Материал: disser_arhipov

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context of Western legal culture naturally cut off the subject matter due to the constitutional legal tradition, which implies not only the priority of the freedom of speech and freedom of expression,28 including the creative one, but mostly private-law means to protect these rights. This, in turn, leads to conditions under which, for example, questions of the limits of state intervention in artistic freedom in order to ensure various types of national security are actualized primarily in legal systems in which states actively and directly defend their sovereignty in the information space, which include, above all, the Russian Federation29 and People’s Republic of China,30 where at the current stage the problematics of the semantic limits of law is manifested most clearly in the form in which it is reconstructed in the framework of the present study.

In the framework of the general methodological paradigm of the postclassical type of scientific rationality, it is impossible to ignore the introspective analysis of the subjective significance of the research topic, since this may shed light on its objective significance because the author himself is in many ways a product of his era. The academic interest of the author to the subject of this study historically stems from interest in special

28However, despite the absence (at the time of writing) in many Western jurisdictions of direct legal provisions directly providing for public law restrictions on the dissemination of certain types of information in the same sense as established in Russia, it would be misleading to believe that such priority is absolute. As is well known, for example, the dissemination of a novel by V.V. Nabokov “Lolita” in the middle of the XXth century was restricted by the authorities of Great Britain and France (along with Argentina, New Zealand and South Africa). See e.g.: Lolita / The Hunger Games Reaches Another Milestone: Top 10 Censored Books // Time. Sept. 28, 2008 [Electronic resource]. – [Site]. – URL: http://entertainment.time.com/2011/01/06/removing-the-n-word-from-huck-finn-top-10-censored-books/slide/lolita/ (accessed: 02.10.2018). It should be noted that the book is not considered to be legally controversial in the light of the direct provisions of Russian law, even though its general topic can be considered as controversial to certain extent in moral sense. Another relevant case is “soft censorship”, which, from recent examples, banned Harper Lee’s “To Kill a Mockingbird” and Mark Twain’s “The Adventures of Huckleberry Finn” from the school libraries in Ackomac County, Virginia, USA, for statements that were considered racist. See e.g.: Allen N. To Kill a Mockingbird and Huckleberry Finn banned from schools in Virginia for racism // The Telegraph. 5 Dec. 2016. – [Electronic resource]. – [Site]. – URL: https://www.telegraph.co.uk/news/2016/12/05/kill- mockingbird-huckleberry-finn-banned-schools-virginia-racism/ (accessed: 02.10.2018).

29An example of this may be legal norms aimed at restricting the dissemination of certain types of information – for example, Articles 15.1 or 15.2 of the Federal Law of 27.07.2006 No. 149-FZ “On Information, Information Technologies and Protection of Information”, and norms aimed at recognizing the jurisdiction of Russian courts in disputes involving foreign persons in connection with activities carried out via the Internet, in particular, Items 2, 10 and 11 Part 3 Article 402 of the Civil Procedure Code of the Russian Federation.

30See e.g.: Jiang M. Authoritarian Informationalism: China’s Approach to Internet Sovereignty // SAIS Review of International Affairs. 2010. No. 30(2). PP. 71-89. – Available at Social Science Research Network [Electronic resource]. – [Site]. – URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1702128 (accessed: 02.10.2018).

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interdisciplinary (at the intersection of game studies31 and jurisprudence) problem of the legal aspects of virtual worlds and multiplayer computer games, which has historically focused on the issue of “virtual property”. The hypothesis of the research significance of this study arose, in turn, from an intuitive understanding of the prospects of computer technology at an early age. Nevertheless, the subjective interest in any topic is not a guarantee of its objective research significance, therefore this direction of research should have been tested for methodological tenacity. The study of this problem from the point of view of the subject of legal science, at first glance, raises primarily special issues of civil and information law, but soon turns to a broader problem of the relationship between “virtual” and “real” in the context of a hypothetical border where “real” legal norms cannot be applicable (as a conditional example, which can be repeatedly met on the pages of this work, we can cite the prohibition of the “real” criminal law to murder, which, as it seems to many, does obviously not operate in relation to a virtual relationship between non-player characters of a videogame). The concepts associated with the explanation of such a hypothetical border are traditionally correlated in academic space with the concept of «magic circle» – a metaphor from the works of the eminent Dutch culturologist J. Huizinga, who, in his book “Homo Ludens”,32 among the first conceptualized, firstly, ideas about the role of games in human culture, and secondly, he drew an analogy between games and law as such (focusing primarily on archaic law). In the process of analyzing the literature devoted to this perspective of considering the problem, it becomes obvious that

