Материал: disser_arhipov

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generally develop within the framework of the general “magic circle” approaches, which are only more oriented towards jurisprudence per se than towards games. However, we would like to emphasize that the views of thinkers of the XXth century could at least be significantly supplemented, or even changed in principle, if they caught up with modern computer games, which are much more methodologically rich than the games known at that time.

However, returning to the consistent presentation of the internal logic of the study, the concept of semantic limits of law, which is a set of theoretical provisions aimed at addressing a scientific problem of great political, socio-economic and cultural importance, is formed based on the previously presented key methodological approaches. Political – because, as will be demonstrated in this paper, legal policy in the field of freedom of information is of serious importance in the current environment. Socio-economic – in the applied legal aspect. Cultural – since the approach to the semantic limits of law largely determines the freedom of artistic creation and the creation of other cultural artifacts. As will be shown later in this paper, the semantic limits of law are best explained by means of two key concepts: “open texture” of legal norms,40 as developed in the works by H. Hart, and generalized symbolic media, the idea of which is developed in theoretical sociology,

39B. Jackson is the author of one of the most consistent and in-depth publications analyzing the analogy of law and games in the context of the modern type of scientific rationality and structural approach. See: Jackson B.S. Towards a semiotic model of the games analogy in Jurisprudence // Droit et société. – 1991. – No. 17–18. – PP. 99–123. – doi: https://doi.org/10.3406/dreso.1991.1105.

40It should be noted that, in the context of this study, it is essential to establish the functional adequacy between the “core meaning” of the disputed concept and a fact of media reality in the process of interpreting legal texts. Although the main way to establish such adequacy is to apply the notions of late Wittgenstein about “family resemblance”, it is necessary to note the closeness of this approach to the interpretation of the correspondent theory of truth, in which correspondence is understood as a relative isomorphism, in relation to the closed universum of law. Correspondent truth theory is perhaps the best known theory in this field. It presupposes “correspondence” of statements to the fact. Isomorphism implies not only conformity but also structural adequacy of reality. See e.g.: Marian D. The Correspondence Theory of Truth [Electronic resource] // Stanford Encyclopedia of Philosophy. – [Site]. – URL: https://plato.stanford.edu/entries/truth-correspondence/#6 (accessed: 03.10.2018). Criticism of such a theory of truth, based on the notion of fragmentation and disconnectedness of reality, does not affect jurisprudence in the postclassical type of scientific rationality, since law is precisely the “constructed” model of reality – this is its purpose in social life, which implies an agreement on the conventions and rules of the game

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and in its explicit form – starting with the works of T. Parsons.41. In the end, the results of the research allow both to supplement philosophical and legal notions about the nature of law and to determine the methodology of legal argumentation in applied situations that require a legally significant explanation of absurdity or reasonableness of application, or interpretation of certain legal norms in borderline situations related to media space.

Degree of development of the topic. This dissertation is an academic qualification work, which solves the academic problem of reconstruction of the semantic limits of law, which has important political, socio-economic and cultural significance. This required, first, to carry out the formulation of this problem, because in the perspective in which it is distinguished by the empirical material in this study, this problem has not previously been and could not be stated. L. Fuller approached the problem earlier the closest to the statement of the problem. In “Anatomy of the Law”, he defined the dependence of the law on the “generally shared assumptions”, the contradiction to which leads to the absurdity of this or that legal position. At the same time, this idea, in the angle suggested in this paper, did not find a fundamental development and was not clearly reflected in the subsequent work of the thinker and his followers. In addition, it should be emphasized that the uniqueness of the experience of conceptualization of the problem of the semantic limits of law in this work is also explained by the relevance of the problem to the modern information society, which is characterized by a new and poorly researched context of modern information culture, corresponding to the conditions of the medial turn – these

41 In modern terms, a generalized (generalized) symbolic medium is a “token” of a social (i.e., generally significant) value corresponding to one of the subsystems of the social system. For example, money is a generalized symbolic medium of material resources, corresponding to the economic subsystem, and power implies a legitimate monopoly on physical violence, corresponding to the political subsystem. See e.g.: Johnson H.M. The Generalized Symbolic Media in Parsons’ Theory // Sociology & Social Research. – 1973. – PP. 208–221; Chernilo D. The Theorization of Social Co-Ordinations in Differentiated Societies: The Theory of Generalized Symbolic Media in Parsons, Luhmann and Habermas // British Journal of Sociology. – 2002. – Vol. 53. – Issue 3. – PP. 431–449; Turner T.S. Parsons’ Concept of “Generalized Media of Social Interaction” and its Relevance for Social Anthropology // Sociological Inquiry. – 1968. – Vol. 38. – Issue 2. – PP. 121–134. The most relevant approach to generalized symbolic media is presented in the works by S. Abrutyn, see e.g.: Abrutyn S. Money, Love, and Sacredness: Generalised Symbolic Media and the Production of Instrumental, Affectual, and Moral Reality // Czech Sociological Review. – 2015. – Vol. 51. – No. 3. – PP. 445–471.

