdity they can be useful only for stating and formally describing the problem. Each of the presented approaches, it is worth admitting, is not very suitable for the formation of a brief and scalable concept of the semantic limits of law in the conditions of a medial turn. For example, we still cannot justify the impossibility of interpreting Article 105 of the Criminal Code of the Russian Federation as applied to “murders” in computer games, and, on the contrary, we cannot justify the possibility of applying norms of real law to the turnover of virtual property for real money. Continuing to supplement the aesthetics of the scientific text with the language game of game studies, let us ask the following question: perhaps, if a research with a serious object does not help us, research with an unserious object – the games themselves – will help us?

The term “magic circle”, already mentioned in this study, is widely used in cultural studies, sociology, and the interdisciplinary field of game research. It means the supposed

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conditional boundary between the “space” of a game and “real life”. In the context of this paper, the concept of the magic circle can be considered, first, as a historically initial attempt to conceptualize the semantic limits of law in the context of the medial turn, and second, as an experience of interdisciplinary experience of such conceptualization, based, inter alia, on theoretical sociology. Of course, the theory of the magic circle (or studies in which the term is used exclusively as a conditional label, as it is traced, for example, in the works of J. Fairfield) is sufficiently developed by itself. At the same time, it focuses on only one area of social practices – games. This is probably why it is particularly vulnerable to criticism. The concept of the semantic limits of law, in this sense, can be considered as expanding the content of the concept of the magic circle and extending it to a wider space of social practices. The history of the use of this term in science based on the principle of metaphor can be traced back to the work of J. Huizinga “Homo Ludens” (1938).

In recent studies of the legal aspects of multiuser computer games and virtual worlds (specifically, in this case, we do not consider sociological and cultural concepts of the magic circle and the definition of its limits – the subject of jurisprudence differs from the subject of other social and humanitarian sciences, even if directly related to the interdisciplinary research methodology), several approaches to the definition of the boundaries of the magic circle have been outlined. We emphasize that they are consistent with interdisciplinary discourse in this area. The last research at the time of writing, which summarizes the problems of interpretation of the magic circle in relation to games, belongs to the Finnish researcher J. Stenros. In the article «In Defence of Magic Circle: The Social and Mental Boundaries of Play» (2012),389 after assessing the arguments of the critics of this concept (which we partially used to reconstruct the concepts of virtual reality as part of

389 Stenros J. In Defence of Magic Circle: The Social and Mental Boundaries of Play [Electronic resource] / Proceedings of DiGRA Nordic 2012 Conference: Local and Global – Games in Culture and Society // Digital Games Research Association. – [Site]. – URL: http://www.digra.org/wp-content/uploads/digital-library/12168.43543.pdf (accessed: 06.02.2019).

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the medial turn in § 5 of Chapter 1 of this study), gives three main modern approaches to determining the boundaries of the game and the gameplay:

First, it is a “psychological bubble” – a “protective frame” surrounding the player who is in a psychological state corresponding to the game process. It is about

«…personal, a phenomenological experience of safety in a playful (paratelic/autotelic) state of mind. If a person plays alone, she need not negotiate or metacommunicate with others (though usually she does signal play unconsciously). There is a ‘border’ around her experience, a frame that guides her interpretation of the situation. A player needs to feel safe in order to be playful, though it is not necessary to actually be safe».390

Second, it is actually the magic circle as a metaphor for a social contract that constitutes a game activity.

«The magic circle is the social contract that is created through implicit or explicit social negotiation and metacommunication in the act of playing (a game). This social contract can become societal as other social frameworks (law, economics) can recognize it. It is created when there is more then one person engaged in playful activity, though once established it is no longer necessary for everyone to constantly remain in a playful mindset. There is a connection between a playful mindset and play, but as a result of social negotiation and shared structuring of an encounter, it is possible to be in a telic mindset and still remain within the socially agreed borders. This applies to the playing of single player games as well: though they can be played alone, they are socially recognized as domains of special meaning, as games. However, if enough participants slip into a telic mindset, then it can be questioned whether what is contained within the borders remains play even if it is still a game».391

Finally, third, is the concept of the magic circle as an arena for the gameplay process, which is a “temporal or spatial ‘site’” that

«…is culturally recognized as a structure for playful action, or an inert ludic product (emphasis added – V.A.). As the social negotiation of a magic circle becomes culturally established and the border physically represented, arenas emerge as residue of the playing (the tennis court, April Fool’s Day, game products – emphasis added – V.A.). These sites are

390Ibid. P. 14.

