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noticeable that it also has little capacity to provide an answer, or at least a direction, for determining the semantic limits of law in the framework of this study.

Ultimately, J. Stanton-Ife proposes to address another group of views from the field of moral philosophy, which focuses on the principle of neutrality of justification. As J. Rawls also noted, disagreement in society about moral principles is unlikely to disappear in the medium to long term, so the rationale for laws should not include a reference to judgments about the merits or demerits of certain ways of life.268 In general, the author concludes that, in real life, it is extremely difficult to approach more or less universally acceptable notions of the fundamental limits of law, unless these are instrumental limits.269

What is the point of considering the debate on the moral limits of law in the context of this paper? The fact is that until now they have been considered as the main ones for legal semantics as well. For example, at the previous stages of the development of legal systems, the question of the possibility or impossibility, for example, of publishing and distributing certain artistic works (without deviating far from the main examples, we can focus on Nabokov’s “Lolita”) could well be solved on the basis of concepts of the relationship between moral philosophy and law, whatever they may be. In this way, an approach would be used that would actually reveal the moral limits of law. Now the problem is that many practices and cases similar to previous ones, and seemingly allowing the use of moral concepts to clarify the possibility of law enforcement, in fact, have a very different focus and do not allow us to rely on a moral and philosophical discourse alone. Another main example of research is the blocking of a site with a “recipe for making dynamite” in Minecraft, which clearly demonstrates this.

In practice, there is a tendency, in most cases, that the question of the extent of the law and the question of the criteria of absurdity in the interpretation or application of the

268Stanton-Ife J. The Limits of Law. Section “5. Neutrality and Epistemic Restraint”.

269Stanton-Ife J. The Limits of Law. Section “Conclusion”.

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law are directly or indirectly related to the question of the relationship between law and morality. The term “morals” is used in a broad sense and includes what is referred to as “public morality” when referring to the relevant tradition of word usage. The examples below refer to the part of the discussion that aims to reconstruct the criteria of absurdity in the context of the problem of the limits of law, since it is the interpretation and enforcement acts that are contrary to morality that are most often cited as absurd.

Perhaps one of the most obvious and relevant examples in the general context of the work will be the norms of the current positive civil law of the Russian Federation, which fully reflect the general approach inherent in the Romano-Germanic legal system. Thus, in the first part of the Civil Code of the Russian Federation (as amended on 01.09.2018) (hereinafter, “RF CC”) the word “morality” is used in four cases. First of all, in Paragraph 2 Item 2 Article 1, according to which civil rights may be restricted on the basis of federal law and only to the extent necessary for the purpose of protection, including the protection of morals (similarly to Part 3 Article 55 of the Constitution of the Russian Federation). According to Item 4 Article 167 of the RF CC, the court has the right not to apply the consequences of the invalidity of the transaction, if their application would contradict the principles of law and order or morality. Article 169 of the RF CC directly establishes the conclusion of a transaction for the purpose contrary to the principles of law and order or morality as a basis for recognizing such a transaction as invalid. Similarly, in accordance with Item 4 Article 181.5 of the RF CC, unless otherwise provided by law, the decision of the meeting will be null and void, if it is contrary to the principles of law and order or morality.

Positions of the leading civil law scholars are quite typical of the interpretation of the concept of “moral basis” as provided by Article 169 of the RF CC (and, actually, in other cases, where this or a similar concept is used in the text of the Code). Thus, the 2018 commentary under the editorship of A.G. Karapetov (and co-authored by him) notes that

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«[t]he fundamentals of... morality should be understood as the fundamental ethical values shared by the majority of the population of the country... it is necessary to exceed a certain intuitively determined critical level of ethical unbearability (emphasis added – V.A.) of the transaction. For example, the fact that a transaction may seem quite fair does not in itself make it null and void under Article 169 of the Civil Code of the Russian Federation; it requires a blatant, “shocking to conscience” contradiction of the transaction to the most basic notions of morality (emphasis added – V.A.)».270

One cannot but note (positively) the aesthetic and substantive similarity of this commentary to the content of the “Radbruch Formula”, which, in general, refers to such situations. The authors of the commentary emphasize the complexity of the application of evaluation concepts, especially in the context of possible individual ethical ideas of a judge or the multinationalism and multiculturalism of the Russian Federation. However, in its Ruling No. 226-O of June 8, 2004,271 which is also referred to by the authors of the commentary, the Constitutional Court of the Russian Federation notes that

