Материал: disser_arhipov

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“explosives” in Minecraft computer game, which presupposes such kind of interpretation as if it was a matter of real objects,3 or several cases related to the application of property law to relationships of virtual property in other multiplayer online games.4 However, it is just an illusion that the legal problems reflected in these decisions are isolated and funny. At the heart of this study is the fundamental belief of the author that the enforcement of such decisions, in fact, indicates the presence of general and serious,5 rather than an isolated and funny problem, which at the same time is not confined to the particular problems of civil or information law. This problem is much broader, and it is connected to the philosophical and legal discourse of legal consciousness and legal culture, as well as to the rethinking of the dogmatic aspects of the operation of law, the application of law, the interpretation of law and law making. Law as a social institution is conservative, the historical development of law was focused on that kind of social reality, in which the ethics of “real” and “serious” dominated, while the game element was for a long time ousted from the public consciousness and was tabooed.6 The contemporary

3 See: Roskomnadzor Asked not to Ban Minecraft Because of the Recipe of Dynamite, February 03. 2017 [Electronic resource] // RBC Information Agency. – [Site]. – URL: https://www.rbc.ru/technology_and_media/03/02/2017/58946a839a7947e35f09cc7d_and_media/03/02/2017/58946a839a7947e 35f09cc7d (accessed: 04.07.2018). The decision of the court that is referred to in the material cited: Decision of the Zavodoukovsky District Court of the Tyumen Region of 12 July 2016, Case No. 2–662/2016. – [Website]. – URL: https://zavodoukovsky–– tum.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=doc&number=25808719&delo_id=1540005&new=0&text _number=1 (accessed: 02.10.2018). The main feature of this case is that it really belongs to the “area of penumbra” – unambiguous criteria for evaluating such information, in contrast to other types of information prohibited from dissemination on the Internet, were not established at the time (as well as at the time of writing).

4 An overview and analysis of selected representative cases is provided, inter alia, in the following publications: Ostanina E.A. Grounds for Joining a Multiuser Online Game – Contract with the Participation of Consumers [Electronic resource] // Law in the Internet: Collection of Articles / Ed. by Rozhkova M.A. Moscow: Statute, 2018. – Access from the legal system «ConsultantPlus» (accessed: 02.10.2018).; 70.Arkhipov V.V. Virtual Property: Pervasive Legal Problems in the Context of Computer Games Industry Development // Zakon. 2014. No. 9. P. 69–90; 124.Semenyuta B. Online Games: Legal Nature of the Relationships // Intellectual Property. Copyright and Neighboring Rights. 2014. No. 8. P. 38–45. An in-depth analysis of the legal issues of virtual property from the perspective of civil law is also presented in the works of A.I. Savelyev, in particular in Chapter 6 “Digital Content and Virtual ‘Property’” of the book: Savelyev A.I. Electronic Commerce in Russia and Abroad: Legal Regulation. 2nd Edition M.: Statute, 2016. – 640 p. – Access from the legal reference system «ConsultantPlus» (accessed: 02.10.2018), as well as in the article: Savelyev A.I. Legal Nature of Virtual Objects Purchased for Real Money in Multiplayer Online Games // Civil Law Herald. 2014. No. 1. P. 127–150.

5 As will be shown below, the word “serious” in the context of this study is used not simply as an adjective corresponding to a light literary style, but as a special term referring to the theoretical and sociological concept of generalized symbolic media. For more details, please see § 6 Chapter 2 of this research.

6 Assessments of this fact by cultural studies scholars are quite typical. For example, O.S. Potapova notes, “at the beginning of the XX century it is unlikely that anyone regarded the newly invented cinema as a new art form. Achievements of technical progress excited and amazed the audience, but did not encourage thinking about the place of cinema in the cultural space. Now the situation has changed dramatically: there is real art, but Hollywood blockbusters are often condemned.

