Материал: disser_arhipov

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“criterion of reality” is used to correlate the fact of media reality with a concept-word used in a legal text. This criterion allows to explain the principle of applying the concept of “family resemblance” in the terminology of L. Wittgenstein, but its meaning is limited by this – it is a formal criterion. The object itself may not have a convertible socio-currency value. In turn, the “criterion of seriousness” is a substantive criterion, the purpose of which is to determine this value or its absence. By paraphrasing and, to the extent necessary, complicating the pervasive common sense formula, the following can be said: “If, in principle, something behaves as property – it is functionally consistent with the peripheral area of meaning of the concept-word “property” used in legal text and may513 be included into the subject matter of legal regulation”, then “if something behaves as property in a way that is of inter-subjective significance, it must be included in the subject-matter of legal regulation”. Of course, the example can also be extrapolated to other external referents of value and generalized symbolic media.

§ 5. Theoretical modeling of application of the criteria of socio-currency value and functional adequacy

The sequence of application of the criteria of reality and seriousness in practice will vary depending on the specific process we face. If it is a question of determining the public significance of the object of relations for the purpose of lawmaking, the first and main criterion will be seriousness (socio-currency value), and the criterion of reality will allow us to determine the further choice of linguistic means for solving the problems of legal

513 In the general context of the work and the references to the concepts of “weighing” or “balancing”, which is required if only one of the criteria of the semantic limits of law is met, it must be emphasized that the decision to include an object of social relationships into the field of law cannot always be dictated by its intersubjective significance in the sense that “family resemblance” is defined. Thus, for example, symbolic and ceremonial weapons may be functionally adequate to the scope of the concept of “weapons”, but excluded from the scope of legal regulation because for some reason they cannot be regarded as having inter-subjective significance (“no one uses them this way”). Or, on the contrary, to be included in the scope of legal regulation, but not because it may pose a threat to life and health, but because in a given conventional society, for example, any action with any weapon is contrary to religious dogma

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technique. At the same time, if it is a question of defining the meaning of the concept used in a legal text for the purposes of interpretation of law or application of law, it makes sense to first establish the reality of the subject and then determine its seriousness. At the same time, in this case, both criteria will be equal. The sequence of consideration of the criteria reflected in the structure of the main text of this study – first, of seriousness, then, of reality – reflects the objective sequence of methodological search implemented by the author. At the same time, the main provisions put forward for defense reflect the reverse sequence characteristic of the process of interpretation of legal texts and application of law, since it is in this section that the relevance of the concept of the semantic limits of law to the problem area of philosophy and law theory can be most clearly demonstrated.

The practical program, based on the content and conclusions of this study, is to provide the principle of reasoning and arguments for law enforcement and interpretative decisions in the area of “penumbra”, as well as law-making in innovative areas, primarily related to the consequences of the medial turn and its components. From a pragmatic point of view, it may not be necessary to change the verbal final point of legal reasoning (i.e. the “it is absurd” formulation). If we evaluate the situation from the point of view of sociology, references to the absurd are perceived as self-sufficient if they correspond to common sense (i.e., there is no explicit counterargument to the conclusion of absurdity). Common sense can be figuratively explained as the “unconsciousness” of legal rationality.

Let us now try to assess the application of the concept to individual representative examples. Since the present study focuses primarily on the problems of the area of “penumbra” in the context of the medial turn, the first of these examples will relate to the innovative phenomena of virtual worlds.

We emphasize that this theoretical modeling is conditional and preliminary, and not final, because for an unambiguous conclusion on a case-by-case basis it is advisable to conduct empirical research in the field of sociology and/or economy. Examples of this

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kind of theoretical modeling are, in fact, distributed throughout the text of the paper, so let us focus on only a few of them.

Three variants of the first example are related to the topic, which has already become a classic one in legal works related to game studies – the question will be about virtual property. The assessment is carried out in the “borderline area” of legal interpretation.

Example No. 1 (Scenario А). Online games’ virtual property (free circulation). Let us consider a generalized example of legal collisions related to the turnover of objects in virtual environments simulated by computer media, which at the same time are the subject of turnover for real money.514 For the purposes of this example (Scenario A), let us look at the situation in which virtual objects can be alienated after acquisition and can be freely shared between players for real money.

