Материал: disser_arhipov

298

An observer, if he does not know about chess, will not understand what is going on. From the general view of the game, he can understand that it is a game, although the meaning of the arrangement of the pieces can slip away from him. If the observer knows the rules of the game in theory, he can generally understand the situation and even predict it a little bit, but many things can still seem strange to him. Here A. Ross means not the “basic” rules of the game, but the strategy and tactics of the players. It turns out that knowledge of the “basic” rules of the game is no longer enough, and you need to understand a broader theory. In addition, the individual goals of the players – it can be not only a victory, but also, for example, the desire to experiment – also predetermine the understanding.545

Expanding the analogy, A. Ross notes that we are dealing with a sequence of human actions that can theoretically be interpreted as a natural process (especially given that people move physically and their actions accompany physiological processes), subject to natural laws. However, the latter do not allow us to explain and predict the movements of figures. Equally curious is that the interpretation of events from the perspective of chess theory will be different: a number of things at all will be irrelevant to the analysis. For the theoretical analysis of the game itself, the physical movement of figures is secondary, as are many other “external circumstances”, including, in general, the identities of the players themselves. А. Ross emphasizes that “understanding” in this case does not imply a causal relationship, but rather a mutual determination of events through the rules of the game. However, it is critical that the players are in a fellowship, since their goals, interests and actions are determined by something more than each separate player. Such involvement is intersubjective and implies that within one game the interpretation of the rules and events must be the same, otherwise there will be no game as such.546

545Ibid. P. 12.

546Ibid. P. 12 – 13.

299

А. Ross is drawing a logical analogy with social phenomena that follow the same principle, and proceeds to the analysis of the rules of the game within this context. The author singles out the “primary rules” of the game of chess – it is about how the pieces move, what it means to take a piece, etc. These rules have a direct and imperative abstract character, thus differing from the chess theory, which, unlike them, is determined by the interest to win the game. Violation of the “primary rules” will cause a protest, but violation of the rules of theory may, perhaps, only cause bewilderment.547 «A stupid move can arouse astonishment, but not a protest».548 The author further concludes that it is more than consistent with the main ideas presented in this paper:

«On the other hand, the rules of chess are not tinged with morality (emphasis added – V.A.); this is the result of the fact that normally no one really wants to break them (§ 85). The wish to cheat at a game must be due to the fact that a player has an aim other than merely to win according to the rules of the game; for example, he may want to be admired or to win a sum of money which is at stake. This latter aim is often present at a game of cards, and it is well known that the demand for honourable play here takes on a moral value».549

Then the author’s reasoning goes on to resolving the question of how the rules of chess arise, and this is of less interest to us in light of the goals and objectives of the study. It should only be noted that the central aspect of the analysis in this allegory for A. Ross was the aspect of the reality of law, and the author did not develop the analogy from the moment that was highlighted in the quote a few lines earlier, which is more related to the notion of the “risk of absurdity” in law. This can be explained, in particular, by the peculiarities of the historical epoch and the lesser urgency of this problem in the past. If we draw an analogy consistently and in principle, we can say that the main purpose of this work was to formulate not so much the “basic rules” of law as to determine the

547Ibid. P. 14.

548Ibid.

549Ibid. P. 15.

300

methodology of searching for such rules in conditions when the law is dynamic and changeable.

§ 6.2. “Claim to seriousness” and the ninth principle of internal morality of law

Of particular importance is the concept of the semantic limits of law for the reinterpretation of two weighty theoretical and legal concepts. Thus, the principles of morality of law of L. Fuller550 can be supplemented by one more – seriousness, and the “claim to correctness” of R. Alexy551 can also be supplemented with a claim to seriousness. Note that both approaches are in a dialectical relationship.

We have more than once dwelt upon the illustrative examples cited by L. Fuller in Anatomy of the Law. They are directly related to the problem of the semantic limits of law, and in this section we study them in more detail, but taking into account all the components of the methodological approach to the concept of the semantic limits of law that have been outlined earlier. Another central component of L. Fuller’s concept of law is the idea of the principles of “morality of law” – as it seems to us, can also be rethought in the context of the developed discourse, since the latter will allow us to put forward a concurrent (“spin-off”) hypothesis of a new possible principle of morality of law.

