Материал: disser_arhipov

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CONCLUSION

Let us conclude the research by summarizing its main provisions. The reason for the hypothesis on the semantic limits of law was, at first glance, a rather narrow area of problems related to determining the possibility of law interfering in the relations between players of multiplayer online games (both among themselves and with game companies). Traditionally, such issues are treated as private matters of civil and (or) information law. At the same time, we were convinced that the problem can be understood in a wider context of the theory and philosophy of law, since its essence lies in clarifying the possibilities of interpretation and application of legal norms to social relationships mediated by media space. This term includes not only computer-simulated spaces, but also communicative practices that are similar in their sociocultural content, including games and creativity in general. The features of the current level of development of the information society, which can be expressed in the concept of “medial turn” (we are most interested in its digital and game implications), allow conceptualizing the problem as a problem of searching and defining the semantic limits of law558 in current socio-cultural conditions.

This problem correlates with the problem of both the interpretation of legal texts and application of law, and the ontology of law. From the point of view of the interpretation of law, the main question is in what cases the result of interpretation will be absurd, contrary

558 From the methodological point of view, it is acceptable to consider the category of the semantic limits of law as a kind of “legal construction” in terminology, for example, of A.F. Cherdantsev and N.N. Tarasov. Actually, the letter author cites A.F. Cherdantsev in the relatively recent publication on this topic: “A variety of models in jurisprudence are legal constructions – a gnoseological category, a tool, a means of cognition of legal phenomena. Legal structure is a model of public relations regulated by law or separate elements serving as a method of cognition of law and public relations regulated by it” (the following work is quoted: Cherdantsev A.F. Logico-Linguistic Phenomena in Law, Legal Science and Practice. – Ekaterinburg, 1993. – P. 131). N.N. Tarasov himself emphasizes that “retrospectively, one can confidently assert the existence in positive law of legal structures that do not have a corresponding theoretical awareness, that take shape spontaneously and work in a latent manner”. See: Tarasov N.N. Legal Constructions: Theoretical Representation and Methodological Grounds of the Research // Legal Technique. 2013. № 7 (Part 2). – P. 21. the ratio of “virtual” and “real” in the context of common sense of law, as we believe, can be considered as an example of reflection of a part of a kind of implicit legal structure.

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to common sense – but not because of a violation of the rules of formal logic, but because of a violation of a different, semantic order. From the point of view of legal ontology, we are talking about the limits of law as such – in the sense in which L. Fuller spoke of this in “Anatomy of the Law”, citing absurd examples to demonstrate the thesis that positivism depends on the denial of the relationship between law and morality because positivism itself is shaped in a certain way of constructed social reality. In the course of the study, we have successively explored possible approaches to explaining that category of absurdity that is intuitively recognized in connection with the problem of the semantic limits of law and relates, first of all, to the problem of relation of law to the artifacts of media reality, which may include simulacra. Hence, for example, attempts to reconstruct the semantic limits of law based on the philosophy of morality were not crowned with success – the moral and legal discourse is ultimately limited to the process of analyzing substantial values, but in the same statement, according to which Article 105 of the RF CrC (“Murder”, one of the main examples of the study) cannot be extended to murders in computer games, it seems that the matter is different. This statement does not seem to contradict morality or be simply contradictory to morality, it seems meaningless – in fact, absurd or contrary to common sense. The problem is that, for all the obviousness of the answer to the modern reader (by the way, not the fact that such an assertion will be obvious to anyone in the future), there is no rational explanation of why such a question is absurd in principle. Complicating matters is the fact that, if we move from murder to theft, it is in the context of exactly the medial turn and the digital economy that reference to the absurd will no longer be convincing.

As a result, a solution to the problem was proposed and justified, based on the application of two criteria applicable to the object of the relevant social relationship (in the context of the study – the artifact of media reality), designated as “the criterion of reality” and “the criterion of seriousness”. The first of these criteria is formal, relates to the

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problem of legal interpretation, and reflects the principle by which the disputable cases of legal interpretation, which, in H. Hart’s terminology, relate to the “penumbra”, can be resolved. The functional relationship between the object, which forms the core meaning of the concept used in the legal text, and the object of the social relations concerned, makes it possible to consider the interpretation which implies such an object to be not absurd. The second of the proposed criteria is substantial and it is related to the problem of legal significance of the objects of social relationships. Both “family resemblance” (L. Wittgenstein) of the central and peripheral meaning of the concept used in the legal text and the legal significance are determined on the basis of the possibility of qualification of the object of social relationships as an external referent of value in the sense of theoretical sociology, correlated with certain generalized symbolic media.

