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Example No. 5 (Scenario C). Development of special legal norms aimed at regulating relations concerning the legal personality of “smart robots”. Unlike in previous cases, smart robots have not yet reached a stage where the question of their legal personality can be posed.522 Discussion of this is possible as some theoretical exercise,523 but in general, at a minimum, with regard to a general legal personality similar to that of natural persons, the development of such rules would be, in the ordinary language, premature and, in the language of the concept of the semantic limits of law, absurd.

The above method of reasoning is also applicable to other areas that are relevant to the current context of the digital economy,524 as well as other areas of social development.

Finally, speaking of the sixth group of examples, let us now turn to the two options that L. Fuller presented, since they, in a sense, indirectly served as a reason for the entire study. These examples are somewhat more difficult to analyze because they relate to the abstract legal interpretation presented by one of the parties to the imaginary dispute, but this aspect is also taken into account in the concept of the semantic limits of law.

Example No. 6 (Scenario A). “Justification” of murder by the reference to the victim’s afterlife.

«A man kills his father; in answer to a charge of murder he pleads that his father was a virtuous man with a firm belief in heaven; the taking of his life, therefore, dispatched him into an infinity of happiness such as he could never enjoy on earth; one who confers such a boon should be rewarded, not punished».525

522See e.g.: Robotics Regulation: Introduction to “Robolaw”. Legal Aspects of Robotics and Artificial Intelligence Technologies Development / V.V. Arkhipov [et al.]. Edited by A.V. Neznamov. – M.: Infotropics Media, 2018. – PP. 79–93.

523See e.g.: Arkhipov V.V., Naumov V.B. On Certain Issues of Theoretic Grounds for Development of Robotics Legislation: the Aspects of Will and Legal Personality // Zakon. 2017. No. 5. P. 157–170.

524An example of such an analysis in relation to the Internet of Things is given in the following publication: Arkhipov V.V., Naumov V.B. Pervasive Legal Problems of the Internet of Things and the Limits of Law: Russian Perspective // Proceedings of the Institute of State and Law of the Russian Academy of Sciences. – 2018. – V. 13. – No. 6. – PP. 94–123. This paper develops a general analysis of the legal issues of the Internet of Things, see: Arkhipov V.V., Naumov V.B., Pchelintsev G.A., Chirko, Ya.A. Open Concept of Regulation of the Internet of Things // Information Law. Moscow, 2016. No. 2. P. 18–25.

525Fuller 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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Grounds (arguments) to preserve the life and liberty (not to prosecute) of the accused, based on the value system (GSM) of the society. In order to define the subject matter, we formally define the closest legal norm using the legal method. In this example, the murderer makes a statement about the absence of a crime in his act and, on the contrary, claims that his act is [conditionally] lawful (and morally approved). A key legal question is whether such an argument can be used in legal reasoning. It is intuitively clear that there is no and that the argument is absurd, but it is necessary to rationally justify why it is so. The “socio-currency value” of a murderer’s argument is determined on the basis of the following GSM and ERV. GSM is a religious virtue (piety or sacredness in S. Abrutyn’s terminology). The ERV is a religious text (in the broad sense of the word; based on the context of Fuller's conservatism, we are talking about “averaged” Christian beliefs of the conservative part of the U.S.). The example may seem to imply a “reverse” and negative question: can law not be applied in establishing the “public value” (“sociocurrency value”) of the subject matter of relations from the point of view of a certain ERV and GSM?526 In fact, this is a positive question (from the point of view of formal logic, only a positive statement can be rationally substantiated): can a murderer use the ERV relating to the abovementioned GSM (piety) in such a way that the court can at least raise a question in principle (it is the fundamental possibility of applying legal norms, and not their specific application, that is the subject of our study at the level of philosophical and legal generalization!) about the presence of elements of the crime and circumstances that exclude the criminality of action.527 The court CANNOT raise such a question because the alleged ERV (religious text) of the murderer (1) is not “serious” (it is not related to GSM

526Usually the question is the opposite (whether law can be applied), and the positive answer to this question in the concept of semantic limits of law is determined by the presence of the GSM in the structure of the relationship.

527For example, according to Part 1 Article 41 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to the interests protected by criminal law at a reasonable risk in order to achieve a socially useful goal. The risk is recognized as justified if the specified purpose could not be achieved by actions (inaction) not related to the risk and the person who allowed the risk has taken sufficient measures to prevent harm to the protected criminal law interests. In an “absurd” interpretation, such or similar provisions could be referred to by the Fuller’s example killer.

