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about further developments in computer and informational technologies.284 The authors considered a question of allocating a “real” object in a “real” park. However, modern informational technologies allow for alternative scenarios as well. We mean technologies of virtual and, specifically, augmented reality. Let us emphasize that the example of augmented reality is especially important for the subject matter of this research.285 Let us imagine a heteronomous legal text that contains a norm preventing from allocating vehicles to parks. Let us now imagine that certain company specializing in innovative informational technologies developed a software product that contains precise image of park that is updated in real time. Finally, let us imagine that this software product contains functionality allowing users to allocate at their discretion any objects in virtual representation of a park. Now, let us assume that one of the users allocated certain “virtual” vehicle in “virtual” copy of the park. At the first glance, this innocent situation is outside of

284 The very first experimental stage of the development of information and telecommunication technologies is usually attributed to the 1960s. XXth century, but even then it was the province of specialists involved in various public, including military and classified, research, as well as enthusiasts in the field of technology, and not the philosophy of law. See: Rustad M.L., D’Angelo D. The Path of Internet Law: An Annotated Guide to Legal Landmarks // Social Science Research Network Website, URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1799578 (accessed: 24.01.2019). At that stage, it was basically too early to even predict (beyond science fiction and futurology) the development of virtual and augmented reality technologies, which will be discussed in the next paragraphs of this paragraph of the study, in terms of social practices and the relationship with legal issues.

285 As the experts note, “the authorship of the term ‘augmented reality’ belongs to Thomas Preston Codell, an engineer at the Boeing Research Laboratory. In 1992, he applied the principles of technology to a system designed to help workers install electrical cables in aircraft. Augmented reality (AR) is a technology that superimposes information in the form of text, graphics, audio and other virtual objects on real objects in real time. It is the interaction of computing devices with the picture of the real world that distinguishes the augmented reality from the virtual one (emphasis added – V.A.)”. See: Yakovlev B.S., Pustov S.I. History, Features and Prospects of Augmented Reality // Proceedings of Tula State University. Technical Sciences. 2013. No. 3. P. 479. See also: Kravtsov, A.A. Use of Augmented Reality Technology for Visualization of a Virtual Object in a Real Environment [Electronic resource] // Scientific Journal of Kuban State University. 2012. No. 84. – [Site]. – URL: https://cyberleninka.ru/article/n/ispolzovanie–tehnologii–dopolnennoy–realnosti–dlya–vizualizatsii– virtualnogo–obekta–v–realnom–interiere (accessed: 24.01.2019). Among the modern technologies of augmented reality are noted (part of these technologies, however, is experimental or already outdated or not used for various reasons, including legal reasons) Google Glass augmented reality glasses, Microsoft Hololens glasses, DARPA virtual reality neural chip, BMW driver's glasses, etc.. See: Drokina K.V., Darbinian T.A. The Analysis of the Possibilities of Application of the Augmented Reality Technology in the Modern Conditions // International Scientific Journal «Innovation Science». 2016. No. 2. P. 114– 116. The experience of augmented reality technologies in the gaming industry is doubly interesting in the light of this work. Author’s top-level practical analysis of the legal problems of one of these games – Pokémon Go (see: Pokémon Go [Electronic resource] // Pokémon Go. The Pokémon Company International, Inc. – [Site]. – URL: https://www.pokemongo.com/en-us/, accessed: 24.01.2019) – is presented in the following video lecture: Arkhipov V.V. Information Relations Within the Framework of Pokémon Go [Electronic resource] // LF Academy. – [Site]. – URL: https://lfacademy.ru/course/13479 (accessed on 24.01.2019).

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law. However, there can be nuances. The park does not belong to software developers. The vehicle may be allocated to a “live” digital copy of the real park. This alone could mislead the visitors of the park. Then, what if the vehicle would not be a simple one, but reflecting some information limited for dissemination? We also can assume that as a result of such kind of actions incorrect image of the park emerged and started to be disseminated outside of the application which leads to substantial distortion of legally significant accurate information about the park. And so on. The question that we are interested in now is the question of whether we can extend the initial rule on prohibition to “allocate vehicles in parks” to the relationships that have specific and live simulation of “vehicle”. In the context of this paragraph of the research, we have to emphasize that this question is slightly more technological than it should be in order to refer to moral philosophy. A possible view that a position, inspired by L. Fuller, that here we also face a question of the purpose of law, looks quite simplified – at first we need to answer the question of why, at least in theory, we can allow that such a purpose could extend to virtual vehicles, and why this is not absurd.286 The teleological approach does not eliminate the problem.

