disser_arhipov

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et al.) and analytical jurisprudence (H. Hart, et al.) and implies clarification of concepts from the point of view of their use in natural language.62

In addition, it should be noted that the normative sources and empirical material selected for this study have been subject to the inductive method of scientific cognition, as well as the text based on representative examples. A comprehensive presentation of these sources and materials in the text of the work is not necessary for the purposes and objectives of the study and may make it difficult to systematically substantiate the concept of the semantic limits of law. The principle that determines the representativeness of the relevant examples in each case is defined and justified, either explicitly or by context.

The thesis also uses general research methods, including, inter alia, the use of a logical method of reduction to absurdity (“reductio ad absurdum”), which corresponds to the objectives of the study of the content and style, as well as its subject matter as such.

The source base for the dissertation comprises of, first of all, (1) Russian and foreign normative sources and empirical material related to the following main areas: criteria for evaluating information harmful to the health and (or) development of children; processing of information that has lost its relevance due to subsequent events; administrative offences and crimes related to the dissemination of information; creation of creative works with specific prototypes of characters; game activities not related to gambling; use of references to absurdity in legal argumentation; (2) academic works in the field of game analysis in the social and human sciences, including such authors as R. Bartle, R. Caillois, M. Consalvo, M. Midgley, J. Stenros, J. Huizinga etc.; (3) academic

62 Thus, for example, in the interpretation of S.N. Kasatkin, the method of analytical jurisprudence is expressed in the following stages: “1) the term (concept) being explained is considered in isolation, and as part of the holistic statements forming the most typical cases of its use in the legal practice of the legal system; 2) on the basis and in the context of these statements, the term (concept) is explained by: a) establishing the conditions of truthfulness of such statements (the conditions under which the relevant term is used in a relevant, appropriate and effective way); b) The definition of the speech function of a statement, in particular how these statements (and the dictionary in question) are used in drawing a legal conclusion based on the rules in a particular case. See: Kasatkin S.N. Explanation of Legal Concepts in the Analytical Jurisprudence of H. Hart: Methodology and Problematization // Proceedings of the Institute of State and Law of the Russian Academy of Sciences. 2018. Vol. 13. No. 1. – PP. 52–53

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works in the field of social philosophy and philosophy of law belonging to the authors, who developed approaches to the analysis of the relationship between games and law, the study of the analogy of law and games or the establishment of rational boundaries of legal interpretation and semantics of law or common sense in law, in particular the works of B. Jackson, A. Ross, J. Finnis, L. Fuller, H. Hart and others; (4) academic works in the field of theoretical sociology, first of all, based on the methodology of social constructionism and assuming the study of the principles of formation of the value of subjects of social relationships and the nature of such value that directly or indirectly presupposes the relativity of certain social relationships to the field of legal regulation, in particular, the works of P. Berger, T. Luckmann, T. Parsons, J. Treviño, S. Abrutyn, etc.

From the standpoint of the theoretical grounds of research, the reconstruction of the problem area of the semantic limits of law predetermined the necessity of addressing the works of Russian researchers – specialists in philosophy, theory and sociology of law, history of legal thought: S.S. Alekseev, M.V. Antonov, N.V. Varlamova, V.G. Grafsky, Y.I. Grevtsov, S.N. Kasatkin, I.Yu. Kozlikhin, V.V. Lazarev, V.V. Lapaeva, D.I. Lukovskaya, V.S. Nersesyants, A.V. Polyakov, N.N. Tarasov, E.V. Timoshina, A.F. Cherdantsev, I.L. Chestnov etc., as well as foreign law theorists and philosophers of law – R. Alexy, E. Bulygin, B. Bix, R. Dworkin, H. Kelsen, A. Marmor, S. Paulson, W. Twinning, J. Raz, G. Radbruch, A. Ross, R. Summers, L. Fuller, H. Hart, etc.

The concept of the semantic limits of law is considered in the first place in the context of the problems of analysis of game activity in social sciences and humanities, presented in the works of the authors of interdisciplinary studies related to mediaphilosophy and “game studies”, in particular, the following authors: foreign ones – R. Bartle, R. Caillois, E. Castronova, M. Consalvo, M. Midgley, J. Stenros, J. Huizinga etc. and domestic – V.V. Savchuk et al., as well as authors of special legal and expert researches in the field of relations of theoretical and practical jurisprudence to gaming

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activity, including the following foreign scholars and practitioners – B. Duranske, G. Lastowka, S. Kane, J. Fairfield, D. Hunter et al. and domestic ones – A. Savelyev et al.

