Материал: disser_arhipov

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in the era of the scientific revolution of the turn of the XIX-XX centuries, after a century reaches the point where uncertainty turns out to be the main characteristic of the real. Fluid, “flickering”, unpredictable reality is no longer able to play the role of the model with which knowledge is verified. Any attempt to determine the conformity of knowledge and reality of the inevitable is faced here with the need for some additional action: establishing or constructing that very sample (or image of reality) with which knowledge will be compared».490

However, we are very fortunate that we are dealing with law, even more so – that is explained by social constructionism, since “the establishment or construction of that very sample with which knowledge will be compared” has already taken place.

From the point of view of logic, interpretative judgments in jurisprudence (“whether” fact A is the subject of the legal rule B) may have the quality of truth or falsity. In such judgments, the subject and the predicate are the subject of relations under investigation and the “virtual” object of the legal norm, corresponding to the semantic space of values determined and limited by the “currency value”. The location of these objects in the system of expression (where the subject is, and where the predicate is) does not affect the fundamental significance of the logical operation. Furthermore, it is precisely in the sense of such an operation that we are interested in an isomorphic interpretation of the theory of correspondent truth. One can theoretically model, for example, the following judgments that clarify this logic: “A mobile phone number [object of relations] is personal data [a “virtual” object of law]...”; “The contract [object of relations] is a transaction [“virtual” object of the legal norm]...” etc. Moreover, in the area under consideration, for example, specifically: “Murdering of a computer game character [relationship] is not murder, provided for by Article 105 of the CrC of the Russian Federation [“virtual” object of legal norm]...” The second part of the last logical expression: “…because the killing of a computer game character [as a general rule] does not have “social currency value” and is of

490 Bakeyeva E.V. Ontological Concept of Truth in the Context of Postnonclassical Scientific Rationality // Proceedings of Vyatsky State University. 2012. No. 4. – P. 12.

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“fantasy nature”. Or, on the contrary, the reconstruction of an alternative example: “Unauthorized deletion of a computer game character [object the relationship] acquired with real money constitutes damage to property [“virtual” object of the legal norm], because such a character has “social currency value”, convertible into money as generalized symbolic media, and also functionally adequate to causing damage through illegal deletion of information, therefore the law can be applied to these relations”.

The example of “violence” in computer games (including cybersports) illustrates the problem of revealing a functional correspondence between the statement of violence as part of a subjective and objective social reality and the statement of violence, which constitutes a computer game event – we have already mentioned this in § 3.2 of Chapter 1 of this study, but we will give another illustration. As, for example, the President of the Russian Federation for Computer Sports, D.V. Smith, noted:

«The most popular game in Russian cybersports is Dota2. It competes in five-man teams. The game lasts for about an hour and includes pre-game training, where the guys select their own characters, who will be able to successfully withstand opponents. It is often accused of cruelty and violence. Yes, Dota is a game with fantasy characters who cast spells on each other and hit each other with swords on the head. But, first of all, it all goes not from the first person, but three-dimensional – looks like a normal cartoon. Secondly, for a professional cybersportsman, these visual details do not matter. He perceives his character as a set of numbers and functions – how many lives, weapons, skills, effects (highlighted by me – V.A.). In each graphic game you can set the minimum visual settings, most professional players do exactly as follows: it is information what is important, not beauty».491

Note that in the context of the present study and in the perspective under consideration, this opinion can be considered as an illustration of the lack of functional adequacy between the two statements.

Within such an approach, in a sense, the isomorphism of the functional features of the object of social relations is not so much a criterion of applicability of law as a tool for

491 Smith D.V. For a Child Who Spends a Lot of Time at a Computer, Cybersports is a Way Out // Mel. – [Electronic resource]. – [Site]. – URL: https://mel.fm/mneniye_eksperta/7604295–esport_eksperta/7604295–esport (accessed: 21.01.2019).

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selecting the objects of legal regulation when the scope of concept-words of a legal text is analyzed. Within the framework of systematic theoretical analysis we study the complex actual composition of social relationships and define the subjects isomorphic to “virtual” subjects of legal relations simulated by the norms of the applicable law. If we employ the criterion of isomorphism in this understanding, then the practical sense of using it, among other things, is expressed in the necessity to determine whether there are objects that correspond to the known value of a legal norm, having consistently studied the entire actual composition of social relationships. If there are such objects, then, most likely, there is also a socio-currency value (proceeding from the presumption of social and currency value in relation to those objects that fall within the area of “core” of a legal norm in the Hartian sense). Nevertheless, if there are no such objects in the actual composition at the first approximation, then it is necessary to use the “criterion of seriousness” to determine possible peripheral meanings of the concept-words used in the legal text.