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circumstances were not and could not be known to the authors who studied the problems of philosophy of law in the XXth century and earlier.

However, the approach proposed in this study relates to at least three main areas of legal theory and philosophy, each of which has been separately reflected in the works of a wide range of authors. First, the concept of the semantic limits of law is related to the notion that law is or should be aimed at regulating not any but the “most important”42 social relationships. This observation can be considered a “deceptive common place” of legal theory, and in one form or another it is reflected in the works, speeches and other materials of many domestic and foreign authors of works – from textbooks to monographs

– which address the issues of sources of law (S.S. Alekseev, V.V. Lazarev, O.E. Leist, M.N. Marchenko, V.S. Nersesyants, A.V. Polyakov, E.V. Timoshina, etc.). At the same time, criteria that allow for a reasonable degree of accuracy and credibility to determine which social relationships are “important” and which are not, cannot be considered as having been developed to at least a minimum satisfactory degree specifically in legal studies. Second, the concept of the semantic limits of law corresponds to the discourse on the relationship between law and morality, including in the context of the discussion between positivists and legal scholars of the XXth century. The notion of the limits of law was usually considered through the prism of the moral limits of law. Thus, for example, J. Stanton-Ife, systematizing notions about the limits of law, analyzes mainly the works of those foreign authors who directly or indirectly dealt with the problems of the relationship between law and morality (R. Dworkin, D. Lewis, N. MacCormick, J. Raz, J. Rawls, J. Feinberg, J. Finnis, L. Fuller, H. Hart, J. Hampton, etc.),43 and it’s the moral discourse that

42See e.g.: Polyakov A.V., Timoshina E.V. General Theory of Law: Textbook. – Saint Petersburg: Publishing House of Saint Petersburg State University, Publishing House of the Law Faculty of Saint Petersburg State University, 2005. P. 305.

43See: Stanton-Ife J. The Limits of Law [Electronic resource] // The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), Edward N. Zalta (ed.). – [Site]. – URL: https://plato.stanford.edu/entries/law-limits/ (accessed: 17.10.2018).

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leads to the questioning.44 One of the components of the research novelty of this study is precisely the justification of the “area of absurdity”, which excludes not only the application of law, but also weighing (balancing)45 of values that have moral nature. Third, the key area of application of the concept of semantic limits of law is the interpretation of legal texts. The doctrine of legal interpretation is in twofold position. On the one hand, we can find examples of addressing the problem of interpretation of law in a wide range of sources – from the works of the abovementioned domestic authors on the general problems of the theory of law to philosophical and sociological works, which address the prerequisites for the interpretation of law. Among the latter, one should first of all note the authors whose studies belong to the subject area of analytical and linguistic philosophy (L. Wittgenstein, B. Russell, J. Moore, M. Schlick etc.), hermeneutics and phenomenology (W. Diltey, M. Heidegger, H.-G. Gadamer, E. Husserl etc.), social constructivism in theoretical sociology (P. Berger, T. Luckmann, J. Austin etc.). On the other hand, there are not many special researches in the field of theoretical bases of methodology of legal interpretation, strange as it may seem. Inevitably, these problems were touched upon by the previously mentioned foreign authors who were engaged in the problems of the relationship between law and morality (a typical example of discussion in this area is, of course, the dispute between L. Fuller and H. Hart). Among the most relevant special works of foreign and, first of all, Anglo-American authors, it is necessary to note the works devoted to the analysis of certain practical principles of interpretation – “plain meaning

44The author, in particular, cites Lord Devlin, who said, “I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter”. Cited by: Stanton-Ife J. The Limits of Law. See e.g.: Devlin P. The Enforcement of Morals. – Oxford: Oxford Paperbacks, 1968. – 154 p.