31Game studies is a field which is interdisciplinary in itself and which unites, first of all, the subjects of culturology, sociology and philosophy as applied to games and, first of all, computer games.

32As J. Huizinga noted, “Formally, the function of such a fence and for the sake of a sacred purpose, and for the sake of a clean game is exactly the same. The racetrack, the tennis court, the playground for ‘classics’, the chess board are not functionally different from such things as the temple or the magic circle”, and even as applied to the law: “Every place where justice is served is a true temenos, a sanctified place, cut off, fenced off from the ordinary world. Thus, a place for the court is first allocated and then the court is convened. It is truly a magical circle, a playing space within which the habitual division of

people by their rank is temporarily stopped. For the time being, they are made inviolable”. See: Huizinga J. Homo Ludens; Articles on the History of Culture (in Russian) / Transl. by D.V. Silvestrov; Comment. by D.E. Kharitonovich. – M.: Progress– Tradition, 1997 – 416 p. It should be noted that in Huizinga's terminology the “magic circle” acts as a tool for ensuring formal equality.

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the concept of the “magic circle”, as it was subsequently developed, is criticized and often deservedly, because in reality the line between “virtual” and “real” turns out to be quite thin, if it exists at all. In this case, however, there is another logical conclusion. The concept of the “magic circle” can be interpreted differently, more broadly, and combine a complex of relationships connected not only with games, but also with other phenomena and practices of the modern information culture, or with previously known phenomena and practices that are being rethought within the framework of modern information culture. Such phenomena and practices that are noticeable when climbing to a higher level of theoretical generalizations include a wide range of phenomena related to the concepts of “games”, “unserious” and “fictional” (in arbitrary combinations) – this includes artistic works, folklore based on different types of humor and satire, and other similar social practices. From the height of this generalization in modern conditions, it becomes clear that such a formulation of the problem unexpectedly reveals a sui generis problem related to the philosophy of law and legal dogma. What is it? In the framework of the modern information culture, at first approximation, fundamentally new legal conflicts arise. The reason for their emergence, among other things, is the fact that the state begins to defend sovereignty in the information space, and consequently, the norms of law are regarded by the public authorities as extending to purely information relationships. In a number of cases, this leads to situations that may intuitively seem “strange”: for example, the blocking of Internet sites containing recipes for dynamite in computer games on the grounds of prohibitions and restrictions on the dissemination of information in order to counter terrorism.33 In a more detailed analysis it becomes clear that Russian legislation already now (and not only) contains a lot of norms in respect of which one can raise the

33 In this connection, it seems that the present study is related not only to such a priority direction of the Development Program of Saint Petersburg State University until 2020 as “Social Research and Technologies”, but also to “Information Systems and Technologies”. See Section IV of the Program for Development of the Federal State Educational Institution of Higher Education “Saint-Petersburg State University until 2020”, approved by the Order of the Government of the Russian Federation of 07.10.2010. (ed. on 22.11.2017) [Electronic resource]. – Access from the legal reference system “ConsultantPlus” (date of application: 11.09.2019)