What we are interested in is fantasy nature of functionality of the object in connection, inter alia, with the function of its virtual representation. It is clear that in the example of Minecraft the dynamite is fictional, even if the recipe is real. However, if its recipe is real, i.e. it can be used to make real dynamite, this information can have consequences for the real world, and thus the subject is “real” in terms of its direct or mediated functionality. L. Manovich singled out four key components of the new media objects – fractality, automation, variability, transcoding (see § 4 of Chapter 1 of this research). Under such conditions, it is difficult to assess the adequacy of the structure as such – everything is changeable (everything is not being, but becoming), but it is possible to assess the adequacy of the functional aspects of such a structure. To paraphrase the popular expression which corresponds to the common sense, “if something behaves as a property, it is property”. We emphasize that virtual property, which is the subject of turnover for real money, thus, in the framework of the proposed model is not fantasy, but

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quite real object of social relationship.492 Taking into account the methodology, it is impossible to say that the objects of virtual property are fantasy – they are quite real, if by fantasy not to understand the civil-law “thingness”, but the ability to form a part of civil turnover. Otherwise, we could easily say that the same fantasy is cashless money, uncertificated securities and a huge number of other objects of civil rights that have already become commonplace, which can, with a certain degree of conditionality, metaphorically493 be designated as res incorporales. That is, in a sense, they are, of course, of fantasy nature, but not in the special sense which corresponds to this research – these are quite real objects of intersubjective social reality, as well as virtual property in many online environments.

At the same time, even this “soft” version of the correspondent theory of truth, although it seems to be consistent with the problem at hand, does not seem to be the ideal solution to the task before us, including because it requires additional explanations and reservations in order to explain its legitimacy in its application in the legal argumentation, even in a kind of closed universum of law. Thus, for example, in the works of J. Austin494 it is possible to see a rejection of the isomorphism-based concept of correspondent truth in logic, since such an approach “projects the structure of our language onto the world”.495 And in general, criticism of the correspondent theory of truth makes us think about other criteria for establishing a link between concept-words and facts (among which, first of all, we are interested in the artifacts of media reality), which would make it possible to justify or reject the proposed hypothesis of functional adequacy as “criterion of reality” of the object of social relationships from the point of view of law.

492The example of virtual property, which is the subject of turnover for real money, is perhaps the most appropriate – in the case of it both convertible social and currency value and functional adequacy are obvious

493The author naively believes that such a number of reservations would prevent him from being criticized by the civilists, in the field of expertise of whom he embarrassingly enters.

494See e.g. Austin J. Truth / Supplementary Volume XXIV, 1950 [Electronic resource] // Proceedings of the Aristotelian Society. The Virtual Issue No. 1. 2013. – [Site]. – URL: https://www.aristoteliansociety.org.uk/pdf/austin.pdf (accessed: 10.09.2019).

495Marian D. The Correspondence Theory of Truth.

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In view of this fact, let us try to interpret the problem not so much as the problem of logic as such, but as a related, albeit a special problem of interpretation of law. Thus, if we consider the problem of the semantic limits of law from the point of view of interpretation of legal texts and application of law, it can also be interpreted as a problem of interpretation of legal texts within the framework of Hart’s general analytical and legal methodological premise on the “core” and “penumbra” of word-concepts used in a legal text, reflected in the discussion with L. Fuller and further developed in the book “The Concept of Law” (1961). As noted by S.N. Kasatkin, “...the specificity of the language, according to the author, generates a fundamental incompleteness and uncertainty of law, the “open texture” of its rules, including both the “core” – a set of central, obvious meanings, and the “penumbra” – the area of borderline, unclear cases of use”.496 In the light of this methodology, controversial questions of extrapolation of legal texts on media reality artifacts form a “penumbra” of meanings. Such an interpretation of the problem appears to be legitimate in light of the problems of interpreting law as reflected in the legal collisions of the medial turn, as highlighted in this paper (see § 1 and § 2 of Chapter 1 of this study). As can be seen from the analysis of the writings of the thinker,

“Hart employs a theory of meaning for which any given concept-word distinguishes a core of certain, determinate meaning from a penumbra of uncertainty. On this account, every concept-word is a linguistic sign with both a definite meaning, and a set of imperfect, indeterminate meanings. Where the core meanings of the words constituting legal rules are sufficiently determinate to be applied decisively to a legal dispute, this is an ‘easy case’. Hart’s distinction asserts that the linguistic formulation of legal rules renders their meaning dependent on the meaning of concept-words used in these formulations. Meaning is determined by the function of a word in language. Hart argues that every word has standard instantiations where its application is conventionally accepted and its meaning is clear and determinate. This is the “core of meaning”. Where the application of a word to facts cannot be determined by the conventional rules of language, the meaning of that word may be said to be uncertain and indeterminate. This is Hart’s “penumbra of uncertainty”. In these cases,

496 Kasatkin S.N. The Main Work of Herbert L.A. Hart (to the Publication of the Russian Edition of the Book “The Concept of Law”) // Proceedings of Samara Humanitarian Academy. Series “Law”. – 2007. – No. 2. – P. 10.