Since the urgency of the problem of the semantic limits of law is substantiated not only through the systematic nature of special legal problems of interpretation of law, but also by reference to the context of modern culturology, and the reconstruction of one of the key criteria of the semantic limits of law is carried out using the methodological potential of theoretical sociology, the theoretical foundations of the research include the ideas and concepts of the authors, whose works relate to these areas of knowledge. In particular, we are talking about certain domestic researchers – O.Y. Volkov, Y.K. Volkov, A.A. Lisenkova, O.V. Sergeeva, et al. – and foreign ones – S. Abrutyn, P. Berger, T. Luckmann, N. Luhmann, J. Austin, T. Parsons, J. Treviño.

The reference to the general methodology defined by the linguistic turn of the postclassical scientific rationality, which at the same time forms an organic part of the context of social constructionism in theoretical sociology, predetermines as the theoretical basis for the study the works of the key authors in this field, primarily foreign ones, namely representatives of analytical and “post-analytical” philosophy, on the one hand, – L. Wittgenstein, A. Korzybski, G. Moore, B. Russell, and of hermeneutics, on the other hand, W. Diltey, M. Heidegger, H.-G. Gadamer, E. Husserl et al.

Theoretical and practical significance of the study is that it suggests an original theory that proposes a model for explaining legal semantics and defining the boundaries for interpretation and application of law, which are at the intersection of absurdity and common sense and applicable primarily to relationships mediated by virtual reality. The logic of the conception may also be extended to lawmaking. The concept of the semantic limits of law makes it possible to construct a rational reasoning explaining the possibility or impossibility of application of law in a particular context that is relevant, first of all, to the information culture of the society in the digital economy – in particular, to determine

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when the “interference” of law to the field of the imaginary can be justified and in which – not. Conclusions of the dissertation research can be used as a basis for further academic development of the methodology of theory and philosophy of law, legal interpretation, information law, as well as interdisciplinary research related to the use of the methodology of social constructionism, including the study of game activities. The results of the research can also be used both in the practice of teaching and in the development of textbooks and manuals on the main courses of bachelor’s and master’s degrees “Theory of State and Law”, “Problems of Theory of State and Law”, “History of Political and Legal Teachings”, “History and Methodology of Legal Science”, “Modern Problems of Legal Science”, “Philosophy of Law”, “Sociology of Law”, as well as in the development of special courses, including “Interpretation of Law”, “Public and Private Law in the Digital Age”, “Legal Regulation of Relationships in the Internet”.

The provisions to be defended. The aspects of academic novelty of the dissertation mentioned before are disclosed inter alia by means of the following main provisions to be defended.

1. One of the priority tasks of modern legal theory is to reconsider law in the conditions of the medial turn, the components of which are the digital turn and the game (ludic) turn. The concept of the medial turn, justified in the Russian interdisciplinary research by V.V. Savchuk, reflects fundamental changes in social and cultural life, which law is a part of. The understanding of term “law” itself in the context of this study is determined by the methodology of analytical jurisprudence in the interpretation of H. Hart. Such a methodology was dictated by the “linguistic turn” in the development of scientific cognition and implies skepticism towards traditional methods of definition, but allows a description of the “core meaning” of the term based on common sense. The medial turn in general sets the need for conceptualization and understanding of media reality as such. Consequently, the digital turn determines the development of virtual and augmented reality

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technologies, which qualitatively change the mediaspace. Finally, the game turn, which was thought through in mediaphilosophy and game studies, including the approaches of J. Huizinga, R. Caillois and late L. Wittgenstein, suggests legitimization of game practices in culture and aggravates the problem of simulation in the mediaspace. Thus, in general terms, the key subject of the study is the relationship between law and “deceptive” media space,63 which can often be characterized by virtuality and simulation. At a lower level of theoretical generalizations, the main question of legal theory in the context of the medial turn can be posed as follows: in which cases legal norms in the mediaspace should have effect, and in which cases – not, because simulation excludes the effect of law, and in which specific way this can be explained with a degree of clarity sufficient for legal argumentation. The presence of such a simulation is the key unifying feature for the selection of empirical examples of legal collisions, which emerge or are actualized in the conditions of medial turn and allow giving substantiation to the hypothesis about the semantic limits of law.

