Материал: disser_arhipov

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passively allow or actively speaking for an independent value of virtual objects (virtual property). It is interesting that such practice is no longer considered as absurd, although it is not [yet] universal. Furthermore, we believe that the response to the questions of whether it is possible to apply law to this area of relationships shall be based on the same methodology as in the previous case – because both cases concern virtual reality as a phenomenon of the medial turn. It is, however, clear that in the conditions of a developed virtual economy the assessment of the degree of absurdity of application of property law rules to virtual property would vary from the case with murder. In this regard, it would be appropriate to recollect that, for instance, A.I. Savelyev and other authors in general do not exclude the possibility of application of the rules related to property or specifically the rules on ownership title by analogy to the relationships concerning virtual property.465 In other words, while the previous case concerning murder seems to us absurd, the deeper we go into the RF CrC, the less absurd the application of real law to virtual relationships seems to us. In the case of theft, we would already have some doubts that such application of law would be absurd. Moreover, in case of crimes related to dissemination of information there would likely be no doubts except for some degree of uncertainty in very special cases like those that touch the topic of imaginary, humorous or artistic information.

3) The example of application of the anti-terrorist legislation in respect of the relationships concerning disseminating a “recipe” of dynamite from Minecraft computer game, where the corresponding Internet site was firstly blocked and then unblocked. This example is exactly what develops the logic of the comment to the previous situation. The legal rule in this case is aimed to limit dissemination of information. At first glance, we see information that corresponds to the criteria set forth by the respective normative legal acts. However, an intuitive feeling of absurdity was strong both in Roskomnadzor and in the

465 See: Savelyev A.I. Legal Nature of Virtual Objects Purchased for Real Money in Multiplayer Online Games // Civil Law Herald. 2014. No. 1. P. 127–150.

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court because the law enforcement decision was reconsidered. Nevertheless, how the final legal qualification could be explained? It is this question that is the closest one to the idea that is suggested in this paragraph as a result of reconsideration of the concept of the magic circle in law.

Let us build up argumentation from the contrary and try to apply the known principles that may form a foundation of the magic circle concept in respect of each of the examples.

1.The principle implying qualification of the relationships (game or non-game).

This principle does not give real clarity to the question of whether or not it is possible to apply law in the situations in question. Metaphorically speaking, both in the cases mentioned above, and in other hypothetical cases the game goes far beyond narrow “playfield” and at the same time can be interrupted at any given moment when the parties decide to stop playing. The very last fact indicates that the general cultural quality of activity is not defining – what is defining is determining of the moment and conditions when a game stops to be a game.

2.The principle of subjective side (attitude towards the events in virtual world). This principle, suggested by B. Duranske, seems to be quite acceptable prima facie, but unfortunately, it breaks upon the rocks of further development of the thought experiment. This principle works in the simplest cases. For instance, let us assume that a subject, playing a live action role-playing game, relying on the assumption that her actions are strictly within the limits of the game, nevertheless inflicts wound to another player with a real, or even a decorative, sword. Even though the subject may deny the intent, she would hardly deny certain other forms of guilt. An understanding that a slice made with a corresponding object applied to another human being may lead to a wound comprises a part of self-evident common sense. Real objective harm to social relationships can be inflicted in virtual space even without realizing it – e.g. by way of leading other player to

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committing suicide. However, even in this case the application of law would be defined by classic concepts of corpus delicti. Real problems with application of this principle emerge where the law is applied in a way that it affects the interests of certain subjects but does not imply taking into an account considerations of subjective side at all – like in those cases where websites are subject to blocking in Russia.

3. The principle of consent (consent to virtual nature of the relationships). The argument by J. Fairfield, just like the argument by B. Duranske, seems to be quite workable, but also in certain and narrow number of situations that pertain to the area of dispositive civil law regulation. Players of a game or participants of other kind of virtual communication may come to an agreement that appropriation of virtual property, according to rules of the game, does not lead to real consequences. However, this can be limited only to those cases where the virtual property is, again, unserious and unreal. In criminal law, a subject cannot give a consent to theft in such way that it would remove the criminality of action, although later the injured party may, for instance, avoid raising a civil claim in criminal proceedings. Furthermore, if we consider more severe examples that may e.g. be connected to deprivation of life, the question of consent would seem to be quite irrelevant in a more apparent way.

Thus, we presume that the aforesaid discussion quite precisely pushes us to the idea that what is essential in order to identify absurdity in interpretation and application of legal rules (as well as in the process of modelling in course of creation of law) are the qualities of the object of legal relationships, and not any other circumstance that relate to communication between people. The communication is always real, but whether it is serious or not – that also depends, inter alia, on the object of the relationships.

How to discern such an object? It could be found in the focus of intersubjective and communicative dimension of virtual reality that is reconstructed by means of the social relationships in question. For instance, computer virtual worlds may be seen as

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works of technical art, but we have to look for an object that may potentially become an object of social relationships where social communication is developing dynamically.