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informational culture in the general conditions of medial turn can be characterized, at the same time, by the term “game turn ” (this term is conventional, because here it is just used as a figure of speech; the characteristic may not be exact – in philosophical, psychological and sociological sense, perhaps, the turn is more towards “unserious”, rather than to “game”). In addition to the unprecedented development of various game practices in mass culture, caused by the fundamentally new pace and quality of information exchange technologies, there are more and more situations in everyday life that can be considered controversial in the light of possible law enforcement – among other things, this problem intensifies new legal restrictions and rules for the dissemination of information, which, in turn, is due to the development of concepts of state sovereignty and their extension to the informational space.7 Under which conditions can a joke, that, as a rule, is a phenomenon of “unserious”, be recognized as an extremist material?8 Can a piece of art based on the “imaginary” and not the “real” contain legal qualities of an insult?9 It appears that these

Computer games, which gained a certain cultural space at the beginning of the XXI century, are equally often criticized for undue influence on the minds of the younger generation. Psychologists warn of the possible negative impact of games on the consciousness, and in such an environment, rarely anyone says that computer games claim to be a new kind of art”. See: Potapova O.S. Computer Games in the Culture Space // Proceedings of Nizhny Novgorod University Named after N.I. Lobachevsky. 2010. No. 4 (1). P. 349–353.

7 Thus, for example, A.A. Efremov notes that the trend of “sovereignty” in the information space is expressed, in particular, in the establishment of rules regarding “information, the dissemination of which is prohibited”, the activities of organizers of distribution and information and bloggers (the rules in respect of the latter are now abolished), restrictions for foreign media, blocking information resources that violate the rules of processing personal data, the introduction of additional requirements for operators of communication and organizers of information dissemination. See: Efremov A.A. Formation of the Concept of Information Sovereignty of the State // Law. Journal of the Higher School of Economics. 2017. No. 1. P. 202. See also: Efremov A.A. Trends in Development of Legal Regulation of the Information Space // Bulletin of the South Ural State University. Ser. Law. 2017. Vol. 17. No. 2. P. 80–83; Efremov A.A. Protection of the State Sovereignty of the Russian Federation in the Information Space. Moscow: Norma, 2017. – 128 p.

8 Public significance of this problem caused the adoption of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 28 June 2011 No. 11 «On judicial practice in criminal cases on crimes of extremist orientation» [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 02.10.2018) with the subsequent amendments reflected in the Resolution No. 32 of the Plenum of the Supreme Court of the Russian Federation of 20 September 2018 «On the introduction of amendments to Resolution No. 11 of the Plenum of the Supreme Court of the Russian Federation of 28 June 2011 «On judicial practice in criminal cases involving extremist crimes». [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 02.10.2018).

9 In this case, we are talking about artworks with recognizable or practically identical real prototypes, including historical figures. The question, however, can be formulated in the opposite way: to what extent is it acceptable to use real or living people as prototypes for artistic works? It is noteworthy that, in the current context, both in theory and in practice, personal data legislation can be applied to such cases – in terms of the protection of personal data of real prototypes of characters in artworks that would not have been possible without the use of such personal data. It is no coincidence that Item 8 Part 1 Article 6 of the Federal Law of 27.07.2006 № 152-FZ "On Personal Data" provides as a separate basis for processing personal data “literary or other creative activity”, but on condition that the rights and legitimate interests of the subject of personal data are not violated.

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issues, particularly topical for the society at this stage (in previous times the rates of production and dissemination of information were lower, and such questions arose less frequently), form a single context that may be subjected to theoretical generalization, in which the main issue will be the following: is it possible to frame in a single concept, partly related to philosophy, and partly to the dogma of law, a conventional boundary, the violation of which would lead that a reference to law in case of a clash with certain phenomenon of media reality is absurd, contrary to common sense, and how it can be identified? This is a question that, in a sense, is related to the concept of the “open texture” of the legal language suggested by H. Hart,10 and can be interpreted in this case as a problem of interpretation of concept-words used in legal texts and hence as a problem of semantics in law.