2. The empirical material of the study confirms the problem of the need to determine which social relationships mediated by the mediaspace may be excluded from the scope of law because of the simulations. Taking into account the adopted methodological approach, the initial premises of the study should be defined by the legal collisions of game activities in the digital environment, expressed in controversial cases of application of positive law rules that exclude the possibility of judicial protection of claims arising from organization of games and participation in them, as well as legal qualification of the turnover of “virtual property” for real money. However, the recognition of simulation as the major problem factor also makes it possible to include into the scope of legal issues in

63 Hereinafter, the hypostasis of law in the phrase “attitude / relation of law [to something]” should be interpreted only as a literature method of natural language, aimed at expressing the most general view of the problem, which implies the unification in one context of different dogmatic categories – the effect of law [in the media space], the application of law [to the artifacts of media reality], the interpretation of legal texts [in relation to social relationships mediated by media reality], etc.

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consideration the legal collisions that are indirectly related to virtual reality, but do not necessarily involve the analysis of the gameplay as such – for example, those related to making of law enforcement decisions on the limitation of access to the paratexts of computer games, if the grounds for such decisions are formed by controversial qualification of virtual game objects as real objects (for example, the qualification of the description of the fictitious way of making an “explosive” as corresponding to the real legislative restrictions). Following this logic, the relevant empirical material of the study also shall include the examples of legal conflicts, in which, in general terms, the issue is not related to games and is raised not so much with regard to the possibility of “invasion” of the real law into the virtual reality, but rather with regard to the possibility to apply law to social relationships related to something unserious, imaginary or irrelevant, without violation common sense. An example of a typical problem area in this case is the collisions related to the interpretation of the criteria of information prohibited for dissemination inn the Internet. All of the collisions considered in the study can be logically connected due to the following invariant features defined by the context of the medial turn and characterizing the legally significant features of social relationships mediated by the mediaspace: (1) the object of such social relationships cannot be reduced to material objects or special legal constructs; (2) in each of the collisions considered, it is necessary to resolve the additional problem of the relation of media reality to the scope of legal regulation; (3) erroneous interpretation of legal texts and/or application of law implies an intuitive posing of the question of the correspondence of the result of such interpretation or application to common sense.

3. The problem of the relation of law to simulation in the mediaspace under consideration is not a branch-specific one, but a universal one. It is part of the subject area of legal theory and relates to the problems of application of law and interpretation of legal texts. The question of determining the conditions under which legal texts can be

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interpreted in such a way that the scope of possible meanings of the concept-words used in them will include objects of social relationships mediated by virtual reality has been subjected to academic analysis so far, mainly in the framework of branch studies in the field of civil and information law, however, the versatile empirical material selected on the basis of the initial methodological hypothesis allows us to demonstrate the potential practical relevance of the problem for all areas of jurisprudence, which is due to the totality of the medial turn. This circumstance alone makes it possible to postulate the general theoretical significance of the problem under study. At the same time, the diachronous analysis of the development of legal thought makes it possible to directly substantiate and legitimize the discourse of this problem in the context of philosophy and theory of law, in particular, the works of L. Fuller and H. Hart, as well as their subsequent critical rethinking. Thus, the problem of the relation of law to simulation in the mediaspace can be interpreted as a problem of the criteria of absurdity in the application of the law based on the concept of implicit “generally shared assumptions” outlined in L. Fuller’s book “Anatomy of the Law” (1968). In some virtual reality cases, it is possible to see a contradiction to common sense. In turn, the problem in question can also be interpreted as a problem of interpretation of legal texts within the framework of H. Hart’s general analytical and legal methodological premise on the “core and penumbra” of concept-words used in a legal text, as reflected in his discussion with L. Fuller and as further developed in the book “The Concept of Law” (1961), since, in the light of this methodology, the contentious issues of the extrapolation of legal texts on media space artefacts form the “penumbra” of meanings. However, although these approaches allow us to interpret the issue of relation of law to simulation in the mediaspace as a problem of philosophy and theory of law, they do not allow us to solve this problem, which leads to further research analysis.