In conclusion, we present one more reasoning that seems important to us. From the point of view of theoretical sociology, generalized symbolic media, corresponding external referents of value, and “procedural aspects” – for example, how a connection between them can be established – is a product of social reality. At the same time, the methodology of social constructionism indicates that positive law (regardless of the type of legal understanding in relation to law in general) is one of the tools of social construction of reality. From the social constructionist methodology, in particular, it follows that a court decision, at least one that was rendered by the highest court and is not subject to further review, should be considered as an act of constructing social reality. At the same time, other tools for structuring social relations, not necessarily related to or classified within the established paradigm of philosophy and theory of law, as well as branch disciplines, can also be involved in the social construction of reality and, as a result, in the creation of external referents of value. In the light of this theoretical observation, we believe that the “reanimation” of L. Fuller’s concept, which he designated as “eunomics” (the science of “good laws” – Greek “eu” and “nomos”) of the organization of society, if it does not have

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significant fundamental values, it will be very informative in a propaedeutic way of explaining the principles of the application of the theoretical-sociological concept of generalized symbolic media to law.559

Thus, L. Fuller, in the historical result of his reasoning, proposed to abandon the division of the methods of regulating social relations into “legal” and “other”. Alternative classification suggested their separation on the basis of the principle of decision making, which, in our interpretation, is an act of social construction of reality. These principles included: legislative activity, contract, custom, court (those which conventionally can be classified as related to law), but also mediation, managerial decision, vote or random decision (those that conventionally could not be classified as legal).560 If such a decision in society becomes generally significant and generally binding, although it does not necessarily establish provisionally binding norms with these qualities, then it can be assumed that the object of implementation of the corresponding “social order principle” is an external referent of value. This way of reasoning implies that with the help of positive law one can “communicate” the social and currency value to almost any subject. However, to put it poetically, this contradicts the spirit of our methodology as a whole and takes us to the plane of the eternal dispute between positivism and jusnaturalism. Why?

The implicit premise of the entire study is as follows. If a law enforcement decision is aimed at a public relations, the subject of which is unserious (does not have socio-currency value) and at the same time of fantasy nature (its functionality does not correspond to the functionality correlated to the core meaning of the conceptword used in the respective legal text), this decision will be absurd, and therefore it cannot be applied and (or) must be canceled. This implicit premise obviously has second level implicit premises:

559Arkhipov 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.

560Ibid.

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it is unacceptable to make law enforcement decisions in relation to those public relations, the subject of which, including (in addition to being fantasy nature), has no social currency value at the time of making such a decision. In this case, without a doubt, we are talking about the methodology of sociological jurisprudence.

in some cases, law enforcement decisions cannot be applied and (or) they should be repealed even if they are legally formally in compliance with all procedural and substantive rules. Likewise, without a doubt, we can consider this premise as appropriate to the methodology of natural law.

With a bit of irony, it can be noted: it is very likely that we are approaching a distance of perilous proximity to substantial jusnaturalism. The danger of such proximity is due to the fact that the substantial theories of natural law are ultimately the subject of faith, and faith in the field of legal science may well turn out to be subjective. However, allow yourself an alternative interpretation, which, we assume, will allow to soften this possible blow.

In fact, this is not about substantive jusaturalism, but procedural and, as a result, another possible interpretation of the “minimum content of natural law”, which places our concept of the semantic limits of law in the conditions of the medial turn in the context of the methodology of inclusive positivism. Positivism with sociological sense.561 What should be said about the “minimum content of natural law”? H. Hart spoke of the biological survival of man as a greater premise of the syllogism, as a result of which we can establish such content. However, human is not only a biological being, but also a social one. Physical abuse of the body can destroy a person as a biological being. Intellectual violence over common sense can destroy a person as a social being. After all, absurdity

561 Let us make an assumption that the presented concept is quite in line with the national tradition and can be correlated with the approaches laid down by L. Petrazicky, in particular, that law is constructed by the consciousness of the person and does not exist outside the consciousness. See: Polyakov A., The St. Petersburg School of Legal Philosophy and Russian Legal Thought // Russian Legal Realism / Ed. by Brozek B., Stanek J. and Stelmach J. – Cham: Springer Nature Switzerland AG, 2018. – P. 7.