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Second, and this is related to the previous criticism, the entire concept of the semantic normativity is based on the presumption of rationality and – implicitly – the conscientiousness of the participants in the legal discourse. The concept may be good for describing a “healthy” situation in law, but it is not sufficient to describe and, moreover, to solve the “pathology” (in Fuller’s sense) of law. In other words, one of the weak points of the concept of semantic normativity is the absence of direct attention to absurdity in the field of law.

At the same time, the concept of the semantic normativity cannot be denied at least in that aspect where it clearly shows what are the consistent and the inconsistent kinds of reasoning in law when it comes to the semantics of propositions or individual words.

However, coming back to one of the initial examples, let us assume that someone claims that Article 105 of the Criminal Code of the Russian Federation can be applied to the player who committed the “murder” of a game character. Let us try to apply the concept of the semantic normativity to such a speech act. Yes, it is a “statement”. However, what is next? Well, we can say that this is not the first statement – then it should be evaluated within the framework of the entire system of previous statements. Then we come to the conclusion that such a statement contradicts the previous speech acts in the system of “statements” and “powers”. Perfect. But does this mean that a new statement that breaks the sequence of the old chain of statements is impossible? In terms of the concept of the semantic normativity, yes. Nevertheless, it is not so from the point of view of real life. Otherwise, for example, we would still have seen instances of legal and legitimate slavery in the countries where it had previously been widespread. And the fact is that a rational normative discourse may well be broken by political will and then changed. But such a willful act may also have its own “semantic boundaries” – the boundaries between absurdity and common sense. It seems that such boundaries should be sought, however, not

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directly in deontic logic, but in the fields of knowledge that are directly concerned with the social construction of reality.383

§ 4.2. General remarks on the semantic limits of law, exclusive positivism and deontic logic

As can be seen, the concept of the semantic limits of law is equidistant from normative studies, focusing on deontic logic, and from jusnaturalism, which focuses on the relationship between law and values. The semantic limits of law are not related to logic as such, nor to values as such, but to what is “in the middle”, to the semantics in the broad sense. Note that in the historical and contemporary literature on deontic logic, there is no direct trace of the methodology for determining specific semantic relations between the sign and the signified in that sense which forms the subject matter of this research. This literature is focused more on the study of the internal relationships of the system of signs. In other words, the deontic logic in the current edition mostly does not allow explaining why, from the standpoint of substantial and not formal criteria, when interpreting the term “murder” from Article 105 of the Criminal Code of the Russian Federation, we mean a certain range of “real” life phenomena, but do not include in this circle “murders” occurring in computer games. Modern normativism as a “pure legal theory” takes this question beyond the boundaries of legal science, although it is semantic problems that constitute a significant part of the sharp contradictions of legal practice at current stage.

For example, the approach proposed by E.V. Bulygin is undoubtedly deep, interesting and consistent. At the same time, the scientist remains loyal to scientific positivism in the sense that the questions of substantive semantic principles which are

383 For the sake of justice, the criticism received by the author from his Anglo-American reviewers does not allow to resolve the problems of this research. See e.g.: McIntyre J. Making the Law Explicit: The Normativity of Legal Argumentation. By Matthias Klatt // The Cambridge Law Journal. – 2011. – Vol. 70. – No. 3. – PP. 674–676.

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determined by socio-cultural context are bracketed out by the pure theory of law (as a side effect of which we are likely to encounter a limited scope of clear literature on the legal interpretation methodology). A good example is the argument of E.V. Bulygin with regard to the example of R. Dworkin with Tom and Tim, who signed the possibly a “blasphemous” treaty on Sunday. As E.V. Bulygin develops the example:

«Let us assume that the legislature has passed a law according to which “sacrilegious contracts are invalidated from that time onwards”. Public opinion was divided on the question of whether a contract should be considered to be sacrilegious solely on the grounds that it was signed on Sunday. It is known that the majority of legislators did not think about this issue during the voting and that their opinions were divided as to whether the new law should be interpreted in this way. Tom and Tim signed the contract on Sunday, and now Tom is suing Tim for recognition of the validity of the contract, which in turn challenges Tim... The judge has to decide whether the contract is valid, and for this he must determine whether the proposition “The contract signed by Tom and Tim is sacrilegious” is true... In order to establish the truth of the sentence “The treaty signed by Tom and Tim is sacrilegious”, he has to find out only one thing: whether the contracts signed on Sunday have the property to be sacrilegious, that is, whether the extensional of the predicate “sacrilegious” includes the concepts of “contracts signed on Sunday”. It must be said that in our example, the predicate “sacrilegious” is vague, which places all cases of contracts concluded on Sunday in the area of penumbra (highlighted by me - V.A.). According to this hypothesis, the judge is not in a position to ascertain whether such contracts are sacrilegious or not, since there is no established use of the word in the language of the relationship between the two expressions. In such cases, the judges must decide whether to include the contracts signed on Sunday in the “sacrilegious” predicate or not. Suppose our judge decided that such contracts were sacrilegious. In doing so, he does not approve any true or false proposal, but rather provides a (partial) definition of a “sacrilegious” predicate».384