«…the concepts of “public legal order” and “morality”, as well as all evaluation concepts, are filled with content depending on how they are interpreted by civil society actors and law enforcement practices, but they are not so vague that they do not provide a uniform understanding and application of the relevant legal provisions. Article 169 of the Civil Code of the Russian Federation states that the qualifying feature of an antisocial transaction is its purpose, i.e. achievement of such a result, which does not simply meet the law or the norms of morality, but contradicts – obviously and apparently for the participants of civil turnover – the basics of law and order and morality. Anti-sociality of the transaction, which gives the court the right to apply this provision of the Civil Code of the Russian Federation, is revealed in the course of legal proceedings taking into account all the actual circumstances, the nature of violations committed by the parties and their consequences».272

270Karapetov A.G. Commentary to Articles 168–169 of the Civil Code of the Russian Federation // Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation / V.V. Baibak, R.S. Bevzenko, S.L. Budylin et al.; edited by A.G. Karapetov. M.: M–Logos, 2018 [Electronic edition]. 1264 p. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2018). – P. 260.

271See: Ruling of the Constitutional Court of the Russian Federation of 08.06.2004 No. 226–O «On refusal to accept for consideration the complaint of the open joint–stock company «Ufa Oil Refinery» on violation of constitutional rights and freedoms by Article 169 of the Civil Code of the Russian Federation and Paragraph 3 Item 11 Article 7 of the Law of the Russian Federation «On Tax Bodies of the Russian Federation» [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 02.10.2018).

272Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation. P. 260.

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The authors of the commentary under the editorship of A.G. Karapetov offer three possible dogmatic interpretations of the concept of such kind of a transaction (deal) that is contrary to the fundamentals of law and order and morality. The first is that a transaction can be considered as contrary to the principles of law and order and morality if it contradicts the imperative norms of law, which themselves are aimed at protecting the foundations of law and order and morality. In this case, it is a “qualified case of an illegal transaction”. The authors believe that this approach is “as restrictive as possible, highly questionable and does not correspond to the continental European tradition”.273 Second, the hypotheses of Article 168 and Article 169 of the RF CC are not mixed, and Article 169 of the RF CC applies only to those transactions “which are not expressly prohibited by law, but infringe on the fundamental principles of morality and the foundations of law and order”.274 The point of this approach is to “exclude the situation when the law fails to prohibit everything that should be expressly prohibited and does not formally prohibit transactions that infringe on the foundations of law and order and morality, but that cannot be tolerated by law”.275 As the authors point out, this approach is characteristic of the foreign legal order, referring to “good manners” or “public order”. Third: Article 169 of the RF CC can be applied to both cases.

It is stressed that the Russian law enforcement practice up to now has been based on the first approach, however, that such an approach should be revised and the third approach should be adopted, otherwise it makes no sense to eliminate the legal consequences in the form of recovery of the amounts received to the income of the state (without an explicit

273Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation. P. 273.

274Ibid.

275Ibid. P. 274.

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reference to it in a special rule).276 The authors, however, give the example of the position reflected in Item 85 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 25 of June 23, 2015, according to which

«…transactions that violate the fundamental principles of Russian law and order, the principles of social, political and economic organization of society and its moral principles may be qualified as transactions made for this purpose. These transactions may include, in particular, transactions aimed at the production and disposal of objects limited in the civil turnover (relevant types of weapons, ammunition, drugs, other products with properties dangerous to the life and health of citizens, etc.); transactions aimed at the production and dissemination of literature and other products that promote war or ethnic, racial or religious enmity; transactions aimed at the production or sale of forged documents and securities; and transactions that violate the foundations of relations between parents and children».277

The authors of the commentary conclude that this seems to mean a departure from the first and a transition to the third interpretation of “antisocial transactions”.278

Unfortunately, at the time of writing there were no clear examples of court decisions related to Article 169 of the RF CC, in which, according to the authors of the comment under consideration, “an intuitively determined critical level of ethical unbearableness of the transaction” and in which “a blatant, ‘shocking to conscience’ contradiction of the transaction to the most basic notions of morality” would be clearly traced. The court decisions available in the reference legal systems at the moment are focused on situations in which the contradiction to the fundamentals of law and order and morality (at the same

276The authors mention the following court act: On some issues of dispute resolution practice related to the application of Article 169 of the Civil Code of the Russian Federation [Electronic resource]: Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 10.04.2008 No. 22. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

277See: On the application by the courts of certain provisions of Section I of Part 1 of the Civil Code of the Russian Federation [Electronic resource]: Resolution of the Plenum of the Supreme Court of the Russian Federation of 23.06.2015 No.

25.– Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

278Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation. P. 276.

