Материал: disser_arhipov

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the relationship between fact and concept-word must be determined by non-linguistic standards and criteria, such as the presumed purpose or communication intention”.497

Thus, the interpretation of legal text, which implies the need to determine whether or not the object of social relationships, mediated by media reality, is within the scope of the possible meanings of concept-word used in it, as well as the subsequent application of law, requires a correspondence between such object and the term. In current socio-cultural conditions, the facts of media reality are on the periphery of the scope of legal texts. The definition of functional correspondence, in this sense, is the establishment, in terms of

“late” L. Wittgenstein, of “family resemblance” between the meanings related to easy cases of core meaning and facts of media reality located on the periphery. It is noteworthy that the thinker himself explained the concept of “family resemblance” on the example of the use of the word “game”:

“66. Consider for example the proceedings that we call "games". I mean board-games, cardgames, ball-games, Olympic games, and so on. What is common to them all?—Don't say: "There must be something common, or they would not be called 'games' "—but look and see whether there is anything common to all.—For if you look at them you will not see something that is common to all, but similarities, relationships, and a whole series of them at that. To repeat: don't think, but look!—Look for example at board-games, with their multifarious relationships. Now pass to card-games; here you find many correspondences with the first group, but many common features drop out, and others appear. When we pass next to ballgames, much that is common is retained, but much is lost.—Are they all 'amusing'? Compare chess with noughts and crosses. Or is there always winning and losing, or competition between players? Think of patience. In ball games there is winning and losing; but when a child throws his ball at the wall and catches it again, this feature has disappeared. Look at the parts played by skill and luck; and at the difference between skill in chess and skill in tennis. Think now of games like ring-a-ring-a-roses; here is the element of amusement, but how many other characteristic features have disappeared! And we can go through the many, many other groups of games in the same way; can see how similarities crop up and disappear.

And the result of this examination is: w T e see a complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail.

497 Thacker L.E. Interpretation and Legal Theory. A. Marmor Oxford: Clarendon Press, 1992, 193 pp. (Review) // Dalhousie Journal of Legal Studies. – 1993. – Vol. 2. – P. 334.

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67. I can think of no better expression to characterize these similarities than "family resemblances"; for the various resemblances between members of a family: build, features, colour of eyes, gait, temperament, etc. etc. overlap and criss-cross in the same way.— And I shall say: 'games' form a family”.498

At the same time, the notion of applicability of Wittgenstein’s ideas in jurisprudence, including directly to the field of problems of interpretation of legal texts, has been repeatedly criticized. Thus, for example, B. Bix notes that “the [Wittgenstein’s] rule-following considerations do not have any direct applications to law, at least not to the issues in legal interpretation to which Wittgenstein’s work is usually applied. The rulefollowing considerations are about the proper explanation of a phenomenon: the phenomenon of general agreement in practices regarding the simples terms and mathematical concepts… By contrast, law and legal interpretation seem, and seem obviously, to be some distance from the practices inspiring the rule-following considerations. Law and legal interpretation are not practices characterized by consensus or lack of disagreement. To the contrary, one might say that the practice of law is substantially, perhaps even pervasively contested. The question in legal interpretation is not how to explain agreement, but how to resolve disagreement”.499 B. Bix’s arguments are, at the very least, noteworthy. Moreover, as another cautious remark, we can note that Wittgenstein’s ideas reflected in the excerpt from “Philosophical Investigations” can only confuse the case if applied too literally – if the concept-words used in the legal text are not only ambiguous, but are also have “family resemblance” to others, it may complicate the reconstruction of a definite meaning.

498Wittgenstein L. Philosophical Investigations (1953) (in Russian) // Wittgenstein L. Philosophical Works. Part I. Transl. from German / Compilation and Introductory Article by M.S. Kozlova. Translation by M.S. Kozlova and Y.A. Aseev. – Moscow: Gnosis Publishing House, 1994. – PP 110–111.

499Bix B. Cautions and Caveats for the Application of Wittgenstein to Legal Theory [Electronic resource] / Law and Social Justice, Campbell, O’Rourke & Shier, eds, MIT Press, pp. 217–229 // Social Science Research Network. – [Site]. – URL: https://ssrn.com/abstract=619123 (accessed: 10.09.2019).

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In the domestic research, the general and convincing counterarguments against this skepticism B. Bix, based on the notion of “the constructed nature of ontology of legal phenomena in the legal language”,500 were expressed by A.B. Didikin.501 Hence, if we consider the specific angle of this paper, in the methodology of analytical jurisprudence proposed by H. Hart, which is clearly intended specifically for the purposes of interpreting the law, the concept of “family resemblance” is used as a legitimate tool. This is most clearly seen in the example of interpretation of the concept of law by one of the main advocates of the approach proposed by the British author – A. Marmor – directly in the context of the problems of interpretation of law, presented by the latter in the book “Interpretation and Legal Theory” (2005).502 It should be noted that the approaches proposed by H. Hart are still relevant today, having been criticized, among others, by such influential lawyers as L. Fuller503 and R. Dworkin.504

In the light of A. Marmor’s interpretation, the conception of H. Hart can be expressed as follows. The use of natural language for the formulation of legal norms predetermines the dependence of the meaning of these norms mainly depends on the concept-words used in the relevant legal texts.505 Logical conceptions (e.g., of syllogism) apply only to relations between rules or expressions, not their relativity to the world.506 In the words of H. Hart himself, “logic remains silent on how to qualify particulars”, but that is where the problem of “core and penumbra” lies.507 To determine the meaning of words it

500Didikin, A.B. Interpretation of the Problem of Rule Following the in the Analytical Philosophy of Law // Proceeds of the Tomsk State University. Philosophy. Sociology. Political science. – 2015. – No. 2. (30). – P. 85.

