disser_arhipov

68

approach allows for a certain amount of terminological flexibility in the study. In addition, from the point of view of the terminology of the teaching of the “late” L. Wittgenstein, it is a question of “language games”. Such games, nevertheless, are conducted at the highest level and, in the light of other concepts that relate, rather, to the field of the sociology of knowledge, they represent a kind of method not so much of “discovery” in the natural scientific sense, as the means of reproduction and development of the “studied” phenomenon itself.73

The need for this comment is largely due to the practices common in modern legal science. As J. Fairfield notes in his recent article, the title of which hints at the application of the methodology related to general jurisprudence under consideration (“The LanguageGame of Privacy”):

«Legal academics, however, suffer from a need to define. They do so by logically associating a word with examples or cases that the word represents and by excluding

merge) [Wittgenstein 1967: § 43] (emphasis added – V.A.)». See: Wittgenstein L. Selected Works (in Russian) / Transl. from English. Moscow: Publishing House «Territory of the Future», 2005. P. 68.

73 This interpretation is based on the works of Wittgenstein himself as well as on the following interpretations. A detailed and in-depth analysis of the thinker’s ideas in Russian can also be found in the following edition: Philosophical Ideas of Ludwig Wittgenstein. – M.: Institute of Philosophy of the Russian Academy of Sciences, 1996. – 169 p. Let us cite several statements by M.S. Kozlova about the concept of language games: “Overcoming the previous positions that seemed to him to be flawless, Wittgenstein comes to the conclusion that understanding the essence of the statements, the meanings of words – and not least the most important philosophical positions and concepts – requires that art penetrate into their hidden logical structure, the meaning contained in them, and suggests something quite different. What is really necessary – this is his conviction now – is the ability to orient oneself in action, functions of language, its practical use in the ‘fabric’ of life itself, behavior – that is, where the work of words, phrases are quite open to the eye. With such a realistic (also called pragmatic), earthly view of things, the basic structural formations of Wittgenstein’s language did not seem to be its former limiting elements in the form of elementary proposals correlated with the simplest (also extreme) situations and supposedly constituting a kind of ‘substance’ of the language. In reasoning, narration, reading, writing and other forms of speech comprehension, ‘families’ of more or less related, mobile and living functional systems and practices were highlighted. Wittgenstein called them language games” (p. 7); “Language games are a kind of analytical method (a set of methods) for clarifying the language, highlighting its functions and work. It is conceived as a search for ways out of various conceptual deadlocks, which the philosophical tradition abounds in” (p. 10); “The idea of the language game assumes that language is not static in principle, that it – like the performance of music, the stage action, sports and other games – is dynamic in its very nature, lives only in action, deeds, and in the practice of communication. Wittgenstein emphasized that signs as something “real” – in sound, writing, printing – are dead, but this does not mean that in order to breathe life into them, you need to add something fundamentally different from the material – something purely spiritual. This old-fashioned difficulty the philosopher resolves in his own way: life gives the sign its application! And this, understandably, presupposes a real life of language or language game. Interpretation of the meaning of the sign as a method of its use and the principle of language games are aspects of a common position” (p. 12). See: Kozlova M.S. The Idea of «Language Games» // Philosophical Ideas of Ludwig Wittgenstein. – M.: Institute of Philosophy of the Russian Academy of Sciences, 1996. PP. 5 – 24.

69

examples or cases that they believe fall outside of the meaning. This definition is often artificial. Consider the definition of “good faith” in a contract, which may be defined by the drafting attorneys to mean things not particularly recognizable from the meaning of “good” or “faith.” Indeed, such an approach is necessary in tasks like contract law, because contractual definitions are the basis for the careful exercise of power by courts. But lawyers sometimes fail to recognize that their carefully pruned definitions are precisely that—maimed, crippled, pruned versions of words that have a richer life beyond the contract or academy. Legal terms of art are necessarily deprived of much of their natural meaning by the very process of definition. Legal terms of art are explications: specific tools for specific contexts, not explanations of the meaning of a term (emphasis added –

V.A.)».74

The author further notes that:

«There is nothing wrong with carefully defined terms of legal art. The difficulty arises when lawyers and legal academics fail to signal that they are using a term of general use as a term of art—that they are using one explication of the term, not its full meaning. And this is particularly so when lawyers and legal academics make claims about the essential meaning of terms. For a legal thinker to say that privacy “is” something—by reference to case law, statute, and legal theory—is too often to say that privacy “is not” its everyday use. From a linguist’s perspective, that cannot be correct. And even lawyers must recognize that “privacy” is not a legal term of art. It can’t be. We ask whether ordinary people have a reasonable expectation of privacy. The meaning of the term is dependent in significant part on what people expect when they consider something “private.” Privacy is practiced in the bedroom and the bathroom, not the courtroom. So we must take the linguist’s path».75

Functionally, in this text, the above quotes clarify two things simultaneously: they convey the approach of the author of this study to legal terminology (the terms are not “carved in stone”, do not reflect any “entities”, but are instrumental) and, at the same time, illustrate one of the theses of this work. In a special sense of the methodology presented by J. Fairfield, the concept of the semantic limits of law is aimed at defining rules for relating the semantics of “legal and technical terms” to the semantics of their prototypes corresponding to the natural language.

74 Fairfield J., The Language-Game of Privacy // Michigan Law Review. – 2018. – Vol. 116. – Issue 6. – PP. 1174–

1175.

75 Ibid. P. 1169.

70

In furtherance of the above ideas, it makes sense to focus on that aspect that the social constructionism (which is part of the methodology for the determining of the semantic limits of law in connection with the concept of generalized symbolic media, as will be seen in Chapters 2 and 3 of this study) lie at the heart of the general academic worldview that predetermined the content and focus of the present study, as well as the method of its construction. The ideas expressed in the book by P. Berger and T. Luckmann “The Social Construction of Reality”,76 which often serves as a subject of analysis, rethinking and discussion within the Saint Petersburg School of Legal Philosophy, allows us to consider law as a social institution that has a subjective-objective nature. It is difficult to disagree with the concept of genesis of law, presented in the works of A.V. Polyakov and E.V. Timoshina, according to whom law is a phenomenon constructed in the process of communication by actors performing a sequence of communicative actions because of which this social institution is formed. The actions of social actors who manifest themselves outside, i.e. are carrying out externalization, undergo the processes of habitualization in case they allow the best way to achieve a socially significant goal.77 The habitualized actions are subsequently mutually typified and form patterns of behavior of social subjects. The typified actions are internalized – assimilated by social actors in the process of communication. In this way, social institutions are formed; and law is one of such socially constructed institutions.78 What does this mean for the methodology of legal research?

76See e.g.: Berger P., Luckmann T. Social Construction of Reality. A Treatise in the Sociology of Knowledge (in Russian). – M.: «Medium», 1995 – 323 p. [Electronic edition] // «Library of Skepticism». – [Site]. – URL: http://skepdic.ru/wp– content/uploads/2012/11/0458680_BCA67_piter_berger_lukman_t_socialnoe_konstruirovanie_realnosti_tr.pdf_BCA67_piter_ berger_lukman_t_socialnoe_konstruirovanie_realnosti_tr.pdf (accessed: 21.02.2019).

77Note that the question of which goals are considered “socially significant” constitutes, in a sense, the subject matter of this study. It is easy to take this expression as self-evident, but legal practice needs clear guidelines, which, as it seems to us, and can offer a concept of generalized symbolic media from theoretical sociology “coupled” with the theory of legal relations in jurisprudence.

78See: 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. PP. 75 – 81.

71

At a minimum, such terms as “science”, “examine”, “solve a scientific problem” and other similar to them, so familiar to academic discourse, have some degree of conventionality or metaphorical expressions. With due regard to e.g. a natural law tradition of a Platonic kind, we note that on the whole, what we know about law is mainly that it “exists” as a communicative practice, which is reproduced in the process of interaction of people who share a certain minimum of common values. Moreover, when we pronounce the word “law”, one should not harbor the illusion that we definitely mean a strict, once and for all definite semantic field. On the contrary, the entire history of the development of legal thought shows the diversity of possible meanings or, to be specific, the nuances of meanings and the different distribution of specific weight between the various semantic components of the term “law”. Here you can naturally say the phrase: “Legal research is fundamentally different from the natural and exact sciences”. On the one hand, it accurately expresses its meaning. On the other hand, it can be interpreted as an allegory of the phrase “The term ‘science’ is used in reference to jurisprudence and in relation to the natural and exact sciences in different meanings”. And that is perfectly normal, it is just the rules of an established “language game” in the terminology of L. Wittgenstein. Both law and the above-mentioned non-legal sciences, in fact, are united by the principle of forming knowledge through abstract terminological models. At the same time, such abstract terminological models of jurisprudence differ from those of natural science and exact sciences, they vary in general form. A naive question of how law can be considered as science if law is what people create is in fact becoming an expression of the fundamental nature of legal knowledge. Legal research is only partially studying the facts that are objective with respect to a particular subject. In another part, legal science changes these facts and creates them within the framework of a complex communicative activity.