The special object of the relationship in this case is an object whose “existence” is imitated in the virtual environment. It can be purchased by the user for real money from the game company and (or) from another user. For the purposes of this mental experiment, we do not address industry-specific legal qualification issues, but rather seek to provide a fundamental assessment of whether or not it is absurd to apply law to such an object.

In the light of the proposed methodology, the virtual object is considered as an external referent of value (hereinafter referred to as the “ERV”), which expresses the value corresponding to such a generalized symbolic media (hereinafter referred to as the “GSM”) as money. Since money is the “unconditional” GSM, we can already conclude that the subject is “serious” on this basis. Since one of the criteria of the semantic limits of the law is satisfied, it is at least possible to apply procedures of “weighing” legal values in order to determine the possibility of application of law – in other words, the interference of the law in certain social relations. The application of law will no longer be absurd in itself.

514 A detailed description of such mechanics is given by the author earlier, including in the following article: Arkhipov V.V. Virtual Property: Pervasive Legal Problems in the Context of Computer Games Industry Development // Zakon. 2014. No. 9. P. 69–90.

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However, how real the object is? To assess the “reality” of the object, we will assess the functional adequacy of the object to one of the objects included in the “core” of the legal norm of interest to us. These can be, for example, norms of civil or criminal law on property. For example, we have established that a virtual object is used within the framework of established social practices in the same way as property is functionally used

– this is possible due to the additional condition that this object can be freely shared between players and subsequently. It is this circumstance that testifies to the functional adequacy of the special object of “virtual” relations to the object on which the relevant legal norms are focused.

In this context, there is no obstacle to the subject matter being regulated by law (which, for example, may involve the creation of special rules or the application of rules by analogy) – this will no longer be absurd, and this will no longer imply the reference to any substantial values, for example, from the perspective of moral philosophy.

This example has at least two practical meanings. First, it represents a philosophical and legal substantiation of the legitimacy of the question of the legal qualification of virtual property as such, in the same way as, for example, it was done by A.I. Savelyev.515 Second, the above approach, although it does not contain any specific guidelines as to what exactly the current legal structure should be applied to the virtual object (or what structure should be developed), it fundamentally answers the question that such relations cannot be excluded from the scope of legal regulation, for example, on the basis of Item 1 Article 1062 of the Civil Code of the Russian Federation, according to which the claims of citizens and legal entities related to the organization of games and bets or with participation in them, are not subject to judicial protection, except for a narrow circle of specifically

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

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defined cases that are not relevant for current discussion. The subject is “serious” and “real” and therefore does not belong to the isolated game world as such.

Example No. 1 (Scenario B). Online games’ virtual property (purchase from the game provider only). If we change the free circulation condition previously presented in the case of Scenario A of the first example and study cases in which an item for real money can only be purchased from a game provider, but cannot act as a tradable item on the “secondary market”, what will change? The object of social relations will lose the quality of “reality” if we compare it with such a regulated subject as property or assets.

In such circumstances, however, the subject matter will continue to be a ERV in relation to money as a GSM, and it would not be absurd to apply law to the relationship with it, but whether or not to apply law to it would have to be determined on the basis of a balance of legal values. For the time being, in such cases, it is in terms of the property aspect (rather than the tax aspect) that such an approach is expressed in cases, including those mentioned in this study, in which the courts have taken a position on the qualification of the relationship between a player and a game company based on a license agreement.

Example No. 1 (Scenario C). Online games’ virtual property (no connection to real money). The variations of the virtual property case would be incomplete if we did not consider another example for theoretical purposes – cases of virtual property, which refer exclusively to the “imitation plane” characteristic of virtual reality. Virtual objects of this kind cannot be traded for real money with other users and are not purchased from the game company. They refer exclusively to the games’ fictional world.

In this case, both “seriousness” and “reality” are missing. The virtual object itself is not related to GSM – it is not an ERV, at least from the perspective of ownership. At the same time, the functionality of the object is of fantasy nature in relation to property, assets and similar concepts. The application of law to this special subject of social relations, which we assess in a specific “proprietary” perspective will be absurd by definition.