As the author concludes his further reasoning,

«...difficulties in solving the problems of subsumption (both individual and generic) stem from two different sources: lack of knowledge of facts (gaps in knowledge) and semantic

384 Bulygin E.V. Limits of Logic and Legal Reasoning / Bulygin E.V. Selected Works on the Theory and Philosophy of Law. Transl. from English, German, Spanish / under the scientific ed. by M.V. Antonov, E.N. Lisanyuk, S.I. Maximov. – St. Petersburg: Alef–Press, 2016. – P. 157–158. Since it seems to be almost impossible to find an already published translation of this work into English in Russia (even by means of the Internet), hereinafter the author’s translation is included hereinafter. This article is a follow-up to E.V. Bulygin’s discussion with N. McCormick and his views in the following publication: MacCormick N. Legal Deduction, Legal Predicates and Expert Systems // Revue Internationale de semiotique juridique. – 1992. – Vol. 5. – P. 181–202.

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uncertainty or vagueness of used predicates (gaps in recognition or cases of penumbra)

(emphasis added – V.A.). The idea that the vagueness of any predicate may require a judge to make a decision is undoubtedly correct. However, as McCormick correctly points out, this cannot be considered an argument against the deductive nature of argumentation in law. Even if decision making sometimes forms part of the task of establishing the assumptions of such reasoning, this does not preclude the possibility of reconstructing that reasoning from a premise to a conclusion in the form of a deductive conclusion. This whole question has nothing to do with law (emphasis added – V.A.) and, in particular, reasoning in law, but is a feature of any applied logic».385

The above argument, of course, looks consistent and logical. One problem: in a real situation, implicit premises would be much more diverse. For example, Tom and Tim could be Jews or Muslims in Christian society, which, however, at the constitutional level proclaimed the principles of equality, regardless of religious affiliation. For them, the contract concluded on Sunday could not be blasphemous due to the fact that the conclusion of the day of the week (relatively speaking, not on Friday and not on Saturday). However, this is not the main objection. In fact, there are three main objections.

The first one is based on the approach of L. Fuller, who never (to the author’s best knowledge) received a direct answer to his assertion that,

«Paradoxically, the positivist who insists that all true law is explicitly made is the beneficiary of this silent exclusion; without it his “law” would become too chaotic a thing to offer any anchorage for his faith».386

The second one is based on a view that goes back to legal realism, according to which the real “law in life” is in fact critically determined by semantics. Clear constructions of legal reasoning that follow from deontic logic, although they are formally really clear, often provide little instruments (or do not give any) for the resolution of legal conflicts and collisions in the area of the penumbra. However, metaphorically speaking,

385Bulygin E.V. Limits of Logic and Legal Reasoning. P. 161.

386Fuller L.L. Anatomy of the Law (in Russian) / Transl. from English by V.V. Arkhipov // Russian Yearbook of Law Theory. – 2009. – No. 2. PP. 313–314.

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jurisprudence in the XXIst century represents, relatively speaking, one large area of the penumbra.

The third is partly related to the second and consists in the fact that the pure theory of law is one of the possible models of theoretical reconstruction of law, but this model is more idealistic in its essence than integrative or realistic concepts of law, which, however, also represent certain models.

In this context, it is particularly important to recall what H. Hart said in the discussion with L. Fuller, key to the development of philosophy of law, though this aspect of their discussion remained largely undeveloped. According to the British thinker, the application of the law «to specific cases… cannot be a matter of logical deduction»,387 because «logic does not prescribe interpretation of terms; it dictates neither the stupid nor intelligent interpretation of any expression. Logic only tells you hypothetically that if you give a certain term a certain interpretation then a certain conclusion follows. Logic is silent on how to classify particulars – and this is the heart of a judicial decision (emphasis added – V.A.)».388 For our part, let us add that this is not only the essence of the judicial decision, but also of law in general, especially now, in the face of a change in the general civilizational paradigm and universal digitalization of society.