Let us go back, however, to the moral philosophy. The direct source of the previously presented generalization of J. Stanton-Ife about the limits of law and the indirect theoretical reason for the discussion of L. Fuller and H. Hart is the basic principle of utilitarian moral philosophy. J. Mill’s views were based on the idea that “harmless” (i.e., incapable of harming others) behavior cannot be a subject of legal regulation. Later H. Hart rethought this approach.287 It should be noted that “harm” as a criterion determining the possibility of the application of law is considered in the philosophy of utilitarianism and its subsequent interpretations as a kind of main feature of a special subject of social relations,

286 The question posed in this judgment is similar to that of whether writers should ensure that their characters always “observe” the rules of traffic in their works of art. It is not absurd, however, to pose the question in the light of the noted trends in legislation to restrict the dissemination of information.

287See: Hart H.L.A. Positivism and the Separation of Law and Morals.

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which serves as a criterion for the applicability of law and defines the standard of legal interpretation. However, this paper demonstrates that “harm” is not the only possible such criterion. From the perspective of the theoretical sociology model that defines the methodology for this study, “harm” stands out in utilitarianism precisely because it has “socio-currency value”, a concept that will be explained in more detail by the end of this Chapter 2. We believe, however, that J. Mill’s theory, while respecting classical utilitarian thought, does not fully meet the challenges of modern law enforcement, interpretation, and law-making.

Let us conduct a thought experiment, referring to one of the through examples of this work – computer games and interpretation of Article 105 of the Criminal Code of the Russian Federation in such a way that it extends to the “infliction of death” to another “person” (character) in a multiplayer online game. A key question in the light of the applicability of the utilitarian concept (and its subsequent interpretations) is whether it is possible to simulate a situation in which “harm” in the J. Mill’s sense will be present and the possibility of appropriate interpretation and application of the law will continue to raise intuitive doubts. Yes, it seems so. In some multiplayer online games that allow some characters to be “killed” by others, the following situations are possible, for example:288

1) Where the game permits the arbitrary “killing” of one character by another at any time. Player A of a low level performs “peaceful” tasks of the open game space. Player B of a high level suddenly attacks Player A and “kills” him for no apparent reason. When Player A returns to the starting point and continues his “peaceful” activities, Player B waits for him, and “kills” him again. The situation repeats itself several times. On the one hand, it is obvious that Player B interferes in the gameplay of Player A, perhaps even spoiling the game from the subjective point of view of the latter. On the other hand, such situations, if

288 Note that the following examples are constructed in relation to virtual worlds, which are inherent in the quality of virtual social reality, in whole or in part (see § 5.8 of Chapter 1 and § 1 of Chapter 2 of this study).

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allowed by game mechanics, are part of the gameplay process, even if it is unpleasant (here it is appropriate to recall the views of J. Feinberg discussed above). It is probably a case where harm is present, however, to file a lawsuit for the protection of rights, if any, is quite difficult for Player A, although we will not rule out such a possibility in principle.

2) If the game allows the free exchange of “virtual property” between players. Player A, by performing in-game tasks, has accumulated a significant amount of “virtual currency” and decided to buy an expensive item from Player B. However, there is no possibility to purchase “virtual currency” for “real” money. Although the game mechanics provides a multistage confirmation interface, Player B finds a way to deceive Player A: he pretends that his game client gives a software failure, cancels the exchange and resumes it again, but replaces the item desired by Player A with another, similar, but much cheaper one. Assuming that Player A does not double-check the second “deal”, which he considers similar. In this case, Player A will also probably be offended and disappointed, but even in this case it is difficult to imagine a lawsuit to protect the rights of Player A, even though they could have invested a lot of time and intellectual effort in earning a “virtual currency”.289

Examples in this area can be continued for a very long time.290 Let us note the main thing: in each of the cases under consideration we can state the presence of “harm” in the J.

