Материал: disser_arhipov

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about the interpretation and application of civil laws” (1901),55 as well as modern works by A.G. Karapetov, A.F. Cherdantsev and E.V. Timoshina.

This study also includes a consideration of the issues of the playing process through the prism of the social sciences and humanities. On the one hand, the given direction is connected with a problem parity of “virtual” and “real”, on the other hand – with dialectical connection of the basic problem studied within the limits of a subject area of the dissertation, with game analogy in jurisprudence. Dutch historian and culturologist J. Huizinga presented the first systematic study of games as a cultural phenomenon in the book «Homo Ludens» (1938). His works are traditionally correlated with the interpretation of the relationship between “virtual” and “real” through the metaphor of the “magic circle”. However, as noted by critics of this approach (for example, E. Zimmermann or M. Consalvo), although J. Huizinga uses this metaphor more than once, at the same time it cannot be considered as developed.56 Another and quite natural limitation of J. Huizinga's fundamental work is emphasized by M. Consalvo and fully corresponds to one of the key provisions of this study:

«When Huizinga (1950) wrote about the magic circle, our sense of space and place was radically different from what it is now. In suggesting a place “set apart” from everyday life, that space could be envisioned as geographic space fairly easily – the playground, the boxing ring, the hopscotch outline».57

Nevertheless, with the beginning of the development of the game studies, the discussion around the magic circle as a whole (R. Bartle, E. Castronova, M. Consalvo, J. Stenros, E. Zimmermann, etc.) and with regard to law in particular (B. Duranske,

55See e.g.: Vaskovskiy E.V. Civilistic Methodology. The Teaching about the Interpretation and Application of Civil Laws. М., 2002. – 508 p.

56See: Zimmerman E. Jerked Around by the Magic Circle – Clearing the Air Ten Years Later [Electronic resource] // Gamasutra. – [Site]. – URL: https://www.gamasutra.com/view/feature/135063/jerked_around_by_the_magic_circle_.php (accessed: 18.10.2018).

57Consalvo M. There is No Magic Circle [Electronic resource] // Games and Culture. – 2009. – Vol. 4, Issue 4. PP. 408 – 417. – URL: http://journals.sagepub.com/doi/10.1177/1555412009343575 (accessed: 02.07.2018). – P. 410.

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G. Lastowka, S. Kane, J. Fairfield, D. Hunter, etc.) can be seen as an essential research start in the area of determining the reasonable limits of the application of law to a certain conventional space of public relationships associated with a potentially “virtual” and “unserious” context. At the same time, the works of these predecessors do not contain the idea of assessing the subject of legal or social relationships in general for distinguishing between “virtual” and “real” (as well as “serious” and “unserious”). Furthermore, in the process of considering the problems at the intersection of law and games with the need to find a dialectical connection between this discourse and the analogy of law and game, which is fully or partially derived from the works of individual philosophers (L. Wittgenstein, M. Midgley, etc.), reveals itself, and it not ignored by lawyers (B. Jackson, A. Ross, J. Finnis, H. Hart, etc.) – meanwhile, this angle of consideration of the problems is also reflected and developed in this study deeper than before.

Despite the fact that the problem of the correlation between “virtual” and “real” has been traced in the history of philosophy for a long time, one should agree with the opinion that modern technologies of virtual reality, understood in the narrow sense of the word, significantly change the social reality – we are talking about changes in conceptual approaches to the legal regulation of public relationships under the influence of information and telecommunication technologies (E.A. Voynikanis, G.A. Gadzhiev, V.B. Naumov, A.I. Savelyev, S.V. Sarbash, etc.), and on the change of information culture in general (O.Y. Volkov, Y.K. Volkov, A.A. Lisenkova, V.V. Savchuk, O.V. Sergeeva, etc.). The ideas about the general digital cultural transformation, considered through the prism of legal implementations of artistic and game practices, form the basis for the theoretical and practical significance of the research, determine the arguments of the position that in the form in which this problem can be stated and solved now, it could not be stated and solved earlier.