It should be noted that H. Hart’s approach to the open texture of legal norms based on reducing the problem to the level of judicial discretion and teleological interpretation (and, as a consequence, to the problem of weighing the values) was quite good for its time, but now it can be considered as a kind of elegant departure from the answer on the merits. Well, this is the area of values and judicial discretion, but how do we explain these processes then? The main hypothesis of the present work is actually to identify at least one basic theoretical principle of law in this context and to justify it. Such a result, we believe,

387Hart 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. – 384 pp.

388Ibid.

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is achievable in the interdisciplinary analysis and development of the analogy of law and game, taking into account the modern, fundamentally different stage of development of the games, and as such, we propose to consider the claim of law to seriousness (which can complement the principles of internal morality of L. Fuller’s law and R. Alexy’s idea of the claim of law to correctness – see § 6.2 Chapter 3 of this research).

§ 5. Interdisciplinary concept of the “magic circle” in game studies

So far we have managed to assess the attempts to reconstruct the limits of law from the point of view of moral philosophy; to determine why the approaches of L. Fuller and H. Hart are incomplete under the conditions of the medial turn; to find out that the widely used notion of “absurdity”, clearly related to the semantic limits of law, has not yet been defined with sufficient clarity even in the “doctrine of absurdity”; to establish that theory of law as a rational discourse and deontic logic can help us to qualify certain formal kinds of absurdity (or, perhaps, nonsense), but in the case of “deep” semantic absurdity they can be useful only for stating and formally describing the problem. Each of the presented approaches, it is worth admitting, is not very suitable for the formation of a brief and scalable concept of the semantic limits of law in the conditions of a medial turn. For example, we still cannot justify the impossibility of interpreting Article 105 of the Criminal Code of the Russian Federation as applied to “murders” in computer games, and, on the contrary, we cannot justify the possibility of applying norms of real law to the turnover of virtual property for real money. Continuing to supplement the aesthetics of the scientific text with the language game of game studies, let us ask the following question: perhaps, if a research with a serious object does not help us, research with an unserious object – the games themselves – will help us?

The term “magic circle”, already mentioned in this study, is widely used in cultural studies, sociology, and the interdisciplinary field of game research. It means the supposed

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conditional boundary between the “space” of a game and “real life”. In the context of this paper, the concept of the magic circle can be considered, first, as a historically initial attempt to conceptualize the semantic limits of law in the context of the medial turn, and second, as an experience of interdisciplinary experience of such conceptualization, based, inter alia, on theoretical sociology. Of course, the theory of the magic circle (or studies in which the term is used exclusively as a conditional label, as it is traced, for example, in the works of J. Fairfield) is sufficiently developed by itself. At the same time, it focuses on only one area of social practices – games. This is probably why it is particularly vulnerable to criticism. The concept of the semantic limits of law, in this sense, can be considered as expanding the content of the concept of the magic circle and extending it to a wider space of social practices. The history of the use of this term in science based on the principle of metaphor can be traced back to the work of J. Huizinga “Homo Ludens” (1938).

In recent studies of the legal aspects of multiuser computer games and virtual worlds (specifically, in this case, we do not consider sociological and cultural concepts of the magic circle and the definition of its limits – the subject of jurisprudence differs from the subject of other social and humanitarian sciences, even if directly related to the interdisciplinary research methodology), several approaches to the definition of the boundaries of the magic circle have been outlined. We emphasize that they are consistent with interdisciplinary discourse in this area. The last research at the time of writing, which summarizes the problems of interpretation of the magic circle in relation to games, belongs to the Finnish researcher J. Stenros. In the article «In Defence of Magic Circle: The Social and Mental Boundaries of Play» (2012),389 after assessing the arguments of the critics of this concept (which we partially used to reconstruct the concepts of virtual reality as part of

389 Stenros J. In Defence of Magic Circle: The Social and Mental Boundaries of Play [Electronic resource] / Proceedings of DiGRA Nordic 2012 Conference: Local and Global – Games in Culture and Society // Digital Games Research Association. – [Site]. – URL: http://www.digra.org/wp-content/uploads/digital-library/12168.43543.pdf (accessed: 06.02.2019).

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the medial turn in § 5 of Chapter 1 of this study), gives three main modern approaches to determining the boundaries of the game and the gameplay:

First, it is a “psychological bubble” – a “protective frame” surrounding the player who is in a psychological state corresponding to the game process. It is about

«…personal, a phenomenological experience of safety in a playful (paratelic/autotelic) state of mind. If a person plays alone, she need not negotiate or metacommunicate with others (though usually she does signal play unconsciously). There is a ‘border’ around her experience, a frame that guides her interpretation of the situation. A player needs to feel safe in order to be playful, though it is not necessary to actually be safe».390

Second, it is actually the magic circle as a metaphor for a social contract that constitutes a game activity.

