Материал: disser_arhipov

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This idea, obviously, echoes one of the logical components of the above model. This observation comes closer to the thesis of the concept of the semantic limits of law about the possibility of applying the theoretical commodification method to determine the convertible social-currency value of the subject of the relation (in the spirit close to the economic analysis of law).

As a result of this study, it turns out that “absurdity” – a term that denotes the essence of the phenomenon of the semantic limits of law – is most clearly manifested in the problem of the magic circle of the classical interpretation, which implies a collision of real law with virtual reality. At the same time, the most organic metaphorical model for explaining what is absurd in law is, in turn, the explanation of law itself as a game. Comparing law and games can go far enough (and it will be justified!), up to linking the law to the rules of the game in the narrow sense of the word or to the “comparative-game” analysis of the conceptual scheme of legal rules and the rules of the same board roleplaying games – this is the most adequate example since the reality of such role-playing games is expressed in oral and verbal communication.

Perhaps the way – not the fact that such an analogy is direct – ultimately leads us to a kind of “theory of law as a game”. In fact, there are no significant obstacles to the academic validity of such a metaphor in the social-humanitarian discourse. At its core, this approach has already been implemented, for example, in psychology – it is about the transactional psychology of E. Berne (for example, his book “The Games People Play”).534 As will be shown below, in both historical and contemporary worldviews, the “unserious” is not a necessary attribute of a game. Definition of games from mathematical theory of games, actually, is quite relevant academic definition. The game becomes serious or

534 See e.g.: Berne E. Games People Play: The Psychology of Human Relationships (in Russian). – M.: Exmo Publishing House, 2016. – 352 p.

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unserious not because of its nature, but depending on what the participants connect the result of such a game by agreement (autonomous communication) or by virtue of an indication of the institution (heterogeneous communication). Even in the positive law of the Russian Federation in force at the moment of writing this work there is one bright example – it is a definition of gambling, according to which gambling is not necessarily a specific game. It is a conventional term, which denotes the agreement of a certain kind between participants of a corresponding game, which, in turn, assumes simultaneously presence of a bet and a prize. However, even though some games may be serious (and the law, in this sense, is literally a deadly serious game, and often with high stakes), it follows that the game generally contains a potential seriousness and, as a result, may represent, at a minimum, a model of serious communication.

The analogy of law and the game is not exotic – it is found in both culturological (at least, J. Huizinga) and legal (at least, H. Hart, L. Fuller, A. Ross) studies. One of the most consistent classical examples of the analysis of the analogy of games in law philosophy is presented in Bernard S. Jackson’s work “Towards a Semiotic Model of the Games Analogy in Jurisprudence”.535

This study by B. Jackson draws heavily on the previously published work of British philosopher Mary Midgley (b. 1919), “The Game Game”.536 As M. Midgley notes,

«[s]ome time ago, an Innocent Bystander, after glancing through a copy of Mind, asked me, ‘Why do philosophers talk so much about Games? Do they play them a lot or something?’… Well, why do they? Broadly, because they are often discussing situations

where there are rules, but where we are not now sure why the rules have to be obeyed. Treating them as Rules of a Game fends off this problem for the time. And should it turn out that the reasons for playing games are in fact perfectly simple, it might even solve it

535Jackson B.S. Towards a semiotic model of the games analogy in Jurisprudence // Droit et société. – 1991. – No. 17-

18.– PP. 99 – 123. – doi: https://doi.org/10.3406/dreso.1991.1105.

536Midgley M. The Game Game // Philosophy. – 1974. – No. 189 (Jul., 1974). – PP. 231–253. – URL: https://www.jstor.org/stable/3750115 (accessed: 26 July 2018).

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completely. This hope shines through such discussions as Hare's on The Promising Game537, which suggested that our duty to keep promises was simply part of the Game or Institution of Promising, and if we decided not to play that game, the duty would vanish. That suggestion is the starting-point of this paper. It has made me ask, all right, what sort of need is the need to obey the rules of games? Why start? Why not cheat? What is the sanction? And again, how would things go if we decided tomorrow not to play the Promising Game, or the Marriage

Game or the Property Game? What is gained by calling them games? What, in fact, is a Game?»538

Despite the fact that M. Midgley is a philosopher of morality and not a philosopher of law, it is not difficult to notice a significant similarity between the questions she posed and the problem of the semantic limits of law that we conceptualize. Attention to this approach may prove to be methodologically useful, including in the light of the discussion on the relationship between law and morality, since the proposed view is on the other side

– morality rather than law, while lawyers often use the term “morality” in such discussions in a very vague manner.