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4. The most relevant of the existing general approaches, which are directly or indirectly designed to explain absurdity in the application of law and the interpretation of legal texts, do not provide a convincing opportunity to determine the relation of law to simulation in the mediaspace. A separate part of the empirical research material, related to the use of references to absurdity or common sense in the legal reasoning of enforcement decisions, allows legitimizing the problem as a problem of absurdity. The inclusion of the simulacra of the media space into the sphere of law is a special case of absurdity, and not of nonsense, in the application and interpretation of the law. In this case the absurdity reflects a fundamental contradiction to common sense as the implicit rationality of law. Such a contradiction consists of the application of “real” and “serious” law to a closed playful simulacrum, in particular of virtual reality, in the that very context which does not imply consequences (as interpreted in the light of works by J. Huizinga and E. Castronova) to the social reality of everyday life, and therefore has no inter-subjective social significance. Nevertheless, as the study shows, despite the established practice of that kind of legal argumentation, which implies references to absurdity or common sense, there are no approaches in the modern theory and philosophy of law that would allow reconstructing the limits of law in the space of meanings of media reality with a sufficient degree of clarity. The notions of “moral limits of law” known to legal science cannot be interpreted as a basis for solving the problem, since the contradiction of morality is not a necessary sign of absurdity in law. The foreign “doctrine of absurdity” in the interpretation of law also does not allow this to be done, since it does not contain explicit rationalization of the criteria of such absurdity. The possibilities of the approaches of deontic logic, including semantic normativity in the interpretation of M. Klatt, to establish a semantic relationship in the field of the “penumbra” relating to media reality between the fact and the conceptword used in legal text, are limited, which in particular does not allow to apply the conception of semantic normativity in the interpretation by M. Klatt to resolve the problem

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posed. These circumstances necessitate the development of specific criteria for absurdity in law, oriented towards the simulations of the mediaspace.

5. The development of special criteria for absurdity, which determine the limits of law in the mediaspace, cannot ignore the concept of the “magic circle”, developed in game studies, which are directly aimed at understanding the current simulative game practices typical of the media reality. At the same time, the attempts to justify the limits of application of law to the simulation in the media reality, known to legal studies so far and based on this methodological approach, do not allow to reconstruct the required criteria. The methodological approach itself, which is based on the concept of the “magic circle”, originally derived from the metaphor of J. Huizinga, is now subject to severe criticism in game studies, as it has traditionally been interpreted as a basis for distinguishing between the “real” and the “virtual” space, and the basis for such a distinction in the light of contemporary cultural and sociological concepts is questionable – from the point of view of social constructionism, we can say that the virtual is real and vice versa. However, the study argues for an approach that critically evaluates the arguments of both supporters and opponents of the “magic circle” concept. On the one hand, one cannot agree with the notion that social practices can be strictly delineated by the criterion of relativity to a closed field of playful practices, which are not of significance, since sociological and other analyses of these practices show that play can sometimes be quite serious. On the other hand, it is for the purposes of jurisprudence that the need to rethink the concept of the “magic circle” or to develop a similar concept cannot be denied in principle: one of the main purposes of law is to give conventional certainty to the uncertain social reality. Accordingly, jurisprudence, unlike many other social and humanitarian sciences, cannot afford to accept uncertainty about what exactly should be recognized as a simulation. At the same time, the methodological potential of special legal approaches based on the metaphor of the “magic circle” and proposed by B. Duranske, J. Fairfield and other authors

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also seems to be limited and does not allow reconstructing the semantic limits of law as a universal category that corresponds to the conditions of the medial turn, and is not limited only to the problem area of multiuser computer games. One of the main limitations of the known concepts of the “magic circle” is reflected in the attempt to qualify from the point of view of “virtual” and “real” the studied social relationships, actions of the parties, or the subjective side, while sufficient clarity in the solution of the problem can be achieved only when studying the object of social relationships. The qualification of the parties’ actions, interpreted through the concept of consent or subjective side, is also limited in application, since in legal systems with a significant number of imperative norms, the consent of the parties cannot cancel the legal qualification of their actions from the point of view of the real law. Moreover, narrow concepts of the “magic circle”, which focus only on computer virtual worlds, are not designed for other virtual reality artifacts that imply indirect communication, such as, for example, artistic creation. Thus, the development of criteria for the absurdity of the application and interpretation of law in connection with the simulation of the media reality can also be interpreted as a rethinking of the legal metaphor of the “magic circle”.

6. A necessary but insufficient criterion for establishing the absurdity in the application of law and interpretation of legal texts, which is associated with the simulation in the mediaspace, is the lack of functional relevance (adequacy) of the object of social relationships to the central meaning of the concept-word used in the legal text (the “criterion of reality”). Interpretation of a legal text that implies the need to determine whether or not an object of social relationships that is mediated by the media reality is within the scope of the possible meanings of the concept-word used in such text, as well as the subsequent application of law, requires correspondence between such object and the concept-word. In current socio-cultural conditions, the facts of the media reality are on the “periphery” of the meaning of legal texts. The definition of functional relevance is the