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time) is traced, but which are not that shocking to conscience.279 A number of convincing examples, however, are given by the authors of the commentary themselves. For example:

«[A] transaction in which a reputable film critic, who is expected to be objectively assessed by the public, undertakes, for a fee from the distribution company, to praise a film produced by that distributor and criticize films produced by competitors, or a transaction in which a well-known blogger undertakes to mislead his subscribers into believing that he is a fan of a particular brand of car which he does not, in fact seem to be in clear contradiction with the fundamentals of morality. It appears that if the court encounters a claim by the client against the performer in both cases (e.g., when a film critic or blogger suddenly has a conscience and decides to refrain from direct public lies and hypocrisy), it should state the immorality and nullity of such transactions».280

In any case, let us note that for the purposes of this work, the nuances of the civilistic interpretation are not so important to us. In the context of our discussion, we are interested in the potential way of constructing a reasoning that assumes an explicit or implicit identification of the “blatant” contradiction of a transaction to the fundamentals of morality, on the one hand, and of absurdity in the application or interpretation of law, on the other. Interestingly, many of the examples given by the authors of this commentary are consistent with the meaning of the term “absurdity” in common use among both legal scholars and practitioners. In what sense? It is hard to imagine legal protection, for example, of the parties to a “civil law transaction” between a “woman [or even less so a man] with reduced social responsibility” and a souteneur in a society that shares family values, and specifically traditional family values, while law est ars boni et aequi, and this would be absurd indeed. The conventional principle of absurdity in this case is the

279Or the heart of the author of the present study was hardened during the years of legal practice. Selected examples: Ruling of the Supreme Court of the Russian Federation of 06.09.2016 No. 16–KG16–30 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019); Ruling of the Supreme Court of the Russian Federation of 18.04.2016 No. 308–ES15–18008, Case No. A32–35215/2014 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019); Ruling of the Supreme Court of the Russian Federation of 09.03.2016, No. 308– ES15–18008 in the case No. A32–35215/2014 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019) etc.

280Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation. P. 276.

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mutually exclusive values of, on the one hand, law as such, and, on the other hand, the object of social relations, which we subject to legal qualification.

However, the problem raised in this study, which is related to legal conflicts that arise in the “clash” of reality with the virtual (broadly speaking) world, obviously cannot be resolved by referring to either the moral and philosophical arguments as such or the rules of the law in force that directly refer to morality and/or morality. This should be a different matter. But what is it about? Perhaps more clarity can be shed by discussions that are based on the problem of the relationship between law and morality in general, but are more instrumental. Figuratively speaking, morality can answer the question of whether law regulates, for example, transactions of a kind where people are the object of sale, but it cannot answer the question of whether law extends, for example, to transactions involving virtual avatars of people in online games.

§ 2. Hart-Fuller debate and consequent re-consideration of the debate’s discourse

The Hart-Fuller debate, a discussion that turned to be a landmark one for the philosophy of law in XXth century, could serve as a good starting point in developing of further argument. As a rule, it is considered as a dispute on correlation between law and morality and on the grounds of legal system. At the same time, this discussion strongly emphasizes argument related to the limits of interpretation of law that is consonant with the topic of this research. It is the discussion where H. Hart, while developing the discourse on correlation of law and morality, designates the “problems of penumbra” based on the example of a legal norm on prohibition of the use of vehicles in park. What is important is that this problem is posed in continuation of the question of correlation of law as it is and law as it ought to be.

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«Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say to be called “vehicles” for the purpose of the rule or not?» – H. Hart asks.281

The legal philosopher designates this area of problems as the “penumbra” of law. In his view, the fact that there is such an area of problems indicates that legal argumentation cannot be reconstructed or organized by means of syllogisms in all cases – we also need a value judgment from the standpoint of what ought to be in relation to what is. That said, the philosopher stated:

«It does not follow that, because the opposite of a decision reached blindly in the formalist or literalist manner is a decision intelligently reached by reference to some conception of what ought to be, we have a junction of law and morals. We must, I think, beware of thinking in a too simple-minded fashion about the word “ought.” This is not because there is no distinction to be made between law as it is and ought to be. Far from it. It is because the distinction should be between what is and what from many different points of view ought to be. The word “ought” merely reflects the presents of some standard of criticism; one of these standards is a moral standard but not all standards are moral (emphasized by me – V.A.). We say to our neighbour, “You ought not to lie,” and that may certainly be a moral judgment, but we should remember that the baffled poisoner may say, “I ought to have given her a second does.” The point here is that intelligent decisions which we oppose to mechanical or formal decisions are not necessarily identical with decisions defensible on moral grounds. We may say of many a decision: “Yes, that is right; that is as it ought to be,” and we may mean only that some accepted purpose or policy has been thereby advanced; we may not mean to endorse the moral propriety of the policy or the decision. So the contrast between the mechanical decision and the intelligent one can be reproduced inside a system dedicated to the pursuit of the most evil aims. It does not exist as a contrast to be found only in legal systems which, like our own, widely recognize principles of justice and moral claims of individuals».282