391Ibid.

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recognized as structures that foster play even when empty (and they can be constructed in ways that seek to foster playfulness), but require use to be activated as the border of the magic circle remains social. As socially recognized they have severed the need to be engaged in with a playful mindset».392

Moving from game research to jurisprudence, we emphasize that these disciplines have different subjects. Furthermore, J. Stenros did not pretend to find a solution for law, although he noticed obvious parallels. However, despite this, it is quite obvious that there is a correspondence between known and emerging legal concepts of the magic circle and three cultural and sociological interpretations of this phenomenon. They are, accordingly, the following.

The first approach in law is “subjective”. It was directly suggested by B.T. Duranske in the book “Virtual Law. Navigating the Legal Landscape of Virtual Worlds” (2008).393 In this paper, the author, more a practicing lawyer than a representative of the theoretical direction in law, presented an attempt to predict the further development of “virtual law” as an area related to the application of general rules in the context of virtual space in the narrow sense of the word. The “magic circle test”, proposed by the author, is a procedural theory in the sense of American jurisprudence rather than an observation related to the ontology of law. Literally, this “test” sounds as follows:

«An activity that occurs in a virtual world is subject to real-world law if the user undertaking the activity reasonably understood, or should have reasonably understood, at the time of acting, that the act would have real-world implications».394

Note that, at the first approximation, such a test may seem to be quite a valid one. Moreover, we should welcome the author’s truly innovative approach to the popularization

392Ibid. PP. 14-15.

393See: Duranske B.T. Virtual Law. Navigating the Legal Landscape of Virtual Worlds. – Chicago, Illinois: ABA Publishing, American Bar Association. – 2008. – 461 p.

394Ibid. P. 75.

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of these problematics. At the same time, even though the subject of legal science and, moreover, practice, differs significantly from the subject of sociology and cultural studies, against the background of all discussions of the drawbacks of the concept of the magic circle within the framework of interdisciplinary discourse, the approach does not look very convincing. Paying tribute to the pioneering enthusiasm of B.T. Duranske, we note, of course, the uncertainty of the concept of “committing actions in the virtual world”. The author himself defines the concept of “virtual world” rather narrowly, correlating this term with the notion of a computer environment in which users interact with each other through virtual representations – avatars (there could be some difficulties in conjugating this word in Russian, taking into account the lack of well-established traditions of word use in the language in this case), which often assumes the constancy of user-generated content, as well as the current economic system.395 However, even with such a narrow use of the term, it is not clear what “user’s actions in the virtual world” are, if user, even at a very rough approximation, acts, in general, in the real world, and computer simulation, in fact, is also part of the real world. At the same time, however, B.T. Duranske’s approach has at least one indisputable advantage from the point of view of legal dogmatism – the author connects the boundaries of the magic circle (and hence the semantic limits of law) with two components: the consequences for the “real” world and the subjective side of the act – legal or illegal.

The second approach in law is “consensual”. Turning to this concept of the magic circle as a legal “test”, it should be noted that the notion of a broader meaning of the concept of “magic circle” has already been encountered in the legal literature. Thus, one of the prominent foreign researchers of legal aspects of virtual worlds, J. Fairfield, in his article “The Magic Circle”396 notes that «before evaluating the magic circle as a legal

395Ibid. P. 2.

396See: Fairfield J. The Magic Circle // Vanderbilt Journal of Entertainment & Technology Law. – 2009. – No. 1 (May). – PP. 823–840.