As the authors note: “The institutional world, like any other institution, is an objectivized human activity. It means that despite the fact that the social world is marked by objectivity in human perception, thus it does not acquire independence from human activity, in the process of which it is created” (p. 80).

72

Thus, the general methodology of the present research, which determines the author’s view – a subjective, yet based on academic methodology – of how the research should be structured, suggests the following basic assumptions:

First, the terms “legal science”, “examine”, “solving of a scientific problem” and others like this are partly an allegory for the process of constructing legal reality as a subjective-objective reality implying the “mapping” of reality within the framework of models of normative social relationships.

Second, the “construction” of such a subjective-objective reality, although it contains an element of creative discretion, develops as part of a sui generis “language game” (in the terminology of the “late” L. Wittgenstein). The discursive practice of legal science, in which this research is performed, is a practice of a language game. However, we have to note already that a game as such is not necessarily something unserious.

Third, the language game is, above all, a game. And, like any game, it has rules that define it as a phenomenon. If you do not follow the rules of a game, the game disappears. Referring to the “unserious” examples of the present work, this is most clearly seen in the example of tabletop role-playing games.79 Law can also be presented as certain kind of a language game, and any game exists as long as its rules are observed.

Fourth, as already noted, if you violate the rules of a language game called “law”, then such a language game ceases to exist. The violator of this game, speaking already in the language of J. Huizinga, is a “spielbrecher”,80 a one who spoils the game, destroys it. As a result, it is already becoming obvious that the semantic limits of law are determined by borderline cases of law as a “language game”.

Concluding the conversation about the general methodology, we note that the main message of the work is dual and, in a sense, “auto-reflective”. On the one hand, the

79They “exist” only insofar as their participants maintain communication “as if” (remembering H. Veihinger's “als ob”) they talked about the events taking place “in fact”.

80German “spielbrecher”, literally “one who breaks the game”.

73

phenomenon under study, designated by the term the “semantic limits of law”, is a phenomenon that is actualized at the present stage of the information society, the culture of which is characterized by the dualism of the fictional (artistic, virtual, simulative, unserious) and the actual (documentary, real, genuine, serious), the epitome of which are the contexts of virtual games. On the other hand, in the light of such a methodology, the metaphor of “language game” can be applied to law itself since it is a communicative practice constituting the institution of a subjective-objective social reality. The explanation of the semantic limits of law is very organically built on such a methodology, which is based on the linguistic turn of the post-classical type of scientific rationality and social constructionism. Thus, it is natural that law itself can be considered as a [language] game. In this very view, despite some, perhaps, apparent controversy stemming from a conservative aesthetic and ethical position, a model of description of law, – and we have to emphasize that it is one of the possible models, – suggesting reliance on game metaphors seems to be quite workable. Moreover, oddly enough, such experience of understanding the legal reality has already encountered in the socio-humanitarian discourse in general, and the philosophy of law in particular in precisely this direction, as demonstrated in this study.

§ 2. Legal collisions of game activity in digital environment as the main premise of the research

Game activity in digital environment,81 not related to gambling in the legal sense,82 and the resulting legal collisions define the starting point of this study. In the present

81 Here, in the context of this paper, we refer to the hypothetical and current legal conflicts that arise in the interaction between players and game companies, as well as between the players themselves, without the involvement of game companies, primarily in relation to various “virtual worlds” and multiplayer online role-playing games, as the products of the digital entertainment industry of this genre most manifests the feature of persistence of the virtual world, understood in a narrow technological sense. Examples are meant from the classical object of social and humanitarian sciences – Second Life – to

