Материал: disser_arhipov

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and begin to put it into practice. However, the subjects were discouraged when the first court decisions were published – the connection between them and the previously adopted laws could not be traced. In the kingdom there was a strong opinion that all of Rex’s activity was in vain, which became completely obvious after this mistake, the eighth in a row. According to L. Fuller, King Rex, being in the darkest mood, died unexpectedly for all, and his successor, Rex II, found that power was transferred from lawyers to psychiatrists and public relations specialists to make people happy without any laws.553

Thus, law according to L. Fuller literally rests on two things: on honest word and on common sense – law is impossible without observing a minimum of common professional and communicative ethics, and also without generally shared ideas about reality, even if they can be very plastic. At the same time, speaking in the words of N.V. Varlamova, “in order not to fall into insoluble contradictions, Lon Fuller simply does not include in his concept of “procedural natural law” any requirements to the content of the norms forming the legal order”.554

As follows from L. Fuller’s theory, in order for any activity to be able to perceive the ethical aspect (and go to the plane of reasoning about morality of duty and morality of inspiration, and also – the main thing – “internal morality” of such activity), it is necessary that such activity has a communicative dimension. It can, however, be said that any activity potentially has such a dimension. Let us, however, give a rough, but illustrative example: a person drills a wall with an instrument. If this happens in a country house that is separated from other buildings, then this situation does not have a communicative dimension in practical terms (although, for example, if the process is captured on video and then used for teaching others, in this sense there is a communicative dimension, but it is

553Arkhipov 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. PP. 86–89.

554Varlamova N.V. Typology of Legal Understanding and Modern Trends in the Development of Legal Theory. М., 2010. – P. 34

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not important for the abstraction implied in the example). If a person drills a wall at night and in an apartment building, in which other tenants are currently located, then this process is not only a technical action with a physical object, but also communication, clearly expressing attitude towards neighbors. We emphasize that the presence of the communicative dimension is a necessary and sufficient condition for the operation of morality, but not yet for the operation of law. For the operation of law, the communicative dimension is a necessary but not sufficient condition. As substantiated in this research, the subject of [legal] communication should have a “social currency value”, acting as a generalized symbolic medium — in other words, acting as an “external referent of value” (or “ERV”, in the terminology of S. Abrutyn) and to be potentially convertible into other similar external referents of value, while its functionality must correspond to the functionality of the central value of the legal norm.

In turn, one of the most remarkable provisions of the concept of law of R. Alexy is that a certain “claim to correctness” is inherent in law. For the context of this study, this approach is important because the claim to correctness is one of the ways to separate law from “non-law”, which means that the conceptualization of the semantic limits of law can also follow this line.

Within the framework of the concept of R. Alexy, the thesis was suggested that the key characteristic of law and the fact that allows distinguishing law from non-law is the “claim to correctness”.555 The present study does not imply an argument for and against the conception of the German scholar as is, but if it is assumed that such a concept deserves to exist, then from the content of this study it follows that such a claim is not the only one. Earlier, we already quoted J. Huizinga, which began with the following words: “At first glance, the sphere of law, statute and justice is extremely distant from the sphere of the game. For the sacred seriousness and the vital interests of the individual and society

555 Alexy R. The Dual Nature of Law // Ratio Juris. – Vol. 23. – No. 2. – 2010 – PP. 168–172.

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as a whole reign in all that relates to law and justice”. The phrase “sacred seriousness” itself, as it seems to us, perfectly describes both the general attitude towards legal phenomena and the individual psychological experiences of those who directly contemplate law enforcement and participate in it. In a sense, the necessary quality of the whole legal is also a “claim to seriousness”. A normative phenomenon that claims to correctness, but does not claim to seriousness, is not law. Comparing this observation with L. Fuller’s theory of law, one can also confidently say that “seriousness” is the ninth principle of the internal morality of law. Both observations are a natural consequence of the concept of semantic limits of law.

Following the Fuller’s logic, however, we should also note that the rule established by the hypothetical tyrant (the evil counterpart of King Rex), even if it contradicts certain moral rules, will still remain legal if it complies with the procedural “internal morality of law”. As noted by L. Fuller, even a tyrant must abide by the principles of internal morality of law, if they want that their orders are obeyed. Developing ideas about the set of these principles, we note that the tyrant should attend not only to the fact that his orders do not contradict each other, are understandable, etc., but at the same time were not absurd. One of the important issues in this case, which must also be taken into account, is how the principle of “seriousness” as part of the internal morality of law corresponds to the principle that the impossible cannot be demanded. With the expressions where syntax is broken, everything is quite simple: it is not the same principle that the impossible cannot be demanded, it is a principle that stands one or two steps earlier, figuratively speaking, even the impossible cannot be demanded by means of a syntactically incorrect expression, but the core idea of this paper is different. The “deep” semantic absurdity we are interested in, which is apparent if we look into the examples of the attempts to apply law to the simulacra of mediareality, does not contradict the rules of formal logic, but to common

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sense. Furthermore, such “common sense” is determined by implicit generally shared assumptions – perhaps, L. Fuller meant something like this in his “Anatomy of the Law”.

The discourse of moral philosophy and the accompanying interpretations of the absurd in law suggest to proceed from the fact that common sense is explained and exhausted by morality, but this is not so. The empirical material relating to the medial turn, quite definitely, refutes this approach. Why morality in the situation with dynamite in Minecraft? It would be wrong to use a reductionist moral model and limit ourselves by it. A theoretical and sociological interpretation seems to be much more accurate, according to which the fabric of social reality is woven from threads of generalized symbolic media expressed in external referent values. It is important to emphasize that the relationship between such a model and the discourse of moral philosophy is such that these are completely different models for the description of reality. To say that morality is one of the generalized symbolic media will be wrong. The morality partly overlaps with some of the generalized symbolic media, however. This is very similar to how you can relate the system of principles of social order in the “eunomics” of L. Fuller with the types of sources of law.556 The answer actually is “no way of doing it”. These are fundamentally different models. So it is here. Thus, in the specific meaning of this paper, law cannot be absurd

– it cannot contradict common sense – otherwise law “will not appear”.557

Separately, it should be noted that since the concept of the semantic limits of law allows structuring models of application, including potential legal norms, and classifying such models into cases where it will be absurd, where it will require moral “weighing” and

556Arkhipov 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. – PP. 69–72.

557During the discussion of the text of this dissertation at the department, A.A. Kraevsky was asked how to explain the unfair or absurd law, which, for example, prohibits the production of “explosives” in computer games or prohibiting the killing of characters in computer games. In the light of the proposed conception, such laws would first need to be assessed in terms of the “criterion of seriousness” (let us assume that the “criterion of reality”, defined for a legal text is met). In this case, the assessment depends on the results of the balancing of values and the determination of the convertible socio-currency value of the respective external referents of value. It is possible to theoretically imagine conditions in which such laws would not be absurd in principle. If they are found to be absurd, it should be concluded that there is a need to “adjust” enforcement by means of legal interpretation until such time as these laws are repealed because of their absurdity

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where the application of law will fully comply with common sense, to that extent the concept is fully applicable as an analytical tool in innovative areas of lawmaking, including the legal regulation of activities in the field of robotics, big data, artificial intelligence and the internet of things. It should be emphasized here that the ideas about the semantic limits of the law are extremely important, because they demonstrate possible limitations and weaknesses in the field of algorithmization and automation of law – it is good if artificial intelligence in law can accurately reproduce the syntax of deontic logic. However, for the second level semantics, this technology should also take into account the concepts of theoretical sociology about generalized symbolic media.