To a certain degree, the question has, in fact, already been indirectly addressed by the philosophy of law. Here, for example, is a quotation from L. Fuller’s “Anatomy of the Law” (1968) (note that from the point of view of philosophical and legal methodology, this book can be correlated with the continuation of at least a part of the tradition of “procedural natural law” of this legal theorist and the development of ideas proposed by the author of this work,11 taking into account the subsequent development of this discourse):

«Within any society there are contentions which run so counter to generally shared assumptions that they would be rejected out of hand by any judge of sound mind

(emphasis added – V.A.). A man kills his father; in answer to a charge of murder he pleads that his father was a virtuous man with a firm belief in heaven; the taking of his life,

10As noted by V.V. Ogleznev, “the tendency of the rules to have a ‘peripheral vagueness’ (fringe of vagueness) [1. P. 126], i.e. to become uncertain in borderline cases, is called by Hart as the “open texture” of the rules (and the language as a whole) [1. P. 131]. Adding, however, that the “open texture” of the legal rules should be regarded as an advantage rather than a disadvantage, in the sense that it allows a reasonable interpretation of the rules at a time when they are applied in situations and problematic cases that their creators did not foresee and could not foresee”. See: Ogleznev V.V. «Open Texture» of Legal Language // Proceedings of Tomsk State University. Philosophy. Sociology. Political Science. 2016. No. 2 (34). PP. 237–238. Here V.V. Ogleznev refers to the book “Concept of Law” by H.L.A. Hart in translation into Russian, which (the translation) he co-authored, see: Hart, H.L.A. The Concept of Law (in Russian) / Transl. from English; under the editorship of E.V. Afonasin and S.V. Moiseev. St. Petersburg: Publishing House of Saint Petersburg Saint University, 2007. – 302 p.

11See: 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. The author’s abstract of the author’s Candidate’s Thesis was published in the “Russian Yearbook of Law Theory” in 2011 (issue for 2009), see: Arkhipov V.V. Concept of Law of Lon L. Fuller // Russian Yearbook of Law Theory. 2011. No. 2–2009. – P. 708–711.

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therefore, dispatched him into an infinity of happiness such as he could never enjoy on earth; one who confers such a boon should be rewarded, not punished. An official embezzles a large sum from the state; he answers the charge against him by citing a preamble of the Constitution declaring that the state exists to promote the greatest happiness of the greatest number; the money he took made the defendant very happy; the resulting infinitesimal diminution in the wealth of every other citizen could not possibly produce a perceptible decrease in his happiness. (If these illustrations seem out of place in a serious context like the present, it may be remarked that St. Thomas Aquinas dealt at some length with the problem of the first; Jeremy Bentham gave earnest attention to the issues presented by the second.)… Contentions like those just suggested are not ruled out of order by any statute, judicial decision, or custom. Their rejection does not depend on law; on the contrary, it may be said that the law depends on their rejection in the forum of ordinary lay opinion. Some extralegal consensus on what is clearly out of bounds is essential to shrink the periphery of explicit law to workable dimensions. Paradoxically, the positivist who insists that all true law is explicitly made is the beneficiary of this silent exclusion; without it his “law” would become too chaotic a thing to offer any anchorage for his faith».12

L. Fuller is cautious and does not indicate unequivocal assignment of the problem to the discourse of the philosophy of morality. “Anatomy of the Law” itself was written later than “The Morality of Law” (1964),13 and this approach is fully justified in the context of the development of the views of the scholar. In some cases, law cannot be applied because such an application would be absurd, and not contrary to morality in the strict sense of the word. However, why would it be absurd? The answer to this question, to which this study is largely devoted, is not as simple as it might seem if we consider situations that are less

12Fuller L.L. Anatomy of the Law (in Russian) / Transl. from English by V.V. Arkhipov // Russian Yearbook of Law Theory. – 2009. – No. 2. – PP. 313–314. In Russian version of the text the quotations from English-language sources were given in the translation of the author of the study. However, hereinafter, the quotations from English-language sources in this English version of the paper are reproduced from original sources, even though the Russian translation is indicated as the primary reference to keep coherence with the Russian version of the text. In this particular case the English text is quoted from the following edition: Fuller L.L. Anatomy of the Law. New York and Toronto: The New American Library, 1969. PP. 177– 178.

