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

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games has been reconsidered in view of the “game turn” in modern information culture and the emergence of fundamentally new types of games – multiplayer computer games, which often now include elements of virtual and augmented reality in the narrow technological sense of the word. The author substantiated a view on the presence of a connection and the methodological potential of studying such games as models of normative systems.

3)Taking into account the development of modern information culture and the need to understand social relations that are the subject of legal regulation, an assessment was made of possible communication qualifications in social reality according to the criteria of imaginary and real, serious and unserious, game and non-game. It justifies approaches to how legal conflicts related to communication, which can be characterized by various combinations of these principles, can be considered from the point of view of law itself. The philosophical, sociological and culturological quality of seriousness is defined as one of the key signs of the relevance of a social phenomena to law.

4)A system of ideas about absurdity and common sense in law is developed in terms of the operation of law, the application of law, the interpretation of law and lawmaking. Various concepts of the absurdity to the extent necessary to solve the problems of the thesis were studied. The author analyzed the system of ideas about common sense, including the Scottish school of common sense philosophy. The interpretations of this concept, differing in their nature, are generalized, which in some cases imply a reference to morality, in others – to the basic paradigm of reality shared in society, in others – to formal logic. The direct connection between the dichotomy of absurdity and common sense, on the one hand, and the semantics of the content of regulatory prescriptions, on the other, is demonstrated.

5)Certain limitations of deontic logic, used as the main tool of normativist and analytical philosophy of law in respect of revealing the criteria for defining of the conceptwords used in legal texts in the context of the methodology of analytical jurisprudence, are

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demonstrated. The toolkit of deontic logic makes it possible to structure and formalize with sufficient clarity the syntax of legal reasoning in order to study and use it. However, in principle, it does not always allow to solve problems in the “penumbra” of law that are essentially related to the deep level of semantics of law. In addition, the idea is developed that in such a situation the full-scale use of expert systems (that includes machine learning and artificial intelligence) in jurisprudence at the current stage shall pay attention to the special cases of revealing absurdity of interpretation of legal texts in the context of media reality.

A concept has been developed for the necessary and sufficient criteria for determining the semantic limits of law, which can act as the most general principles of legal semantics – the qualities of “serious” and “real” applicable to the object of social relationships, and not to the social relationships themselves. With regard to the concept of semantic limits of law, these terms should be understood in a special sense, reconstructed with the support of the idea on functional correspondence between an artifact of media reality and the “core meaning” of the concept-word used in a legal text (“reality”), and also theoretical sociology and the concept of “generalized symbolic media” (“seriousness”). The examples of application of the conception of the semantic limits of law have been developed based on theoretical modeling.

Methodology and methods of research. The main methods used in the thesis are: formal legal (dogmatic); comparative legal; the method of interpretation and problemtheoretical reconstruction; theoretical modeling; introspection; participatory observation; the method of analytical jurisprudence.

Formal-legal (dogmatic) method, which is a special method of legal research, implies the use of two components – deductive-axiomatic and hypothetical-deductive methods of reasoning, the use of which is reflected in the text of the study in an explicit or implied form. The deductive-axiomatic method of reasoning implies the analysis of the

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normative source base of the dissertation with conditional acceptance of the provisions of the current positive law as an axiom and consistent application of methods of interpretation of law. The hypothetical-deductive way of reasoning is similar to the deductive-axiomatic way of reasoning in everything, except that in the first one the hypothesis of the result of legal interpretation is used, which is then confirmed or disproved. The formal-legal method as a whole allows answering two main questions: first, what is the positive-legal regulation of certain social relations at a given moment of time; second, in which cases there is no formal certainty of legal norms. For the purposes of this study, which is focused on conceptualization and resolution of the fundamental problem of determining the semantic limits of law, the formal-legal method is of instrumental importance, since the main task of its application is to demonstrate the boundaries of this method on specific empirical examples and to correlate them with the notion of the semantic limits of law.

Comparative legal method, is also a special method of legal research and developed in the domestic and foreign doctrine of comparative jurisprudence, including the works of I.Yu. Kozlikhin; the legal phenomena of the same order relating to different legal systems are compared in order to identify similarities and differences between them. The use of the comparative legal method in this paper is conditioned by the hypothesis that the problem of semantic limits of law should be considered as universal for all legal systems.

The method of interpretation, of which the method of problem-theoretical reconstruction is a part, can be considered as the main method used to study the history of legal ideas. This method, justified by D.I. Lukovskaya, developed by A.V. Polyakov and reflected and creatively rethought in the research of E.V. Timoshina,59 implies the creation

59 A brief historiographical summary of the development of the tradition of this method within the framework of the research continuity of the Department of Theory and History of State and Law of Saint Petersburg State University can be found on the pages of the jubilee article published in 2014 on the pages of the journal “Pravovedenie”. See: Jubilee of Dzhenevra Igorevna Lukovskaya // Proceeds of Higher Education Institutions. Jurisprudence. 2014. No. 2 (313). PP. 241–242. Separately, the idea of the text “as a primary given and the starting point of any humanitarian discipline” goes back in this context to M. Bakhtin, whose works largely predetermine the understanding of the game turn in culture reflected in the domestic literature. D.I. Lukovskaya expressed the conceptual foundations of this methodology in her doctoral dissertation, see:

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of original interpretation concepts in the process of pre-requisite and contextual interpretation of the text as a primary reality of humanities.60 Within the framework of the present study, it is used mainly for interpretation and reconstruction of not general, but private concepts developed by domestic and foreign thinkers and relevant to the main problem, the solution of which is aimed at.

