Материал: disser_arhipov

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applied, suddenly there are no rational arguments that are so necessary for legal discourse. Nevertheless, as L. Fuller noted in the same “Anatomy of the Law” with reference to Aristotle, the study of pathology may give more results than the study of a healthy condition. Pathologies in law are not limited only to the violation of the rules of legal technique, certain norms or principles, or anything else familiar and understandable. There are much more “hard” pathologies that are very difficult to recognize – they are so close at times to us, while we mainly look into the distance or the depth and do not see them. L. Fuller, in particular, not without irony noted:

«In attempting to convey an understanding of the problems faced by those who cultivate the garden of the law, we shall be especially concerned with situations where things go wrong, not radically and obviously wrong, but subtly and inconspicuously wrong. One cannot learn much about the problems of horticulture by viewing a garden laid flat by a hurricane or dried to straw by a drought. But one can often learn a great deal when one sees two plants of the same species growing in slightly different locations where one thrives and the other falters. So our primary concern here is not with gross failures of law – corruption, lawless despotisms, and tyrannical abuses of law – but with smaller miscarriages that come through inattention and imperceptiveness and in spite of reasonably good intentions… Another analogy – from medicine – may be helpful at this point. Aristotle long ago observed that we can learn what health is by considering situations in which it is missing. When we enjoy health it seems a thing too simple and transparent to offer any entry for analysis. “Only in ill health does one realize the intricacy of the body…” So our interest here in diseases of the law is clinical, not morbid. We shall accordingly address ourselves chiefly to the subtler forms of legal pathology and not to missing limbs and organs».18

Radbruch which was written in 1946 and published in English in 2006, see:: Radbruch G. Statutory Lawlesness and SupraStatutory Law (1946) // Oxford Journal of Legal Studies. – 2006. – Vol. 26. – No. 1. PP. 1 – 11.

17At the same time, the scope of semantic limits of law does not exclude the cases when the law is contrary to morality, although they are not the only ones anymore, and, moreover, the contradiction to morality is probably not an absolute, necessary and sufficient sign of exceeding the semantic limits of law. From the perspective of the methodology developed in this study, it would not be appropriate in some cases to say, “the law is not applied because it is contrary to morality”. Not every breach of morality will be an indication that the law is beyond semantic limits. Note that the word “morality” in this context is used in the broad sense in which it is used in most discussions about the relationship between law and morality in philosophical and legal discourse.

18Fuller L.L. Anatomy of the Law (in Russian) / Transl. from English by V.V. Arkhipov // Russian Yearbook of Law Theory. – 2009. – No. 2. – P. 210. Original wording in English quoted from: Fuller L.L. Anatomy of the Law. New York and Toronto: The New American Library, 1969. – PP. 16–17.

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We will follow this methodological approach in our work, but we will also take into account that the problems of finding the semantic limits of law under investigation are in fact a more than urgent problem for the modern context of shifting the general civilizational paradigm, which implies not just a change in the means of production in the digital economy, but also a change in social relationships as they are.

We emphasize that references to the works of L. Fuller at the beginning of work are not accidental for one more, very significant reason. The problem of the semantic limits of law can be re-stated as a problem of the reasonable limits of meaningful [legal] communication. As noted in the previous works, «the idea of communication (communication) in a certain sense permeates all the work of L. Fuller».19 As the scientist noted, “communication is something more than a means of staying alive. It is a way of being alive».20 Naturally, another, more detailed quotation explaining this approach of the researcher is given by A.V. Polyakov as an epigraph to the article “The St. Petersburg School of Legal Philosophy and Russian Legal Thought”, published in the book “Russian Legal Realism” (2018): «I believe that if we were forced to select the principle that supports and infuses all human aspiration we would find it in the objective of maintaining communication with our fellows… Man has been able to survive up to now because of his capacity for communication».21 It seems that the approach proposed in this paper is being developed in the context of the Saint Petersburg School of Legal Philosophy. The ideas of the modern mediaphilosophy which define a part of the methodology of this study, are necessarily connected to the idea of communication as understood in the social and humanitarian discourse. In turn, according to A.V. Polyakov, in the light of the

19See 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. – P. 63.

20Fuller L.L. The Morality of Law. – P. 186.

21Polyakov 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. 1.