Therefore, H. Hart, on the one hand, develops the concept of “penumbra” in a way that is very close to the subject matter of this research (because we also focus on the problems of “penumbra” in the H. Hart’s sense) as a continuation of discussion on law and morality. On the other hand, H. Hart divorces substantial morality and the concepts of what

281See: Hart H.L.A. Positivism and the Separation of Law and Morals / Transl. into Russian by V.V. Arkhipov // Philosophy and Language of Law / Herbert Lionel Adolphus Hart. – Moscow: Canon+ ROOI «Rehabilitation», 2017. P. 185.

282Ibid. P. 193.

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ought to be in law, because the latter may be defined not only by “good” morality. L. Fuller sees a contradiction here because in the context of the ideas of H. Hart there still is a temptation to connect the latter standard of what ought to be with the term “morality” as well. Moreover, the American critic of H. Hart also questions the possibility to define the “central meaning” of certain words out of context – i.e. without consideration of the purposes (concepts of ought) of those who created the legal text that contains a given word, in general, with consideration of the meaning of the whole paragraph, article or the act itself. The question of “central meaning” and its criticism by L. Fuller are quite important for this research and will be considered in more detail in the Chapter 3. Here, in the end of discussion of moral discourse on limits of law, let us indicate several important conclusions.

Historically, the views on the semantic limits of law may be interpreted as a continuation or, rather, a branch-off of the discussion on correlation between law and morality and, in first instance, on the potential moral limits of law. That is why it makes sense to develop the concept of the semantic limits of law starting from an overview and re-consideration of the discourse on correlation between law and morality in modern sociocultural context. At the same time, we have to stress that known approaches to the moral limits of law do not allow resolving the contradictions that are demonstrated in the pervasive examples of this research – they are not applicable, not detailed enough, or apparently cannot be used without something else.283 Nevertheless, in their well-known

283 The questions of whether counter-terrorism legislation can be applied to a fictitious recipe for the manufacture of an “explosive” in a computer game, or whether the rules of property law as an institution of civil law can be applied to “virtual property” from a particular perspective, seemingly too technical and have little to do with the values of substantive morality. For example, from the illustrations mentioned above, in the story of the blocking of the Minecraft website, “something went wrong” with the application of law long before we reached the point where it makes sense to discuss moral values. Let’s say we try to solve the problem on the basis of morality and state that public morality does not allow the right to interfere in the content of the games. This is obviously not the case from a sociological point of view, because the conventional nature of practice – game or non-game – cannot serve as such a universal barrier (yes, morality can prohibit all games, but it cannot solve all games - it is not the social practice, the potential application of law to which we are considering, but in the specific subject matter of such practice, its variations). In the process of trying to formulate why the right cannot (or may) interfere in such relations, on the contrary, we will come to very formal criteria that will not only determine the possibility of applying (and, accordingly,

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debate it were H. Hart and L. Fuller who came closest to the genuine “semantic” formulation of the problem. Instead of the debate around the nature of “penumbra” in interpretation and application of law, both authors recognized multiplicity of words’ meanings and possibility of emergence of various absurd contradictions in interpretation of law without consideration of the problem that relates to the meanings of words. However, both H. Hart and L. Fuller believed that the main method that would allow avoiding “penumbra” in each specific situation would be to consider the purposes of legal norm. The contradiction between the authors lied rather in the fact that L. Fuller, speaking in H. Hart’s words, believed that “penumbra” is not a rare, non-standard and borderline case, but a natural quality of each legal text. The problem is that in order to resolve the problems of “penumbra” what we need is not just to state that we need to take into consideration the purposes of legal norm. We can agree with the general terminology of dispute between two scholars and believe that what we do is exactly determination of purpose of the legal norm

– we can say so, but it is not decisive for the goals of the research, – what is important is such a mechanism is not developed now. Furthermore, and it is critically important for determining the significance and direction of this work, by this moment the fundamental theory and philosophy of law substantially lacks those consequences that entails digital transformation of society and the medial turn in general in order to decide on the conceptual approach to this area of problems.

Thus, one of the central examples of the Hart-Fuller debate on legal norm that prohibits allocating “vehicles” in a park pertains to classic examples used in the discussions on philosophy and theory of law. However, the authors that enjoyed the peak of their creative proliferation in the middle of XXth century did not and could not know

interpreting in this way) the right, but also the possibility to apply to such relations and the morality itself. In this sense, it is this idea that is revealed consistently in the following pages of this paper.