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and cannot be converted) and (2) fantasy (functionally inadequate) to the central significance of the legal norm, since the murder in the religion alleged by L.L. Fuller is not “serious” (it is not related to GSM and cannot be converted) and (2) of fantasy nature (functionally inadequate) to the central significance of the legal norm, since the murder in the religion alleged by L.L. Fuller is certainly excluded, and cannot be considered a “socially beneficial goal: (there is no adequacy to the central value of the hypothetical norm of reasonable risk – the central value of the “socially beneficial goal” does not in itself include harm to the interests protected by criminal law, such as causing death).

Example No. 6 (Scenario B). “Justification” of the appropriation of public funds by means of the main thesis of utilitarian moral philosophy.

«An official embezzles a large sum from the state; he answers the charge against him by citing a preamble of the Constitution declaring that the state exists to promote the greatest happiness of the greatest number; the money he took made the defendant very happy; the resulting infinitesimal diminution in the wealth of every other citizen could not possibly produce a perceptible decrease in his happiness».528

Grounds (arguments) to preserve the life and liberty (not to prosecute) of the accused, based on the value system (GSM) of the society. In order to define the subject matter, we formally define the closest legal norm using the legal method. In this example, the accused makes a statement about the absence of a crime in his act and, on the contrary, claims that his act is [conditionally] lawful (and morally approved). The key legal question is whether such an argument can be used in legal argumentation. It is intuitively clear that there is no and that the argument is absurd, but it is necessary to rationally justify why it is so. The “socio-currency value” of the defendant’s reasoning is determined on the basis of the following GSM and ERV. GSM is a value commitment. ERV – authoritative (in the moral sense) texts of utilitarian philosophers. Similar to the above, but adjusted for

528 Ibid.

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alternative GSM and ERV, which, nevertheless, functionally belong to the same group. In this case, there is also no functional adequacy (and, as in the previous case, the “syntactic absurdity” is noticeable as well), and the lack of “socio-currency value” of the special object of relations, i.e. the argumentation (grounds) of the accused, is connected with this dialectically.

We believe that the above examples clearly demonstrate the efficiency, scalability and variability of the concept of the semantic limits of law. The structural scheme of the logic of the concept is given in Annex 1 to this study, the functional scheme of the analytical process of application of the concept – in Annex 2, and the table of conformity of expressions of legal dogmatics and concepts of the semantic limits of law – in Annex 3.

§ 6. Spin-off results: analogy of law and game, seriousness as a principle of morality of law, claim of law to seriousness

§ 6.1. Analogy of law and game in the history of legal thought and in the context of this research

One of the main accompanying (“spin-off”) results of this study is to refer to the analogy of law and game, which arises as quite expected branch of discussion, although in itself it does not contain fundamental solutions to the problem of the semantic limits of law. The main reasoning about such an analogy, based on a comparative analysis of game mechanics and legal norms using the methodology of social constructionism, was provided by the author earlier,529 here we will focus on a few special observations.

529 See: § 8. Rules of the game and of the law in the context of social constructionism // Media philosophy XII. Game or reality? Experience of computer games research (in Russian) / Under edition of V.V. Savchuk. - St. Petersburg: Fund for the Development of Conflictology, 2016. – PP. 135–149; Virtual worlds and multiplayer online role-playing games in legal theory and practice // Media philosophy X. Computer games: research strategies / Under edition of V.V. Savchuk. Publishing house: St. Petersburg Philosophical Society. St. Petersburg, 2014. – PP. 105–117; Arkhipov V.V. Game Rules as a Normative System,

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For the main purposes of the research, the general observation that something related to game is not always unserious, and the serious can sometimes be the something related to game, is of interesting contextual significance. Law is a typical example of a game that is not just serious, but deadly serious.530 From the point of view of the ontology of law, it is the provisionally-binding (imperative-attributive) nature of law that determines the game nature of objective law, since, at one point in time, the statement that there is a subjective right from only one side is deontically true, and this, in turn, means that there is a corresponding duty on the other side, – in this connection we can suggest the following, literally speaking, wordplay: objective law as a language game is a zero-sum game.531 It is necessary to note in this perhaps ironical (but, of course, in the good sense of this word) context another metaphor, now belonging to V.S. Nersesyants’ pen, about law as “the mathematics of freedom” based on the metaphorical similarity of formal equality in law and the abstract idea of equality in mathematical sciences,532 and avoid recalling in this context one of the main points to be defended as reflected in the candidates of sciences thesis by M.A. Milkin-Skopets, according to whom,

«...law can be interpreted in the terms of game. This allows applying the methods developed in the mathematical theory of games to the analysis of legal interactions. An adequate model is a model of a pair of interconnected games of two persons with strict competition».533

or What Do Law and Game Design Have in Common // Philosophical–Literary Journal Logos. Moscow, 2015. Vol. 25. No. 1 (103). P. 214–225.