By the way, the ironic epigraph that M. Midgley put at the beginning of this publication is very characteristic in the context of this study – the following words by B. Shankly, manager of the Liverpool football club:

«Some people talk about football as if it were life or death itself, but it is much more serious (emphasis added – V.A.)».539

Returning directly to the views of M. Midgley, we note that the philosopher’s reasoning is based on many things, based on the moral foundations of promises. In the light of Fuller’s ideas about law, this aspect of morality certainly lies at the heart of law as a purposeful collective activity.

537See: Hare R.M. The Promising Game // Revue Internationale de Philosophie. – 1964. – Vol. 18. – No. 70(4). – PP. 398–412. – URL: https://www.jstor.org/stable/23940466 (accessed: 26 July 2018).

538Midgley M. The Game Game. – P. 231.

539Ibid.

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M. Midgley’s reasoning is based on a rethinking of Wittgenstein’s ideas about [language] games. Further it results rather interesting quote of the Australian philosopher of a morality of the Hungarian origin Julius Kovesi:

«I do not see any foundation for a claim that we call both football and chess ‘games’ because football is played with a ball, and so is tennis, while tennis is played by two people, and so is chess. Not only is this insufficient to explain that connection between football and chess which makes both of them games, but this way we could connect everything to everything else. We could turn off at a tangent at every similarity and what we would get in the end would not be a rope but a mesh.540 Balls, cannonballs, were used to bombard cities, and duelling is a matter for two people. What we need in order to understand the notion of a game

or the notion of murder is what I call the formal element. This is what enables us to follow a rule».541

At the same time, the games that gave rise to such an analogy – be it children’s games, chess or sports team games – are by no means the only example of games in human society. One of the objectives of this study, without the solving of which it is impossible to achieve its goal, is to develop a tradition of drawing an analogy between law and games, but to take into account a fundamentally new stage in the development of the games as such, and to take into account those games that the previous researchers simply could not take into account, since they were not available to them. As we shall see, these games, even in some isolation from the jurisprudence itself, have developed a kind of legal theory of their own, centered around the notion of the magic circle. At the same time, the key difference between modern computer games and their early non-digital prototypes, especially in the light of this study, is that some of the rules of the game are fixed at the level of program code, which is essential for the context of the discussion of the code as law.542

540This probably implies an analogy of L. Wittgenstein about “family resemblance”, which is based on a thread (rope).

541See: J. Kovesi. Moral Notions. – New York: Humanities P. – 1967. – P. 22. Cited by: Midgley M. The Game Game. – P. 233.

542Which Lawrence Lessig has developed and continues to develop.

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When considering the context of games and law, one cannot but pay attention to the mathematical theory of games, because the method of analytical jurisprudence involves the analysis of the meanings of words that are related to each other in a semantic relationship. Undoubtedly, language games, computer games and game theory imply a similar kindred semantic connection. Turning to the mathematical theory of games, M. Midgley notes:

«I do not want here to pursue the question about the basis of promising, so much as to investigate the notion of Games as a Closed System. This, I suggested, means that they are discontinuous with the life around them. That seems to be how the term is used in mathematics; the Theory of Games deals with a certain set of closed systems. In this use, no question arises about the reasons or motives for playing; there is no suggestion of playfulness or jollity in the ordinary sense. But when you bring the term into moral philosophy and apply it to people’s actual activities, the reasons and motives begin to matter. Any actual activity has motives, and it won’t be a closed system, optional and removable, unless the motives are of a special kind. They must not be very strong, or it will begin to matter whether we play or not; they must not be very specific, or it will begin to matter which game we play».543

It should be noted that the model of mathematical game theory, which implies the presence of parties fighting for the realization of their interests, which is consonant with the notion of law as a language game with zero sum, conceptually overlaps with the logic of R. von Ihering’s ideas about the struggle for law.

Danish law philosopher Alf Ross (1899 - 1979) is undoubtedly one of the first known lawyers of the postclassical stage of development of legal science, in the works of which the metaphor of the game, applicable to law, has found a truly consistent reflection. In the book “On Law and Justice”,544 first published in English language in 1959 (in Danish language the book was published in 1953) – two years before the publication of “The Concept of Law” by H. Hart – the author cites the allegory of two chess players and an observer.

543Midgley M. The Game Game. – P. 236.

544Ross A. On Law and Justice (1959). – Clark, New Jersey: The Lawbook Exchange, Ltd., 2004. – 383 p.