501See Didikin, A.B. Interpretation of the Problem of Rule Following the in the Analytical Philosophy of Law // Proceeds of the Tomsk State University. Philosophy. Sociology. Political science. – 2015. – No. 2. (30). – PP. 83–89.

502Marmor A. Interpretation and Legal Theory. 2nd Ed. Oxford and Portland, Oregon: Hart Publishing, 2005. – 179 p.

503Ibid. PP. 99–106.

504See: Kasatkin S.N. The Removability of the “Open Texture” of Law: Three Remarks by R. Dworkin // Legal Paradigm. – 2019. – Vol. 18. – No. 1. – PP. 93–98.

505Marmor A. Interpretation and Legal Theory. P. 97.

506Ibid. P. 98.

507Ibid.

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is acceptable to use the conception of “family resemblance”,508 based on the “core” meaning of concept-word, which is determined by self-evident examples of the use of the word in real practice,509 which form the criterion (in a special sense of Wittgenstein’s philosophy of language510) for determination of the meaning of the concept-word that is of interest to us.511 Up to this point, A. Marmor’s reasoning seems to us sufficiently clear, consistent and applicable in practice. However, the question arises: the criteria for defining the concept-word in normal cases of natural language use and in cases where natural language is used to express legal norms should be different, which is indirectly confirmed by the empirical material of this study (see § 2 and § 3 of Chapter 1). In our view, analysis A. Marmor does not provide an explicit answer to the question about the criteria for the interpretation of legal texts and the application of the law.

However, from all the previous research, it follows that the legally significant criterion for determining “family resemblance” is expressed in functional correspondence. Based on common sense, functionality itself is defined by how the object of social relations can be used by actors (subjects of law) in an intersubjective social reality. With this approach, if, for example, a social institution of trade in virtual objects – artifacts of media reality – has been formed, then we can establish “family resemblance” between such objects and the central meaning of the legal term “property”. It should also be taken into account that new media are defined by such qualities as fractality, automation, variability, and transcoding (L. Manovich), and this, in most cases, predetermines the impossibility of structural correspondence of the artifacts of modern media reality and the central meaning of the concepts of legal texts that are focused on the establishment of technologically neutral rules of conduct. In the context of the research, the concept of functional

508Ibid. PP. 100–101.

509Ibid. P. 101.

510For an overview of criteria and symptoms in Wittgenstein’s terminology, see e.g: Loreti A. L. Wittgenstein on the Concepts of “Criterion” and “Symptom” // Philosophy of Education. – 2015. – Vol. 5 (62). – PP. 58–64.

511Marmor A. Interpretation and Legal Theory. P. 102.

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correspondence is opposed to the “fantasy nature” of the object of social relationships in relation to the legal reality. It is necessary to emphasize that in the context of this work, we are not talking about the fantasy nature of the object as such (in virtual reality, all objects are to some extent fantasy), but about the fantasy nature of representing the key functional properties of the object in virtual reality (i.e., what the objects “do” rather than “how they look”). In fact, the criterion in question is designated as the “the criterion of reality” because objective law, by definition, is not possible as a simulacrum (see § 5 of Chapter 1 of this study).

However, the main rationale for functional correspondence as a criterion for determining “family resemblance” and as a “criterion of reality” in the context of this work is systematically related to the “criterion of seriousness”. The non-absurd scope of legal regulation is determined by the objects of social relationships which have convertible socio-currency value.512 The presence of such a value implies that the object is nothing but an external referent of value (significance) of a generalized symbolic medium. In turn, both in the conception of T. Parsons and in the works of later authors mentioned in the study, such significance is expressed in the special quality of generalized symbolic media, allowing them to act as means of communication – of the communication of values, i.e. the performance of their certain functions in the system of social exchange through external value referents. This may be the rational explanation for the common sense expression “if something behaves as a property, this is property” mentioned before. Thus, both criteria are naturally interrelated. At the same time, although in essence each of the criteria is explained by one methodological approach, which goes back to the concept of generalized symbolic media, the meaning and significance of these criteria are different. Thus, the

512 In our view, the following conclusion is correlated with this idea: “Although has effectively punctured any notion that standard instance or core meaning is impervious to context and the value-systems inherent in manifest legislative purpose, a concept of standard instance or core meaning is indispensable to setting outer limits (emphasis added – V.A.) on potential meaning and, indeed, even to the revelation of legislative purpose itself”. Dickerson R. Statutory Interpretation: Core Meaning and Marginal Uncertainty // Missouri Law Review. – 1964. – Vol. 29. – P. 11.