289 Such cases of fraud were observed by the author of this work in some games, for example, in the game Allods

Online.

290 In fact, these practices are found in almost all computer games of the group, the game mechanics which allows you to perform such actions. But the most striking example, perhaps, is still the virtual world of Ultima Online. See: Leonov A. Killing History in Ultima Online: How Criminal Players Opposed the Developers [Electronic resource] // DTF.RU. July 5, 2018. – [Site]. – URL: https://dtf.ru/games/22604–istoriya–ubiystv–v–ultima–online–kak–igroki–prestupniki–protivostoyali– razrabotchikam (accessed on 23.01.2019). The author highlights the following examples from the key developer of the game: “If Dashing Harry is waiting for travelers on the big road and tells them, ‘I’m sorry, gentlemen, but I’ll take either your wallet or your life,’ it’s much less problematic than Basha, who teaches bears and sets them on unsuspecting travelers, or Lord D’eath, who finds it funny to test his new scroll of the ‘Fire Wall’ right in the middle of the forge. D’eath has no forgiveness. However, all three options are perfectly legal”. Original source of the text: Koster R. A Theory of Fun for Game Design (in Russian). Moscow: DMK Press, 2018. – 288 p. Raph(-ael) Koster (b. 1971) is known not only for Ultima Online, but also for other virtual worlds that have left a noticeable mark on the history of computer games. See: Raphael Koster [Electronic resource] // MobyGames. – [Site]. – URL: https://www.mobygames.com/developer/sheet/view/developerId,327570/ (accessed: 23.01.2019).

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Mill’s or close to the J. Mill’s sense. At the same time, there are intuitive doubts that such “harm” corresponds to the object of legal regulation. However, the situation may change if in each case, in the presence of appropriate established social practices, there are quite “real”, for example, monetary relations in parallel with “virtual” ones, for example, if it is possible to calculate the value in the “real” currency of the game character as a whole or in the “virtual” currency owned by him with the possibility of converting (converting) one into another.291 The fact that philosophers and legal scholars of the past did not take these examples into account is not surprising – there were no social practices related to “persistent” simulation of the game environment at the time, as there were no tools to do so at that time – computer and information and telecommunication technologies.

Summing up, we note that the main conclusion that can be drawn from this preliminary consideration of the relationship between law and morality in the light of the problems of teleological interpretation and semantics of normative prescriptions, is that the semantic limits of law as they are understood in this paper, cannot be explained based on the philosophy of morals. The question of the relationship between law and morality turns into the question of the possibility, admissibility and expediency of teleological interpretation. In turn, the latter question goes beyond moral discourse and forces us to turn to the logic and semantics of legal texts. At the same time, these circumstances become especially noticeable in the current socio-cultural context of the medial turn, which actualizes the problem of the semantic limits of law.

291 This is the way it is argued in some court decisions, where the relationship between the user and the gaming company, the subject of which is “virtual property” acquired for real money, is qualified as a relationship between the consumer and the professional party.

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§ 3. Assessment of the semantic limits of law based on the approaches that pretend to have an understanding of absurdity

Thus, the philosophy of morality, as well as its rethinking in the dispute between L. Fuller and H. Hart, does not give us enough methodological material to reconstruct the semantic limits of law, at least in the conditions of the medial turn. Since the empirical material encourages us to correlate the question of the semantic limits of law not only with the concepts of virtual reality in the broad sense of the word, but also with the concepts of absurdity and common sense, and the problem itself, in fact, can be presented as a problem of interpretation of law, let us try to pay further attention in search of a solution to the problem of criteria of the semantic limits of law in the field of legal interpretation. It may be noted with interest that the word “absurd”, both in theory and in practice of legal interpretation, has an unusual fate – it is used by almost everyone (moreover, in the normative and law-enforcement acts themselves), but it is not defined practically by anybody, and we are not even talking about a strict formal-logical definition, but literally about any – contextual, or other – which would allow us to understand what we are talking about with a sufficient degree of certainty, and not to get an illusion of such understanding. Perhaps the author of this study simply fell victim to a plot of his colleagues, who for at least several centuries have agreed on terms in the modern version of the law, but decided to keep everyone else in the dark. Without having the best, let us nevertheless try to work with the material that is available now.