74

paragraph of the study, we will focus on the most relevant aspects of the problem, in order not to repeat (apart from a few fundamental things) the provisions and theses relating to legal research in the field of games that have been developed by the author since 2011.83 It should only be noted that interest in this issue is only growing, as evidenced by recent publications that reflect ideas that are essentially in tune with those presented by the author of this study more than five years ago, which can probably only be welcomed in terms of legitimizing the problem in the scientific discourse.84

In our opinion, both practical and theoretical85 the problems of multiplayer online games with a permanent (persistent) environment represent a very effective snapshot of the legal issues of the digital era and the medial turn86 – not only “so far” (the main stage of research took place during the first decade of the XXIst century), but also “especially now”, since it is precisely the rethinking of the general socio-cultural significance of this problem that makes one think that it is probably not only about games, but also about changing social practices in the context of the medial turn as a whole. This point of view is based, among other things, on the assessment given to the methodological potential of

modern projects such as The Elder Scrolls: Online, as well as poorly researched, but very promising for game studies classic text games – Achaea, Aardwolf, etc.

82Legal criteria for gambling in Russia and abroad suggest a significant difference between gambling and nongambling, both immersive and cyber-sports. The distinction between gambling and non-gambling is explored in more detail in the next paragraph, as these phenomena remain in many ways in the same context of discussion and criticism. Interestingly, the law has long developed approaches to gambling, but not yet to modern computer games, and from time to time legal collisions are caused by the mismatch between the approaches applicable to gambling and the nature of relations arising in connection with immersive computer games.

83This implies, in particular, the following publications: Arkhipov V.V., Virtual Worlds in Legal Studies. An Inquiry into the Subject of Research / 25th IVR World Congress of Philosophy of Law and Social Philosophy Paper [Electronic resource] // Social Sciences Research Network. – [Site]. – URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117762 (accessed: 04.02.2019) and Arkhipov V.V. Virtual Law: Main Problems of the New Direction of Legal Studies // Proceedings of Higher Education Institutions. Jurisprudence. 2013. No. 2. P. 93–114, and also later works referred to in this research.

84See e.g.: Baturin Y.M., Polubinskaya S.V. What Makes Virtual Crimes to Be Real // Proceedings of the Institute of State and Law of the Russian Academy of Sciences. 2018. Vol. 13. No. 2. P. 9–35.

85In practice, these problems are periodically manifested, but it is impossible to say that the number of cases and their importance for the economic and socio-cultural space are so great that such a state of affairs could be considered critical for the entire society. At the same time, we adhere to the thesis that this does not cancel the fundamental importance of the example for the digital age and society in the conditions of the medial turn.

86More detailed justification for this thesis was presented in the following publication: Arkhipov V.V. Virtual Law: Main Problems of the New Direction of Legal Studies // Proceedings of Higher Education Institutions. Jurisprudence. 2013. No. 2. P. 93–114.

75

legal collisions in the digital environment by leading contemporary legal theorists, including R. Posner.87

For simplicity, but without losing meaning, we can use the term “virtual world” to reflect the area of social practices that are the main subject of the present paragraph. In the context of information technology, the term refers to the relatively constant environment simulated by computer media in which users interact with each other through separate virtual representations (“avatars”). Thus, one of the first contemporary researchers of virtual worlds in the legal context, B.T. Duranske, noted that all virtual worlds are computer-simulated spaces (environments), all designed to be “populated” by avatars, all allow interaction between users, many ensure the preservation of user-generated content (“UGC”), many have economic systems.88 The history of virtual worlds goes back for more than a few decades, and the first significant ones appeared at the turn of the 1980s.89 From the perspective of both theoretical sociology and game studies, it may be of interest that games develop a separate context of communication that allows us to think about the qualification of relationships as a “virtual social reality”, just as social reality itself is conceptualized in social constructionism.90 In such circumstances, certain artifacts in the virtual world are beginning to be perceived by users as valuable enough to spend real resources on them. This has also created an economic model for game products, with the

87See e.g.: Au W.J. Second Life of Judge Richard A. Posner [Electronic resource] // New World Notes. – [Site]. – URL: https://nwn.blogs.com/nwn/2006/12/the_second_life.html (accessed: 04.02.2019).

88Duranske B.T. Virtual Law. Navigating the Legal Landscape of Virtual Worlds. – Chicago, Illinois: ABA Publishing, American Bar Association. 2008. P. 2.

