Материал: disser_arhipov

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8)The institutional field of medicine corresponds to such media as health, which is the language and external objects related to the actions, exchanges and communication related to the care of the body’s normal functioning.

9)The institutional field of sport is represented by such media as competitiveness, which constitutes language and external objects related to actions, exchanges and communications based on regulated conflicts that give rise to winners and losers based on the efforts of teams and players.

10)Finally, the institutional field of art corresponds to such media as beauty,459 which makes up language and external objects related to the standards of obtaining and applying knowledge about beauty, emotional reaction and pleasure.460

We see certain similarity to this approach in the following quotation of P. Bourdieu:

“...there is not one economy, but several different economies. To aspire to the creation of a general theory of economics of practices, which is the goal of any properly oriented anthropologist (whether he is a sociologist, ethnologist, economist, etc.), means to take into account the fact that there are different economies, i.e., universums endowed with different objective and subjective logic, such universums that they cannot be abolished, as well as to describe one of these universums in the language of the other…”461

While analyzing the applicability of S. Abrutyn’s concept in the discourse of the problem of the semantic limits of law, which are considered in terms of “seriousness” or “non-seriousness” of the subject of legal relations, we have not identified any need to criticize or rethink it in principle – it seems that it can be applied in this form (although it may be further developed), because now it can be used to determine the “socio-currency value” of specific subjects of legal relations. Subsequent studies of theoretical sociology

459Aesthetics can argue with this definition as a discipline of philosophy, but this does not fundamentally change the possibility to see a generalized symbolic intermediary in the institutional field of art, whether it is beauty or something else.

460Ibid. P. 454.

461P. Bourdieu. Economic Anthropology: a Course of Lectures at College de France (1992 – 1993) / Transl. from French by D. Kralechkin. – Moscow: Delo Publishing House, Russian Academy of National Economy and Public Administration, 2019 – P. 93.

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may also reflect other generalized symbolic media – perhaps including time in terms of the time it takes for the same user to acquire any values in a virtual environment.462

These institutional domains and symbolic media illustrate the differences between the subject matter of jurisprudence and theoretical sociology, since the models generated by these domains are asymmetric. From the point of view of law, and especially the philosophy of law, the latter may include several institutional fields and generalized symbolic media, which are distinguished in theoretical sociology – for example, the institutional field of polity and such media as power can be quite well attributed to law by a legal theorist. However, this is of no fundamental importance for the question of applicability of this concept to the discourse of the semantic limits of law, because we are interested in generalized symbolic media not in terms of their essential properties relevant to the process of reconstruction of social practices, but from the point of view of their correlation with a specific subject of legal relations through the idea of the possible “sociocurrency value” of the latter.

Now, the main thing is that, like T. Parsons, in S. Abrutyn’s theoretical and sociological concept, these generalized symbolic media corresponding to certain institutional area are, first, convertible, and, second, can and do have external referents of value (in this, by the way, S. Abrutyn’s approach differs from the initial approach of T. Parsons). It is not difficult to draw an interdisciplinary parallel and identify the unifying factor: it is exactly external referent of value within the framework of the concept of the semantic limits of law that can be related to a specific object of social relationship. If this happens, such a subject should be considered as “serious”.

462 From the practice of included observation: multiplayer games, which involve the user in the process of converting real time to virtual values, differ significantly from games where this is not expected. In some games, players who do not convert enough real time to virtual achievements lose a significant advantage, but this represents a serious invasion of real privacy and can naturally affect the user’ success in real life. This is probably the aspect of online gaming that we are facing here that may not be an absurd area to interfere with the law – as in the case of online games in China, for example. See e.g.: China to Crack Down on Children’s Video Gaming Time Amid Fears Over Addiction [Electronic resource] // The Telegraph. 31 August 2018. – [Site]. – URL: https://www.telegraph.co.uk/news/2018/08/31/china-crack-childrens-video-gaming-time- amid-fears-addiction/ (accessed: 24.02.2019).

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For the purposes of this study, it should be emphasized that a generalized symbolic media is an institutional phenomenon. What is of value (significance) to an individual member of society outside the communicative context (in other words, what cannot be a means of exchange, at least within a certain institutional group), cannot be regarded as something of “socio-currency value”, or as an external referent of value in relation to a generalized symbolic media.

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CHAPTER 3. Reconstructing of the conception of the semantic limits of law: contents, significance, methodological potential

§ 1. Reconsidering the problem of the “magic circle”: from qualification of social relationships to qualification of their object

Within this research, the methodology of reconstruction of the semantic limits of law employs, on the one hand, the instruments of legal philosophy, and on the other – [theoretical] sociology [of law]. Such an approach stands close to the problem indicated by J. Habermas. As R. Cotterell puts it:

«For Habermas, any legal philosophy that ignores the complex nature of the social, as social science studies it, will be increasingly irrelevant in addressing the problems of contemporary law. But sociological approaches to law that ‘screen out all normative aspects’ (1996: 6), treating law ‘externally’ as an object, will be no less irrelevant, since they do not address questions of law’s moral meaning to those who live subject to it and need its authority. What is needed is ‘an analysis equally tailored to the normative reconstruction and the empirical disenchantment of the legal system’ (1996: 66); one might say to law as ideal and reality».463

The conception of the semantic limits of law is oriented exactly to such a methodology supplemented at the same time by the analogy from the isomorphic theory of correspondent truth. At the same time, if we consider this conception, first of all, from the point of view of the problems of interpretation of legal texts and application of law, the notion of the criterion of legal significance of the objects of social relations should be considered in the context of the problem of “open texture” of the legal language in the terminology of H. Hart, and therefore – in connection with the methodology of determining the “core” and “peripheral” area of the field of meanings of the concepts used in legal texts. Further (see § 4 of Chapter 3 of this study), the conception of the semantic

463 Cotterrell R. Law, Culture and Society. Legal Ideas in the Mirror of Social Theory. Hampshire: Ashgate, 2006. – P.

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limits of law will be reconstructed in “reverse order” to highlight the sequence of its application as an approach to the interpretation of legal texts. However, at this stage, we will maintain the sequence of reasoning and focus on how the legal significance of the subject of social relations related to simulation in the media reality should be determined.

Let us make a preliminary summary of the process of the search for methodological “landmarks”. Thus, the problem of the semantic limits of law in the conditions of the medial turn presents itself in the most apparent way in the three pervasive examples based on the methodology of thought experiment in the first case and analysis of empirical material in the second and third cases.

1)Hypothetical interpretation of the provisions of Article 105 of the RF CrC (“Murder”) whereunder the wording “intentional inflicting of death to other human” can mean, inter alia, a “murder” that one computer game character commits in respect of other one which is considered as a “human” in the virtual world. 464 In other words, such an action within virtual social reality would constitute an intentional inflicting of death to other human. Let us emphasize that the specific reference to videogames is justified in this context by the medial turn that presupposes that this phenomenon obtains a qualitatively new scale. In the end, we may apply the same reasoning to a children’s game of “cossacks and brigands” by analogy, where virtual (in broad meaning) “murders” occur every now and then, but no one would consider to accuse kids of such murders in the same sense that is meant by Article 105 of the RF CrC. At the same time, such games may be frowned upon by the pedagogics of non-violence.

2)The already customary practice of massive multiplayer game design, as well as economical and legal analysis of relationships in them that relate to virtual values, which

464 We have to emphasize that this pervasive example, in essence, can itself be interpreted as application of the technique known as reductio ad absurdum to the problem of virtual property. In order to identify those cases where law CANNOT be applied to virtual property, we make the example stronger by means of substituting the subject of relationship, that previously was property, to life.