So, in the book “Anatomy of the Law” L. Fuller noted that almost every society may encounter approaches that will so contradict the original assumptions shared by its members, that any reasonable judge should without doubt reject such approaches. The author presented two examples. In the first of these, a man kills his father, and in the court he says that his father was a good man who believed that his soul would go to heaven after

550See: Fuller L.L. The Morality of Law. New Haven and London: Yale University Press, 1964. – 202 p. and the subsequent analysis in the candidate’s dissertation of the author: Arkhipov V.V. The Concept of Law of Lon L. Fuller. Thesis for the Degree of Candidate of Legal Sciences / St. Petersburg State University. Saint Petersburg, 2009.

551See: Alexy R. The Dual Nature of Law // Ratio Juris. – Vol. 23. – No. 2. – 2010 – PP. 167–182. B. Bix has performed a quality analysis of the Alexy’s approach a while ago, see: Bix B. Robert Alexy, Radbruch’s Formula, and the Nature of Legal Theory // Rechtstheorie. – Vol. 37. – 2006. – PP. 139–149.

301

death. Consequently, “granting” death to his father, he sent him to a blessed land, to which he could never get on Earth, and such an act not only should not entail punishment, but on the contrary should be encouraged. These examples, and the concept behind them, are of key methodological importance for the reconstruction of the semantic limits of law. Therefore, let us single out the key principle of the L. Fuller’s concept of law and present its main provisions that are relevant to the goals and objectives of this study.

On the one hand, the main content of L. Fuller’s concept of law, in the center of which lies the idea of the “morality of law”, seems to be organically, although not entirely obvious, developing an idea of the semantic limits of law. On the other hand, one of the methodological limitations of this work is the principle of studying only those phenomena that are not directly related to the basic moral restrictions on the use of law that may exist in society, and much of the semantic content of the concept of the American lawyer is based on constant references to morality. At the same time, it was not by chance that L. Fuller was not completely understood by his contemporaries, and by subsequent scholars, but his “morality,” conditionally speaking, was not the same as among representatives unequivocally attributable to jusnaturalism. Hence, the core, as will be seen, is not so much the fact that this is some kind of sui generis “procedural morality,” but that it is nothing more than fair play. But first things first.

As L. Fuller believed, the existence of various forms of law partly depends on value judgments – judgments about what should be (“ought” versus “is”).552 Each legal prescription implies a specific goal, which, in turn, determines the means for achieving such a goal, but does not justify them. This is exactly what L. Fuller draws up into the concept of “internal morality of law”. The author himself explained these representations by means of an allegory about kind Rex. Having ascended to the throne, the king decided

552 Here, as well as earlier and further on in this study, the analysis and summary of L. Fuller’s main views is based on the author’s candidate’s thesis. See: Arkhipov V.V. The Concept of Law of Lon L. Fuller. Thesis for the Degree of Candidate of Legal Sciences / St. Petersburg State University. Saint Petersburg, 2009.

302

to make many changes to the legal system – in his opinion, it no longer met the real needs of society. And the first thing, he canceled all the legislation in force, and he began to resolve every new case that arises ad hoc, trying to do without general rules, which was his first mistake. Realizing it, Rex issued new laws that contained general rules, but he decided to keep them secret from his subjects. Not publishing the laws was his second mistake. After some thought, the king published the unpublished laws, but as it turned out, all the legal norms contained in them were retrospective. As a result, they could not be taken into account with regard to future behavior, and this, of course, was his third mistake. Trying to rectify it, Rex came to such texts of laws that even the most lawyers of his kingdom in law issues were not able to understand what they were talking about, which indicated the fourth mistake. Rex made efforts to make the laws more understandable, but they were overwhelmed by internal contradictions – this was the fifth mistake. As L. Fuller notes, by this time the citizens’ discontent with the activities of their king had reached the limit, and they abandoned attempts to follow the rules of behavior, which were quite difficult to follow. As you can imagine, this turn Rex angered. The king decided to make his laws more stringent and at the same time removed from them all sorts of contradictions. However, it turned out that the requirements contained in the laws were now impossible to fulfill, and the punishments were very severe. Obviously, even under the threat of the most severe punishment, it is impossible to do what cannot be done, and this was the sixth mistake of the king. He was forced to temper his ardor and began to put the laws issued by him in order. But as long as he made all the previous mistakes, the development of public relations in the kingdom continued, and the laws of a “decent look” were outdated. Accordingly, they had to be urgently changed, changes were made almost every day and several times, and therefore it turned out to be very difficult to comply with such laws. The Rex’s seventh error, therefore, was associated with an excessive frequency of change. Finally, the king managed to bring the legislation in line with the requirements of reality