To begin with, based on academic sources and empirical material, let us try to generalize those scant and disparate information about the absurdity that we have at the moment, and at the same time see whether the theory of legal interpretation, which is directly called the “doctrine of absurdity” (even though it develops within the framework of Anglo-American legal thought, the object of research is essentially the same for all legal systems or families – a legal text, etc.), i.e., the text that serves as the basis for the

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reconstruction of the granting-binding norms). As a result, what do we know about absurdity?292

§ 3.1. Selected examples of references to absurdity in the Russian practice of application of law

References to absurdity and common sense are found both in normative sources and in law enforcement practice. One of the most famous examples of the first is Article 32(b) of the Vienna Convention on the Law of Treaties (concluded at Vienna on 23.05.1969),293 according to which additional means of interpretation, including preparatory work and the circumstances of the conclusion of the treaty, may be invoked to confirm the meaning arising from the application of Article 31,294 or to determine the meaning when the interpretation in accordance with Article 31 produces results that are manifestly absurd or unreasonable. One of the few examples of direct application of this article in the practice of international jurisdictions is reflected in the Judgment of the European Court of Human Rights of 24.01.2017. “The case of Khamtokhu and Aksenchik v. the Russian Federation”

(complaints No. 60367/08 and 961/11).295 Item 23 of this Judgment, inter alia, notes that

«a finding of a violation of Article 14 on grounds of difference in treatment of similar groups without objective and reasonable justification can only give rise to one method of redress: levelling “up”, namely, an extension of the more favourable treatment to all persons in a similar situation. Levelling “down”, that is, removing the preferential treatment from those who had hitherto been eligible for it, is not permissible under the Convention. The advances achieved in human rights protection cannot simply be brushed aside. The Preamble to the

292When analyzing the empirical material, let us not forget that the analysis of arguments based on the absurdity of something is mainly of an instrumental nature for us, and the main subject of our study is the search for possible arguments for the formation of a concept of when the law can be applied in principle to relations related to virtual reality, and in which – not.

293See: On the law of treaties [Electronic resource]: Vienna Convention, concluded at Vienna on 23.05.1969 – Access from the legal reference system «ConsultantPlus» (accessed: 12.02.2019).

294Article 31 of the Convention sets forth general rules of interpreting the contracts.

295European Court of Human Rights Ruling of 24.01.2017 «The case of Khamtokhu and Aksenchik v. the Russian Federation (complaints No. 60367/08 and 961/11) [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

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Convention itself establishes an objective of maintenance and “further realisation” of human rights and fundamental freedoms. It is clear in this respect that European protection seeks to promote these rights, and prohibits their dilution on a discretionary basis out of political considerations. Moreover, the implementation of a judgment of the Court should not abolish, restrict or limit existing rights in the domestic legal order, as provided for in Article 53 of the Convention. Any other result of interpretation would be manifestly absurd (emphasis added – V.A.) (Article 32 b) of the Vienna Convention on the law of treaties)».

With regard to the practice of national courts in the Russian Federation and the ECtHR as a whole, as of 17 September 2018296 the legal reference system “ConsultantPlus”, when used in the search criteria for a request “absurd*” (words containing a combination of letters “absurd”, including derivatives of this term) returned 649 results. The “common sense” search criterion returned 488. At the time of the reader’s acquaintance with the materials of this study, these indicators may change. Thus, these terms are used in the texts of law enforcement acts (on the example of the judicial practice of the Russian Federation and the ECtHR, on which the search was focused). Of course, in some cases they are used as a figure of speech, but among the available material there are also logically meaningful examples. Of particular interest are cases in which these words and combinations are used by courts rather than parties to a case. Let us dwell on them in more detail, citing those quotes in which the use of the word “absurdity” and derivatives for the purposes of the study is understandable from the context and without studying the evidence constituting the materials of the case. It should be noted at once that in all other cases not quoted in this paragraph, the absurdity arguments from the entire sample were used by the parties to the case. For ease of reference, the following examples will be given with consecutive numbering.