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development of post-classical legal theory, social and legal reality should be considered as communicative reality, and

«[w]hen a person observes the social realm, he perceives all the “social” phenomena as an infinite and multifaceted confluence of standards, accounts, emotions, judgements, time horizons, associations, etc. However, this large range of social phenomena is always subjectively structured, i.e. organized in a certain way. This organization is determined by three key factors: the kind of linguistic unity which arranges information in a certain way and transforms it into an endless, infinite text; the distinctive cultural properties forcing us to focus on some social phenomena while ignoring others; and one’s particular cognitive frameworks essential for any perception at all. It would not be possible for a man to exist as a social being without the ability to structure the diversity of the social reality surrounding him. We need to be able to arrange information, filter it and prepare it for possible communication to another».22

The content of this study, in a certain sense, is aimed precisely at the analysis of those principles that allow to structure social reality for the purposes of legal communication. Thus, in this paper, we propose to eliminate a theoretical gap, which implies the lack of a sufficiently developed approach to explaining in which cases law may contradict common sense in those cases that are related to the context of the medial turn, by developing a philosophical and dogmatic category of the semantic limits of law.23 It will make it possible to substantiate cases where the interpretation, application or creation of law contradicts common sense in the sense in which this category determines the boundaries of our social reality in media space. The concomitant goal of this study is to

22Ibid. P. 21.

23In general, the debate that law (or legal regulation), especially in the digital age, has limits, is evolving quite rapidly and the general problem of finding such limits is being addressed by different researchers independently of each other. In parallel with the latest publications of the author of this study on the limits of law as such (though in our case, semantic), N.A. Dmitrik’s article "Limits of Legal Regulation in the Digital Age” was published in a succinct manner. The author singles out “four groups of factors that are beyond the legal regulation of public relations. These include the homogeneity of regulated relations, cognizability of the rules established by the norm, territorial limitation of the state and the presence of private life. As the presence of such limits is not taken into account by the positivist doctrine prevailing in legal science, it entails problems both in law-making and law enforcement”. See: Dmitrik N.A. The Limits of Legal Regulation in the Digital Age // Information Society. 2018. No. 3. P. 47. It can be said that the author adheres to the sociological-legal approach, pointing out that a reasonable approach to the development of legal regulation, taking into account the limits under consideration, should be based on a balance of interests, but such a balance should not be “imposed” imperatively – the law should consolidate the existing balance in society.

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dispel the myth that absurdity in jurisprudence arises there and then, when it is a matter of only certain specific context – for example, the one of morality or games. As will be shown later in the course of work, the playful nature of social interaction does not determine the possibility or impossibility of legal qualification of relations by itself. The relevance of this work is also due to more pragmatic circumstances that would be worthwhile to disclose in more detail at the beginning, if only this study did not constitute, above all, work related to the subject area of legal philosophy. However, anyway, the specific challenges of the modern information society24 and digital economy25 also largely determine the relevance of the topic, since they lead to the necessity of applying the law to the relationships, the subject of which is information. It is precisely this that is reflected in the examples related to the “failures” in the functioning of the mechanism of operation of law in relation to the “game” and the “unserious” informational context. At the same time, researchers note that in the conditions of the information age, social practices, which in general can be described

24 As A.V. Belov notes: “There are many theories of the information society. However, in our opinion, they are quite easily grouped into two main approaches. The first includes the theories related to the concepts of post-industrialism... In general, they, as well as post-industrial doctrine, lie in the mainstream of the direction of European philosophy, in which the evolution of mankind is considered through the prism of progress of knowledge. The second approach is connected with conceptual schemes of A. Toffler, R. Darendorf, F. Ferrarotti, and also to the corrected theory of D. Bell (the first approach – V.A.). It is in their fundamental works that the main features of society, which A. Toffler called ‘the third wave’, were formulated. Thus, D. Bell believes that the main features of the new society are the transformation of theoretical knowledge into a source of innovation and a determining factor in politics”. See: Belov A.V. Information Society and Information Culture in Russia: on the Problem Setting // Proceedings of Volgograd State University. Ser. 7, Filos. – 2009. – No. 1 (9). – P. 198-199. We also have to note that Point “г” Item 4 of the Strategy for the Development of the Information Society in the Russian Federation for 2017 – 2030: approved by Decree of the President of the Russian Federation of 09.05.2017 No. 203 defines the “information society” as “a society in which information and the level of its application and accessibility have a major impact on the economic and socio-cultural conditions of life of citizens”.