530At least because some violations of the rules of the “game of law” have historically led and, in some jurisdictions, still lead to death (the death penalty). Such a contract itself makes it possible to characterize the aesthetic analogy under consideration as absurd, but the absurdity here is of a different kind – it is more of an existential than a semantic or logical one.

531We emphasize that this statement expresses, first of all, an ironic academic metaphor based on wordplay, because we do not dispute the fact that the term “game” by L. Wittgenstein and the term “game” in the mathematical game theory is used in different senses. However, in view of the general content of the research done, we do not want to miss the opportunity to note such “coincidence”.

532See e.g.: Nersesyants V.S. Law – Mathematics of Freedom. Past Experience and Prospects. – M.: Lawyer, 1996. –

160 p.

533The fourth position to be defended is in the next thesis: Milkin–Skopets M.A. The Principle of Reasonableness in Libertarian–Legal Discourse. Historical and Legal Research. Thesis for the Degree of Candidate of Legal Sciences / Institute of State and Law of the Russian Academy of Sciences. Moscow, 2010. It should be emphasized that in the main part of this

study the term “game” is mainly used in a different connotation, close not to mathematics, but to artistic creativity and imitation in general.

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This idea, obviously, echoes one of the logical components of the above model. This observation comes closer to the thesis of the concept of the semantic limits of law about the possibility of applying the theoretical commodification method to determine the convertible social-currency value of the subject of the relation (in the spirit close to the economic analysis of law).

As a result of this study, it turns out that “absurdity” – a term that denotes the essence of the phenomenon of the semantic limits of law – is most clearly manifested in the problem of the magic circle of the classical interpretation, which implies a collision of real law with virtual reality. At the same time, the most organic metaphorical model for explaining what is absurd in law is, in turn, the explanation of law itself as a game. Comparing law and games can go far enough (and it will be justified!), up to linking the law to the rules of the game in the narrow sense of the word or to the “comparative-game” analysis of the conceptual scheme of legal rules and the rules of the same board roleplaying games – this is the most adequate example since the reality of such role-playing games is expressed in oral and verbal communication.

Perhaps the way – not the fact that such an analogy is direct – ultimately leads us to a kind of “theory of law as a game”. In fact, there are no significant obstacles to the academic validity of such a metaphor in the social-humanitarian discourse. At its core, this approach has already been implemented, for example, in psychology – it is about the transactional psychology of E. Berne (for example, his book “The Games People Play”).534 As will be shown below, in both historical and contemporary worldviews, the “unserious” is not a necessary attribute of a game. Definition of games from mathematical theory of games, actually, is quite relevant academic definition. The game becomes serious or

534 See e.g.: Berne E. Games People Play: The Psychology of Human Relationships (in Russian). – M.: Exmo Publishing House, 2016. – 352 p.

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unserious not because of its nature, but depending on what the participants connect the result of such a game by agreement (autonomous communication) or by virtue of an indication of the institution (heterogeneous communication). Even in the positive law of the Russian Federation in force at the moment of writing this work there is one bright example – it is a definition of gambling, according to which gambling is not necessarily a specific game. It is a conventional term, which denotes the agreement of a certain kind between participants of a corresponding game, which, in turn, assumes simultaneously presence of a bet and a prize. However, even though some games may be serious (and the law, in this sense, is literally a deadly serious game, and often with high stakes), it follows that the game generally contains a potential seriousness and, as a result, may represent, at a minimum, a model of serious communication.

The analogy of law and the game is not exotic – it is found in both culturological (at least, J. Huizinga) and legal (at least, H. Hart, L. Fuller, A. Ross) studies. One of the most consistent classical examples of the analysis of the analogy of games in law philosophy is presented in Bernard S. Jackson’s work “Towards a Semiotic Model of the Games Analogy in Jurisprudence”.535

This study by B. Jackson draws heavily on the previously published work of British philosopher Mary Midgley (b. 1919), “The Game Game”.536 As M. Midgley notes,

«[s]ome time ago, an Innocent Bystander, after glancing through a copy of Mind, asked me, ‘Why do philosophers talk so much about Games? Do they play them a lot or something?’… Well, why do they? Broadly, because they are often discussing situations

where there are rules, but where we are not now sure why the rules have to be obeyed. Treating them as Rules of a Game fends off this problem for the time. And should it turn out that the reasons for playing games are in fact perfectly simple, it might even solve it

535Jackson B.S. Towards a semiotic model of the games analogy in Jurisprudence // Droit et société. – 1991. – No. 17-

18.– PP. 99 – 123. – doi: https://doi.org/10.3406/dreso.1991.1105.

536Midgley M. The Game Game // Philosophy. – 1974. – No. 189 (Jul., 1974). – PP. 231–253. – URL: https://www.jstor.org/stable/3750115 (accessed: 26 July 2018).