§ 2. The criterion of seriousness or non-seriousness of object of relationships: “sociocurrency value”

Thus, the assessment of the “seriousness”466 or “unseriousness” of the object of social relationships for the purpose of determining the semantic limits of law should be applied not to social relationships as such or their model, but to the object of such relationships. Anticipating the following reasoning, we immediately express the main idea: if the object of such relations bears the “social and currency value” (or, “socio-currency value”) of a generalized symbolic medium, then such an object should be qualified as “serious”, and if not, then as “unserious”. In the context of the positions of modern sociology, as well as T. Parsons and S. Abrutyn themselves as key authors in this approach, it is not difficult to distinguish one type of objects from another, at least in theory – the object should not just be of any private subjective value (including material), but to represent an expression of a certain generalized value, which in this case can

466 The possible criticism of such a choice of the name for the criterion, based on the fact that the word “seriousness” implies a subjective attitude rather than an intersubjective quality as compared to the term “significance” would have been better, does not seem convincing. “Significance” may also well be subjective. It is also important that the contrast between playful and seriousness is recognized in game studies, which are an essential part of the methodology of the approach discussed in this article. See for example: Rodriguez H. The Playful and the Serious: An approximation to Huizinga's Homo Ludens [Electronic resource] / Game Studies. The International Journal of Computer Game Research. 2006. Vol. 6. Issue 1 // “Game Studies”. – [Site]. – URL: http://gamestudies.org/0601/articles/rodriges (accessed: 25.07.2019). Besides, the choice of the term is conditioned, first of all, by the antonymous connotations characteristic for the context of game culture, which in itself speaks about its semantic relevance. The definitions given to the word “seriousness” in dictionaries also confirm this possibility. For example, one of the meanings of the word “serious” according to the Explanatory Dictionary of the Russian language by S.I. Ozhegov and N.Y. Shvedova is “requiring close attention, fraught with important consequences, dangerous”. See: Ozhegov S.I., Shvedova N.Yu. Ed. 4th. M., 1997 [Electronic resource] // “Slovorod.ru”. – [Site]. – URL: http://www.slovorod.ru/dic- ozhegov/ozh-s.htm#_sje (accessed: 25.07.2019). Similar and context-specific interpretations can be found in English. For example, “serious” is defined, inter alia, as “pertaining to important things rather than trivial matters” or “not joking or trifling” and “seriousness” as “the condition of being grave and of involving serious consequences”. See: Seriousness [Electronic resource] // The Free Dictionary. - [Site]. - URL: http://www.thefreedictionary.com/Seriousness (accessed: 25.07.2019).

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potentially be converted into another value. I.e. it must be an external referent of value in the terminology of S. Abrutyn.

The following line of discussion by H. Treviño can indirectly explain this thesis. As he notes, money and social approval are different media of social exchange, and we should not consider monetary reward itself as social approval. As T. Parsons suggested, the four media of interaction are exactly symbolic and not just material rewards. Furthermore, T. Parsons refers to J. Olds psychological experiments on laboratory rats that confirm that even animals are able to appreciate symbolic rewards, and not just food as a material object. 467 To emphasize this idea, H. Treviño makes reference to the words of T. Parsons who said that in his terminology money and social approval are generalized media of interaction, while food or technical help are not. The empirical proof of this idea lies in the fact that, according to J. Olds and other researchers, educational processes of laboratory rats can be rewarded by electric stimulation of the pleasure mechanism of brain rather than objects, which can satisfy natural needs.468

The author of the present study expressed a general conclusion about the criterion of seriousness in the article “Computer Games, ‘Magic Circle’ and Semantic Limits of Law” as follows:

«In the context of this paper, therefore, it is clear that money (“real” or “fiat”) was not by chance the main “trigger” for discussions about the possible extent to which law might interfere with social relations taking shape in virtual worlds and online multiplayer games. Money is a classic example of a generalized symbolic media. Therefore, it is not surprising that the intuitive feeling that when “virtual” relations are invaded by relations involving “real” money, the application of law is possible, because money itself is a generalized symbolic media, and therefore the situation in the sociological, and now in the legal sense, is quite serious. However, there are other generalized symbolic media corresponding to their social subsystems, at least power and influence. Also, we believe it is quite clear that in real social communication, just as money is expressed in a certain form (physical

467Treviňo J., Talcott Parsons Today. His Theory and Legacy in Contemporary Sociology / Ed. by A. Javier Treviňo, Foreword by Neil J. Smelser. – Lanham: Rowman & Littlefield Publishers, Inc., 2001. – P. 196.

468Cited by: Treviňo J., Talcott Parsons Today. His Theory and Legacy in Contemporary Sociology. – P. 196.