89See: Arkhipov V.V. Virtual Law: Main Problems of the New Direction of Legal Studies. P. 96–97.

90Arkhipov V.V. Virtual Law: Main Problems of the New Direction of Legal Studies. P. 98. This line of thought was developed in more detail by the author in the work prepared for participation in the 25th World Congress of the International Association of Philosophy of Law and Social Philosophy, see: Arkhipov V.V., Virtual Worlds in Legal Studies. An Inquiry into the Subject of Research / 25th IVR World Congress of Philosophy of Law and Social Philosophy Paper [Electronic resource] // Social Sciences Research Network. – [Site]. – URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117762 (accessed: 04.02.2019).

76

possibility of “selling” virtual content for real money to users by game companies, as well as the “[mostly] grey91 market” of trading virtual objects between the players themselves.

The emergence of a relatively real economic component of virtual legal relationships has given rise to three interrelated questions. First, whether and when “real” law can be applied to the game, and if so, in which cases. Second, how to qualify “virtual property” from a civil law perspective. Third, if we allow for the possibility of “real” law interfering with “virtual property”, to what extent and in what cases “real” law may interfere in other areas of virtual relations. The context of these questions can be clearly seen in the abstract to the book “Virtual Justice” (2010)92 by G. Lastowka, a professor at Rutgers University School of Law (now, unfortunately, deceased), one of the key researchers of the legal aspects of virtual worlds:

«Tens of millions of people today are living part of their life in a virtual world. In places like World of Warcraft, Second Life, and Free Realms, people are making friends, building communities, creating art, and making real money. Business is booming on the virtual frontier, as billions of dollars are paid in exchange for pixels on screens. But sometimes things go wrong. Virtual criminals defraud online communities in pursuit of real-world profits. People feel cheated when their avatars lose virtual property to wrongdoers. Increasingly, they turn to legal systems for solutions. But when your avatar has been robbed, what law is there to assist you?»93

Let us look at examples of legal conflicts of play in the digital environment, but we emphasize that for the purposes of this study we need to identify a general theoretical problem, of which they are a representative example. The questions of approach and legal qualification of game relations and virtual property in the narrow sense of the word are interesting for us only in that part, in which they serve to develop the main content of

91 “Grey” – since user agreements most often contain prohibitions for players to make “transactions” with virtual

objects.

92See: Lastowka G. The New Laws of Online Worlds (Annotation) [Electronic resource] // Yale University Press. – [Site]. – URL: https://yalebooks.yale.edu/book/9780300177749/virtual-justice (accessed: 04.02.2019).

93Lastowka G. The New Laws of Online Worlds (Annotation) [Electronic resource] // Yale University Press. – [Site].

–URL: https://yalebooks.yale.edu/book/9780300177749/virtual-justice (accessed: 04.02.2019).

77

the research. Therefore, the present paragraph will not present the whole range of cases related to the relations within the framework of computer games, but only certain illustrative examples, otherwise we run the risk of departing from the main thesis of the present work, which is that in the conditions of the medial turn (which is reflected in the full and perfect sense of the word in the virtual relationships in games), the universal problem which can be defined as the problem of the semantic limits of law may and should be reconsidered.94 For this purpose, we will refer to several representative cases from the Russian legal system, followed by brief references to the development of legal practice in this area in foreign countries.

One of the first cases in Russia to address this issue was a claim by a user who had been blocked in several online games because of a suspected violation of the rules of the game. The user believed that his rights as a consumer had been violated, but the court found it necessary to apply the provisions of Chapter 58 of the Civil Code of the Russian Federation (“Conducting Games and Wagers”). It should be reminded that Item 1 Article 1062 of the Civil Code of the Russian Federation provides that claims of citizens and legal entities related to the organization of games and bets or participation in them are not subject to judicial protection, except for claims of persons who took part in games or bets under the influence of deception, violence, threat or malicious agreement of their representative with the organizer of the games or bets, as well as claims specified in Item 5 of Article 1063 of the Civil Code of the Russian Federation (the claims related to the failure of the organizer of the games to comply with the obligation to pay the prize). The application of this article, which is aimed at in-game events proper, be it gambling, sports and other, including multiplayer computer games, is doubtful, but this is the essence of the

94 As much as the author would like to turn this research into a book similar to “Virtual Justice” by G. Lastowka or “Virtual Law” by B. Duranske.