«The magic circle is the social contract that is created through implicit or explicit social negotiation and metacommunication in the act of playing (a game). This social contract can become societal as other social frameworks (law, economics) can recognize it. It is created when there is more then one person engaged in playful activity, though once established it is no longer necessary for everyone to constantly remain in a playful mindset. There is a connection between a playful mindset and play, but as a result of social negotiation and shared structuring of an encounter, it is possible to be in a telic mindset and still remain within the socially agreed borders. This applies to the playing of single player games as well: though they can be played alone, they are socially recognized as domains of special meaning, as games. However, if enough participants slip into a telic mindset, then it can be questioned whether what is contained within the borders remains play even if it is still a game».391

Finally, third, is the concept of the magic circle as an arena for the gameplay process, which is a “temporal or spatial ‘site’” that

«…is culturally recognized as a structure for playful action, or an inert ludic product (emphasis added – V.A.). As the social negotiation of a magic circle becomes culturally established and the border physically represented, arenas emerge as residue of the playing (the tennis court, April Fool’s Day, game products – emphasis added – V.A.). These sites are

390Ibid. P. 14.

391Ibid.

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recognized as structures that foster play even when empty (and they can be constructed in ways that seek to foster playfulness), but require use to be activated as the border of the magic circle remains social. As socially recognized they have severed the need to be engaged in with a playful mindset».392

Moving from game research to jurisprudence, we emphasize that these disciplines have different subjects. Furthermore, J. Stenros did not pretend to find a solution for law, although he noticed obvious parallels. However, despite this, it is quite obvious that there is a correspondence between known and emerging legal concepts of the magic circle and three cultural and sociological interpretations of this phenomenon. They are, accordingly, the following.

The first approach in law is “subjective”. It was directly suggested by B.T. Duranske in the book “Virtual Law. Navigating the Legal Landscape of Virtual Worlds” (2008).393 In this paper, the author, more a practicing lawyer than a representative of the theoretical direction in law, presented an attempt to predict the further development of “virtual law” as an area related to the application of general rules in the context of virtual space in the narrow sense of the word. The “magic circle test”, proposed by the author, is a procedural theory in the sense of American jurisprudence rather than an observation related to the ontology of law. Literally, this “test” sounds as follows:

«An activity that occurs in a virtual world is subject to real-world law if the user undertaking the activity reasonably understood, or should have reasonably understood, at the time of acting, that the act would have real-world implications».394

Note that, at the first approximation, such a test may seem to be quite a valid one. Moreover, we should welcome the author’s truly innovative approach to the popularization

392Ibid. PP. 14-15.

393See: Duranske B.T. Virtual Law. Navigating the Legal Landscape of Virtual Worlds. – Chicago, Illinois: ABA Publishing, American Bar Association. – 2008. – 461 p.

394Ibid. P. 75.

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of these problematics. At the same time, even though the subject of legal science and, moreover, practice, differs significantly from the subject of sociology and cultural studies, against the background of all discussions of the drawbacks of the concept of the magic circle within the framework of interdisciplinary discourse, the approach does not look very convincing. Paying tribute to the pioneering enthusiasm of B.T. Duranske, we note, of course, the uncertainty of the concept of “committing actions in the virtual world”. The author himself defines the concept of “virtual world” rather narrowly, correlating this term with the notion of a computer environment in which users interact with each other through virtual representations – avatars (there could be some difficulties in conjugating this word in Russian, taking into account the lack of well-established traditions of word use in the language in this case), which often assumes the constancy of user-generated content, as well as the current economic system.395 However, even with such a narrow use of the term, it is not clear what “user’s actions in the virtual world” are, if user, even at a very rough approximation, acts, in general, in the real world, and computer simulation, in fact, is also part of the real world. At the same time, however, B.T. Duranske’s approach has at least one indisputable advantage from the point of view of legal dogmatism – the author connects the boundaries of the magic circle (and hence the semantic limits of law) with two components: the consequences for the “real” world and the subjective side of the act – legal or illegal.

The second approach in law is “consensual”. Turning to this concept of the magic circle as a legal “test”, it should be noted that the notion of a broader meaning of the concept of “magic circle” has already been encountered in the legal literature. Thus, one of the prominent foreign researchers of legal aspects of virtual worlds, J. Fairfield, in his article “The Magic Circle”396 notes that «before evaluating the magic circle as a legal

395Ibid. P. 2.

396See: Fairfield J. The Magic Circle // Vanderbilt Journal of Entertainment & Technology Law. – 2009. – No. 1 (May). – PP. 823–840.