Theoretical modelling method in the interpretation applicable to legal research, implies, on the one hand, the creation of abstract models of social relationships, and on the other hand, models of possible norms of positive law, with the subsequent application of the latter to the former in order to create a general model of law enforcement. In the context of the goals and objectives of this study, the method of theoretical modeling is necessary to identify various examples of the semantic limits of law and to demonstrate the methodological potential of the concept developed in the dissertation. In particular, the application of the method of theoretical modeling is illustrated by the example of the application of the concept of the semantic limits of law in law-making.

Method of introspection, originally developed in psychological science, implies the observation and description of the researcher’s own values and is conditioned by the notion that in the conditions of post-classical type of scientific rationality the researcher’s personality, his experience and paradigmatic features of thinking objectively cannot but

Lukovskaya D.I. Theoretical and methodological problems of the history of political and legal teachings: dissertation ... Doctor of Law: 12.00.01. – Leningrad, 1986. – 412 p. See also: Lukovskaya D.I. Subject and methodology of the history of political and legal doctrines // Proceeds of Higher Education Institutions. Jurisprudence. 2007. No. 3. – PP. 197–211.

60 According to E.V. Timoshina, “the essence of this method is disclosed in the following main provisions: 1) the text is a primary reality of the humanities, which has a certain ontology in relation to the cognizing subject; 2) the process of interpretation has a pre-requisite and contextual nature, which determines the choice of research hypothesis and the selection of textual ‘facts’; 3) the possibility of ‘dialogue’ with the author of the text is associated with the observance of certain ethical principles in the process of interpretation; 4) knowledge is considered as having a personal and socio-cultural nature; 5) interpretation is a communicative process – revealing the actual intersubjective meaning of legal ideas of the past takes place in the ‘space’ of the modern scientific dialogue, mediated by the texts of thinkers of the past; 6) the result of the research is expressed in the creation of an original interpretation concept (theoretical model) of legal doctrine, the actualization of which contributes to the modern theory of law; 7) the diversity of interpretation concepts is a ‘normal’ scientific phenomenon”. See: Timoshina E.V. Theory and Sociology of Law by L.I. Petrazycki: Genesis of Post–Classical Legal Understanding in Russian Philosophy of Law (the Beginning of the XXth Century). Dissertation for the Degree of Doctor of Legal Sciences / Saint Petersburg State University. Saint Petersburg, 2013. P. 11.

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influence the direction of scientific conclusions in social and humanitarian academic research. However, a rational description of such values is not excluded, which may serve as a necessary condition for the interpretation of this academic text.

Method of participatory observation is used in the work with reference to the phenomena of modern information culture (first of all, social networks and multi-user computer games), which are part of the empirical base of research. Explicit mentioning of the included observation method is aimed at demonstrating the author’s experience as a participant in relevant social practices and, consequently, as a user of well-known digital economy products.61

Analytical method, understood in the context of the analytical jurisprudence relates to the turn to the linguistic context of the language practice which is mostly relevant to the Russian legal system and is associated with the concepts of common sense. This study also largely reflects the experience of rethinking the legal issues in the context of the “linguistic turn” in the scientific rationality as a whole and, as a consequence, explicitly or implicitly uses the methodological potential of individual teachings, developed within the framework of the philosophy of language, in relation to the problems of philosophy and theory of law. When analyzing the problems of absurdity and common sense in the context of this study, an analytical method is used that is characteristic of analytical philosophy (L. Wittgenstein,

61 In particular, the author has participated and participates as a user in a number of multiplayer gaming and cybersports projects from 2005 to the present (among them, in chronological order of being acquainted with, Ultima Online, Second Life, Achaea: Dreams of the Divine Lands, Discworld, Aardwolf, World of Warcraft, Rift, Everquest II, Star Wars: the Old Republic, Magic: the Gathering Online, Allods Online, Skyforge, Perfect World, Dota 2, League of Legends and some others). The author is also an experienced user and at times an avid reader of social media (VKontakte, Facebook, Twitter, LinkedIn, Livejournal, Blogspot, WordPress) from the moment of their actualization in the Russian segment of the Internet in the first decade of XXIst century. Although, specifically in the period corresponding to the writing of this paper, this comment is probably comparable to stating that “the author is an experienced reader of books” or even “the author is an experienced communicator” (although both, of course, are not superfluous), it can be assumed that long-term experience in the practical study of relevant resources and practices, in most cases from the moment of their immediate appearance, is relevant to the context of work on the legal issues of virtual reality in the broad sense of the word. Moreover, in a context where not all of the available legal science publications, even those that are specific to gaming research and social media, imply the same degree of personal experience.