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Finally, the premises for developing a solution to the problem of semantic limits of law, besides general subject field of interpretation of legal texts and premises of such interpretation, is based on theoretical sociology (in the context of the problems of generalized symbolic media and social capital in the broad sense of the word). The preconditions for a theoretical understanding of the semantic limits of law are mainly the works of authors related to the direction of social constructivism (P. Berger, T. Luckmann, J. Austin), and the preconditions for the reconstruction of the problem itself are the works of authors who developed the theory of social action (T. Parsons, his followers and interpreters, primarily J. Treviño). In order to explain one of the criteria of the semantic limits of law, the concept of a “generalized symbolic medium” (T. Parsons, N. Luhmann, J. Habermas, S. Abrutyn) is being developed in this paper.58

Purpose and objectives of the research. The purpose of the research is to substantiate and develop a theoretic concept of the semantic limits of law in the context of modern information culture and actual tasks of adaptation of the legal system of the society to the conditions typical for the information society and digital economy, the medial turn. The purpose of the study is defined by the concept of the semantic limits of law as belonging to the field of (1) interpretation of law – as it defines the general semantic boundaries of the process; (2) application of law – as it reveals cases of absurd or contrary to common sense, and thus unjust enforcement; (3) law-making – as it is the basis of the concept of the limits of law and, as a consequence, can be used in the modeling of normative prescriptions; (4) law ontology – since the semantic limits of law can be seen as a new dimension for the operation of law, – namely, the one related to media reality, – along with territorial or subjective limits; (5) the problems of the development of law in the context of the digital economy and the medial turn as a whole – because, due to answering

58 In his personal scientific discussion with Dr. Javier Treviño, one of the most important researchers of the creative heritage of T. Parsons, H. Treviño emphasized the scientific novelty of this approach (correspondence from September 2018 from the author’s personal archive).

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to the key questions of the semantics of law in respect of the contentious situations related to artifacts of media space, it can be used in the development of tools for algorithmization of law, building expert systems and artificial intelligence in the legal field.

The objectives of the research are determined by the purpose of the study and include:

formulation, description and substantiation of the initial hypothesis of the problem of determining the semantic limits of law in current socio-cultural and economic conditions;

identification and description of key features of modern information culture as the context that determines the relevance of the problem of the semantic limits of law;

selection and description of representative normative and empirical material to justify the relevance and content of the problem of the semantic limits of law;

academic methodological qualification of the content of the semantic limits of law in the interdisciplinary discourse of social-humanitarian sciences;

to explore the concepts of game in the social and human sciences as a field in which the boundaries between “serious” and “unserious” were explicitly asked for the first time;

analysis and interpretation of the analogy of law and game in the history of the philosophy of law, which is dialectically linked to the problem of play in the social sciences and humanities;

selection and substantiation of philosophical and legal concepts that allow to carry out the problem-theoretical reconstruction of the semantic limits of law;

analysis and critical rethinking of existing approaches to the problems of defining the principles of syntax and semantics in jurisprudence and deontic logic;

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development of methodology and formation of specific criteria for determining the semantic limits of law based on interdisciplinary discourse, focused on theoretical sociology and logic;

implementation of mental experimentation (theoretical modeling) with the developed criteria of the semantic limits of law in order to verify the obtained research results;

reconstructing a full-fledged and scalable concept of the semantic limits of law to be applied in the interpretation of law and law-making.

The academic novelty of the thesis consists in the fact that it represents the first comprehensive monographic study that provides the conceptualization of the semantic limits of law relevant for modern conditions of a medial turn. This concept generalizes a complex of theoretical and practical problems of jurisprudence, united by the dichotomy of absurdity and common sense, and presents the rationale for a universal methodology for solving these problems.

In the course of the research, the following results that are novel for the academic studies were obtained:

1) The author provided an argument for the interpretation and development of both the provisions of L. Fuller’s concept of law contained in the later studies of the scholar (primarily in “Anatomy of the Law” and “Principles of Social Order”) and outlined by the author of this research in his candidate’s dissertation. In particular, the concept of semantic limits of law itself is partly intended to explain L. Fuller’s view on “generally shared assumptions” of the subjects of law, which exclude from the rational and explicit discourse everything that is not in accord with the common sense.

2) The historical and philosophical analogy of law and games, developed both in cultural studies (J. Huizinga) and in genuine studies of legal philosophy (H. Hart, A. Ross etc.), was studied, summarized and substantially supplemented. The analogy of law and