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question of the limits of their application from the point of view of common sense, since other application and interpretation would be absurd.34 This statement of the problem definitely takes the problem beyond the limits of private and sectoral problems, as it implies an unambiguous parallel with the examples of absurdity in law, long known to the history of legal and political teachings (from the dialogue between the pirate and Alexander the Great35 to the previously mentioned examples of L. Fuller). The severity of the problem now, however, is caused by the fact that similar situations no longer constitute only the field of speculative models of philosophical and legal research or historical and philosophical anecdotes. It is in the context of modern information culture that practical problems of substantiating the semantic limits of law as a conceptualization of the discourse under consideration are actualized. At the same time, the proposed approach seems to be relevant not only at the current stage of development of the information society. For example, it has a significant prognostic potential because it creates a direct methodological basis for the analysis of the problems of virtual and augmented reality, while not losing touch with the tradition of philosophical and legal thought. A significant link is made to the doctrine of absurdity in the interpretation of statutes, and it is also clear from the proposed perspective that the substantive aspects of the doctrine come up against a “wall of obviousness” – the theory of law and interpretation of law as a whole lacks a sound and complete theory of why the application of law is absurd in certain cases. Here, and perhaps unexpectedly, the relationship with the classical discourse of law philosophy on the relationship between law and morality is seen, since it is the contradiction of

34It should be emphasized that, when considering in more detail, the restriction on the dissemination of information about the methods of making dynamite in computer games, in fact, cannot seem strange just because it is a computer game. The case is different, namely, what concerns us is the extent to which the subject matter of the relationship arising from such games actually corresponds to the real features of dynamite, and the extent to which it is a socially significant phenomenon. The study does not challenge the general thesis that certain types of information may be dangerous in the event of uncontrolled dissemination.

35This is a popular historical anecdote about the dialogue between Alexander the Great and the pirate, who noted that the right to manage the sea was granted to the pirate by the same source from whom Alexander got the right to manage the land, and the difference (in the interpretation of the pirate) is only that the pirate does it on his only ship, while Alexander – with the help of a huge army.

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morality that is often used as a universal explanation of the absurdity of interpretation or application of law. As research shows, this is not always the case. A contradiction to morality is neither necessary nor sufficient to consider the application or interpretation of law as absurd, even in the case of the “Radbruch’s Formula”. In this connection, there appears an idea to consider separate semantic limits of law as, figuratively (or not figuratively) speaking, the rules of the language game of law in the terminology of L. Wittgenstein. It is also impossible to ignore the mathematical theory of games, in the light of which a deep and scalable metaphor of law as a zero-sum language game is born. Thus, the concept of semantic limits of law, which was originally outlined based on the need to define the criteria of absurdity of law enforcement in relation to the model of game relations in the narrow and technical sense of the word – whether law can interfere in relations in multiplayer computer games – finds application in the context of the problems of game analogy in the philosophy of law. In the process of research, it becomes clear that the game analogy is quite interesting, but very poorly developed direction, which clearly needs to be rethought within the modern information culture, because now in culture we see a kind of “game turn”. Curiously, the “game analogy” can be traced in the works of such scholars as, for example, H. Hart36 or A. Ross.37 A small number of special studies on this topic (e.g., M. Midgley38 or B. Jackson39) contains interesting observations that

36H. Hart based his interpretation of the analogy on the idea that the legal system is a set of specific rules that can be compared to the rules of squash and tennis. In both cases, however, there is a “core meaning” of the rules and cases in which they are applied in different ways in specific situations. A good summary of the game analogy in the works of H. Hart is presented, for example, in the works of J. W. van Doren, see e.g.: Van Doren J.W. Theories of Professors H.L.A. Hart and Ronald Dworkin – A Critique // Cleveland State Law Review. – 1980. – Vol. 279. – PP. 279 – 309. I wonder what H. Hart would have said if he had carefully studied modern games?

37The basis of analogy A. Ross was playing chess. “Understanding” of the game means not causal connection but mutual certainty of events by means of game rules, thus within one game interpretation of rules and events should be identical, otherwise there will be no game as such. See: Ross A. On Law and Justice. – Clark, New Jersey: 2007. – PP. 12–15. We may address A. Ross the same question as to H. Hart.

38М. Midgley develops an analysis of the problem of the seriousness of the game as such, noting that it would be naive to think that all cases of games are not serious – on the example of sports games for many, not only professional athletes, but also fans, games occupy a very serious place in life, and this can be considered a sociological fact. See: Midgley M. The Game Game // Philosophy. – 1974. – No. 189 (Jul., 1974). – PP. 231–253. – URL: https://www.jstor.org/stable/3750115 (accessed: 26 July 2018).