13See: Fuller L.L. The Morality of Law. New Haven and London: Yale University Press, 1964. – 202 p. The book was translated into Russian and published in 2007, see: Fuller L. L. The Morality of Law (in Russian) / Transl. from English by L. T. Danilova under the editorship of A. Kuryaev. – Moscow: IRISEN, 2007. – 308 p. For the nuances of translation from the point of view of the author of the present study, see: Arkhipov V.V. «The Morality of Law» by Lon L. Fuller: on the Publication of the Russian Translation of the Book // Proceedings of Higher Education Institutions. Jurisprudence. 2008. No. 5 (280). P. 113–121. The peculiarity of L. Fuller’s approach, who often identified himself as a supporter of “procedural natural law”, implies little attention to substantive moral values. “Naturalness” in his natural law approach is the naturalness of reason and, precisely, common sense, which forms the social reality, the picture of which is shared by the subjects of law.

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clear for understanding than those presented in the above quotation are.14 In addition, let us pay attention to the reference to the semantics – the fact that law depends on the negation of positions that are contrary to common sense, means that the semantics of law has limits. However, we have to emphasize that L. Fuller, for quite objective reasons, could not yet in the 1960s evaluate fundamentally new and rich empirical material related to the virtual reality of the XXIst century.

In modern borderline situations of law associated with media reality, we need to rethink the problem of the absurd in the interpretation and application of law, as well as in lawmaking. We can often read or hear about the relationship between law and rationality, but very rarely about the relationship between law and absurdity. It is so rare that the last question is often misplaced as self-evident.15 As a result, when a case becomes serious, and a truly deep rationale is needed to justify why a particular enforcement decision or rule (which at the same time may not contradict morality – neither in a mild form, nor in the case corresponding to the “Radbruch’s Formula”16) are absurd17 so that they cannot be

14 In anticipation of the content of the study, if we look at the example of multiplayer online games, it will be quite clear from the point of view of common sense why we do not extend the disposition of Article 105 of the Criminal Code of the Russian Federation (“Murder”) to the “murder” of computer game characters, even if within the game they relate to the word “human”. However, in this sense, it is much less obvious whether or not it is permissible to apply real law to the relations between players whose subject matter constitutes a turnover of “virtual” values for “real” money. As S.L. Budylin, for example, notes, the decision of the Supreme Court of the Netherlands HR31-01-2012, NJ 2012, 536 reflects the approach that virtual property in the online multiplayer game RuneScape should be considered as property. “According to the lower court, in this game the owner of the virtual objects has ‘de facto and exclusive domination’ over it, i.e. the possibility of their sole use and disposal (as in the real world the owner has dominion over things). After the objects were transferred to the accused, the victim lost this domination, and the accused acquired it. This means that the ‘magic objects’ satisfy the property attributes formulated in the ‘electricity theft case’”. See: Budylin S.L. The Case of Non–Material Fish and Other Stories. Comparativist’s Notes. – M.: «Infotropics Media», 2017. – 308 p. – Accessed from the legal reference system «Garant» (accessed: 06.02.2019).

15Here it is appropriate to quote the philosopher F. Girenok: “The absurd turns the real into something terrible, dangerous, into something from which you want to escape, hide, pretend that you are not there. The inability to evade the meeting leads to aggression, to an outbreak of fear and anger”. See: Girenok F. Absurdity and Speech. Anthropology of the Imaginary. – M.: Academic Project, 2012. P. 44.

16B. Bix focuses on two components of the “Radbruch’s Formula”: «(1) The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as “flawed law,” must yield to justice. (2) Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely “flawed law,” it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve Justice». See: Bix B. Radbruch’s Formula and Conceptual Analysis // The American Journal of Jurisprudence. – 2011. – Vol. 56. – P. 46. B. Bix cites a classic work by G.