25 As with the concept of the information society, there are several approaches to defining the concept of “digital economy”. Thus, according to one of the possible approaches, the term “digital economy” means “a type of economy characterized by the active introduction and practical use of digital technologies for the collection, storage, processing, transformation and transmission of information in all spheres of human activity; a system of socio-economic and organizational-technical relations based on the use of digital information and telecommunication technologies; a complex organizational-technical system in the form of a set of various elements (technical, infrastructural, organizational, program, normative, legislative, etc.) with distributed interaction and mutual use of economic agents for the exchange of knowledge in the conditions of permanent development”. See: Babkin A.V., Burkaltseva D.D., Kosten’ D.G., Vorobiev Yu.N. Formation of Digital Economy in Russia: Essence, Features, Technical Normalization, Development Problems // St. Petersburg State Polytechnical University Journal. Economics. 2017. Vol.10. No. 3. P. 12. In the Section I of the Programme «Digital Economy of the Russian Federation», approved by the Decree of the Government of the Russian Federation of 28 Juyl 2017 No. 1632-р (now lost its effect), the concept of digital economy is related to the fact that digital data are a key factor of production in all spheres of social and economic activity, which increases the competitiveness of the country, the quality of life of citizens, ensures economic growth and national sovereignty.

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as “games”, are changing.26 We believe that the effect of such changes does not ignore law as well, as will be demonstrated by the example of empirical material of this research.27

It should be noted that both within the framework of the special branch theory of information law, and within the framework of philosophical and legal studies, this problem, in that perspective, in which it is presented in the work, despite the existing groundwork in the philosophy of law, can be considered as a fundamentally new. There are two main reasons for this. First, from a historical point of view, the transition to the information society happened quite recently, and to the modern stage of development of the information society, characterized, among other things, by the concept of the digital economy, happened within only the few last decades. The society is already facing challenges and threats of information oversupply, which leads public authorities to the need to create new legal norms, part of the regulation of which is conditioned by relationships on disseminating of various types of information. Second, from a comparative legal point of view, a significant array of legal studies that developed in the

26As T.D. Lopatinskaya notes, for example, “game activity, traditionally considered by researchers as the most important way of adaptation of a person to the surrounding conditions, in the information age acquires new specificity and functions. The most significant changes were related to the process of virtualization, one of the manifestations of which is the movement of cultural objects into the virtual space created with the help of information technologies. However, the nature of these changes, as well as the essence of the process of virtualization itself, do not yet have a sufficient degree of development in science. At the same time, changes in the field of technology and their impact on game practices are so significant that the analysis of these processes requires actualization of attention from modern researchers”. See: Lopatinskaya T.D. Phenomenon of Playing in the Conditions of Virtualization of Modern Culture / Abstract of the Thesis for the Degree of Candidate of Legal Sciences. Astrakhan State University, 2013. P. 3.

27In the applied aspect, the present study reflects the methodology of legal argumentation in law enforcement activities associated with the information related, inter alia, to virtual and augmented reality, as well as with contentious cases of implementation of the constitutional right to disseminate information. In this sense, the focus of the research is in line with the strategic priorities of the Russian Federation, defined, among other things, by the following documents Strategy for the Development of the Information Society in the Russian Federation for 2017 – 2030, approved by Decree of the President of the Russian Federation of 9 May 2017 No. 203 // Collection of Legislation of the Russian Federation. – 15 May 2017. – No. 20. – Art. 2901; Information Security Doctrine of the Russian Federation [Electronic resource]: approved by the Decree of the President of the Russian Federation of 5 December 2016 No. 646. – Access from the legal reference system “ConsultantPlus” (accessed on 11.09.2019); Conception of Information Security for Children [Electronic resource]: approved by the Order of the Government of the Russian Federation of 2 December 2015 No. 2471-r – Access from the legal reference system “ConsultantPlus” (accessed on 11.09.2019); Passport of the National Project “National Program “Digital Economy of the Russian Federation” [Electronic resource]: approved by the Presidium of the Presidential Council for Strategic Development and National Projects, Minutes No. 7 of 4 June 2019. – Access from the legal reference system “ConsultantPlus” (date of application: 11.09.2019), etc.