45Hereinafter, by referring to “weighing” or “balancing”, we will mean referring to concepts specific to constitutional law and judicial reasoning. See e.g.: Belov S.A. Rationality of the Judicial Balancing of the Constitutional Values by Means of the Proportionality Test // Saint Petersburg Lawyer. – 2016. – No. 1. – P. 63–75; Timoshina E.V. The Problem of Justiciability of Human Rights in Situations of Their Competition and the Principle of Proportionality // Proceedings of the Russian University of Peoples’ Friendship. Series: Legal Sciences. 2017. Vol. 21. No. 4. P. 464–485; Timoshina E.V., Krayevsky A.A., Salmin D.N. Axiology of Judicial Interpretation: Means of Weighing in the Situation of Competition of Human Rights // Proceedings of Saint Petersburg University. Law. 2015. No. 3. P. 4–34. Any particular development of such procedures is not in itself part of the scope of this work.

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rule”,46 “mischief rule”47 and “golden rule”),48 – and also the most relevant trends of court interpretation as reflected in the terms “textualism”49 and “absurdity doctrine”.50 It is about the works of such authors as W. Daugherty, F. Easterbrook, J. Manning, A. Scalia, L. Solum, C. Whittington and others. Taking into account the specifics of Anglo-American law, some of the approaches in this area have also been reflected in various case law, including, for example, the following: Chung Fook v. White, 264 U.S. 443 (1924) (USA),51

Re Sigsworth: Bedford v Bedford [1935] 1 Ch. 9852 (UK).53 However, in these sources, the development of notions of common sense and absurdity in the interpretation of law is quite ad hoc and is due to specific practical problems, which does not yet mean that the general research problem is solved. In the Russian doctrine of legal interpretation there are also very few works devoted to theoretical substantiation of not only any semantic boundaries in the interpretation of law, but also the methods of interpretation as such.54 Perhaps, we can emphasize just the classic work of E.V. Vaskovsky “Civilistic methodology. Teaching

46The “Plain Meaning Rule” can be considered as an analogue to the principle of applying a literal interpretation in volume, unless otherwise required by the situation, within the framework of the Russian legal doctrine.

47The “Rule of Harm” are based on the principle that, in interpreting the statute, the court must determine which harm the rule of parliament was intended to eliminate or prevent, in order to rely on this notion in its enforcement. Analogue to teleological interpretation.

48The “Golden Rule” is inherently the closest thing to the subject matter of this study, as its essence is to avoid literal interpretation where such interpretation would lead to outright absurdity or public order controversy.

49The concept of textualism, which is more typical for the United States than for the United Kingdom (in contrast to the above principles), assumes that the interpretation of the statute should be guided by its text and exclude other possible sources of information about the legal norm from the scope of consideration (the intention of the legislator, the problem that the law seeks to address, abstract notions of fairness, etc.).

50The doctrine of absurdity, on the contrary, postulates the need to apply common sense as opposed to literal interpretation where literal interpretation would lead to absurd results. It should be noted that despite the fact that the doctrine of absurdity itself is developed, the ideas of what exactly should be considered absurd are far from systematic and explicit in modern legal science.

51Chung Fook v. White, 264 U.S. 443 (1924) [Electronic resource] // FindLaw. – [Site]. – URL:

https://caselaw.findlaw.com/us-supreme-court/264/443.html (accessed: 18.10.2018).

52Re Sigsworth: Bedford v Bedford [1935] 1 Ch. 98 [Electronic resource] // E-Lawresources.co.uk. – [Site]. – URL: http://www.e-lawresources.co.uk/Re-Sigsworth.php (accessed: 18.10.2018).

53It should be noted that there are, in fact, much more examples from the UK and US courts, but the disclosure of the theoretical basis for the methodology of law interpretation in relation to the issues of absurdity and common sense cannot be considered sufficient.

54It is quite characteristic, for example, that in the article “Interpretation of Law in the Context of Different Types of Legal Understanding” A.V. Korneev is more oriented to the classics of domestic legal thought, whose works are devoted mainly to the general problems of legal science and only partially touch upon the problems of law interpretation (B.A. Kistyakovsky, S.A. Muromtsev, P.I. Novgorodtsev, L.I. Petrazhitsky, G.F. Shershenevich, etc.). See: Korneev A.V. Interpretation of Law in the Context of Various Methods of Law Congition // Russian Law Journal. 2016. No. 8. P. 29–43.