1) In the Ruling of the Primorsky Kray Court of 23.06.2014, Case No. 33-5131, the court states that

296 Date of the study, which included the collection of practices in this area.

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«...the defendant’s assertion that it is impossible to establish the identity of a person serving a sentence in a penal colony is absurd (hereinafter the word “absurd” is emphasized for the convenience of the reader – V.A.) and calls into question the sentence in a criminal case against this person».297

In this case, “absurdity” is linked to the fact that, according to the current procedure of serving sentences, it is legally impossible to serve a sentence anonymously from legal standpoint – in any cases, and as a matter of fact in any reasonable cases.

2) In the judgment of the Court of Justice of the Jewish Autonomous Region of 13.03.2013 in case No. 4-A-8/2013, the court notes that

«…at the same time, contrary to the applicant’s assertion, it follows from the inspection report dated 20.09.2012 that the director of the company L.S. has been acquainted with the copy of the order to conduct an unscheduled inspection on 03.09.2012 at 12 o’clock, and that she herself has made a corresponding entry in the abovementioned report (pages 9 – 10). Moreover, the correction on the third day of the date has been made and certified by her that, based on the supervisory appeal, L.S. does not deny it. In this connection, the reference of the

latter to the impossibility to establish the date of acquaintance of the audited with the order to conduct the audit due to the correction in the act is absurd».298

Here, “absurdity” can be explained on the basis of the upper level of logical interpretation of the absurd through judgments or statements of facts, between which there is a simple contradiction.

3) In the Decision of the Leninsky District Court of Vladivostok of 18.06.2008 on Case No. 2-228/08 the court states:

«In addition, the procedure for communicating court sentences and subsequent court decisions to subordinate staff for summing up the results, meetings and readings of orders makes the deeds clear and public and does not require any explanation. In addition, the plaintiff Z.’s arguments that he had to avoid meetings with his fellow soldiers were absurd,

297Ruling of the Primorsky Kray Court of 23.06.2014, Case No. 33–5131 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

298See: Resolution of the Court of the Jewish Autonomous Region of 13.03.2013 in the Case No. 4–A–8/2013 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 12.02.2019).

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since the latter had been drafted in a military unit, lived in the location of the unit, served according to the daily schedule – which in itself eliminates the possibility of privacy and avoidance of meetings with fellow soldiers».299

Here, the “absurdity” of the situation, as in the first example, is linked to the fact that, by virtue of both the generally prevailing and normatively settled situation, there is a clear contradiction with the statements made by the participant in the process.

4) As indicated by the court in the Appellate Decision of the Perm Kray Court of 04.02.2015 in the Case No. 33-887,

«…taking into account the abovementioned, the judicial panel does not see any legal grounds to reduce the amount of compensation for moral damage, as the defendant insists in the appeal. Gross negligence in the actions of B. is not established by the court, the defendant did not state the relevant evidence and arguments in the court of first instance, the presence of negligence in the actions of B. in part of the implementation of the transition of the four-lane carriageway is not confirmed by the materials of the civil case, or materials of administrative proceedings. The reference of the defendant to the hood worn on the head of the plaintiff during the transition of the carriageway is absurd and does not indicate gross negligence due to the legal meaning of this concept».300

Based on the high degree of generalization, we can say that the logic of the previous example continues, but here the usual interpretation of the legal concept does not correspond to the usual state of affairs in practice (a hood worn does not in itself exclude the possibility to exercise due diligence when crossing the road).

5) In Decision No. 21-311/2014 of the Samara Oblast’ Court of 26.06.2014, the court states the following:

«References in the complaint to the need to use arbitration and civil procedural law as procedural law when considering this complaint, with the relevant procedures and deadlines,

299See: Decision of the Leninsky District Court of Vladivostok of 18.06.2008, Case No. 2–228/08 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 12.02.2019).

300See: Appellate Ruling of the Perm Kray Court of 04.02.2015, Case No. 33–887 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).