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completely. This hope shines through such discussions as Hare's on The Promising Game537, which suggested that our duty to keep promises was simply part of the Game or Institution of Promising, and if we decided not to play that game, the duty would vanish. That suggestion is the starting-point of this paper. It has made me ask, all right, what sort of need is the need to obey the rules of games? Why start? Why not cheat? What is the sanction? And again, how would things go if we decided tomorrow not to play the Promising Game, or the Marriage

Game or the Property Game? What is gained by calling them games? What, in fact, is a Game?»538

Despite the fact that M. Midgley is a philosopher of morality and not a philosopher of law, it is not difficult to notice a significant similarity between the questions she posed and the problem of the semantic limits of law that we conceptualize. Attention to this approach may prove to be methodologically useful, including in the light of the discussion on the relationship between law and morality, since the proposed view is on the other side

– morality rather than law, while lawyers often use the term “morality” in such discussions in a very vague manner.

By the way, the ironic epigraph that M. Midgley put at the beginning of this publication is very characteristic in the context of this study – the following words by B. Shankly, manager of the Liverpool football club:

«Some people talk about football as if it were life or death itself, but it is much more serious (emphasis added – V.A.)».539

Returning directly to the views of M. Midgley, we note that the philosopher’s reasoning is based on many things, based on the moral foundations of promises. In the light of Fuller’s ideas about law, this aspect of morality certainly lies at the heart of law as a purposeful collective activity.

537See: Hare R.M. The Promising Game // Revue Internationale de Philosophie. – 1964. – Vol. 18. – No. 70(4). – PP. 398–412. – URL: https://www.jstor.org/stable/23940466 (accessed: 26 July 2018).

538Midgley M. The Game Game. – P. 231.

539Ibid.

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M. Midgley’s reasoning is based on a rethinking of Wittgenstein’s ideas about [language] games. Further it results rather interesting quote of the Australian philosopher of a morality of the Hungarian origin Julius Kovesi:

«I do not see any foundation for a claim that we call both football and chess ‘games’ because football is played with a ball, and so is tennis, while tennis is played by two people, and so is chess. Not only is this insufficient to explain that connection between football and chess which makes both of them games, but this way we could connect everything to everything else. We could turn off at a tangent at every similarity and what we would get in the end would not be a rope but a mesh.540 Balls, cannonballs, were used to bombard cities, and duelling is a matter for two people. What we need in order to understand the notion of a game

or the notion of murder is what I call the formal element. This is what enables us to follow a rule».541

At the same time, the games that gave rise to such an analogy – be it children’s games, chess or sports team games – are by no means the only example of games in human society. One of the objectives of this study, without the solving of which it is impossible to achieve its goal, is to develop a tradition of drawing an analogy between law and games, but to take into account a fundamentally new stage in the development of the games as such, and to take into account those games that the previous researchers simply could not take into account, since they were not available to them. As we shall see, these games, even in some isolation from the jurisprudence itself, have developed a kind of legal theory of their own, centered around the notion of the magic circle. At the same time, the key difference between modern computer games and their early non-digital prototypes, especially in the light of this study, is that some of the rules of the game are fixed at the level of program code, which is essential for the context of the discussion of the code as law.542

540This probably implies an analogy of L. Wittgenstein about “family resemblance”, which is based on a thread (rope).

541See: J. Kovesi. Moral Notions. – New York: Humanities P. – 1967. – P. 22. Cited by: Midgley M. The Game Game. – P. 233.

542Which Lawrence Lessig has developed and continues to develop.

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When considering the context of games and law, one cannot but pay attention to the mathematical theory of games, because the method of analytical jurisprudence involves the analysis of the meanings of words that are related to each other in a semantic relationship. Undoubtedly, language games, computer games and game theory imply a similar kindred semantic connection. Turning to the mathematical theory of games, M. Midgley notes:

«I do not want here to pursue the question about the basis of promising, so much as to investigate the notion of Games as a Closed System. This, I suggested, means that they are discontinuous with the life around them. That seems to be how the term is used in mathematics; the Theory of Games deals with a certain set of closed systems. In this use, no question arises about the reasons or motives for playing; there is no suggestion of playfulness or jollity in the ordinary sense. But when you bring the term into moral philosophy and apply it to people’s actual activities, the reasons and motives begin to matter. Any actual activity has motives, and it won’t be a closed system, optional and removable, unless the motives are of a special kind. They must not be very strong, or it will begin to matter whether we play or not; they must not be very specific, or it will begin to matter which game we play».543

It should be noted that the model of mathematical game theory, which implies the presence of parties fighting for the realization of their interests, which is consonant with the notion of law as a language game with zero sum, conceptually overlaps with the logic of R. von Ihering’s ideas about the struggle for law.

Danish law philosopher Alf Ross (1899 - 1979) is undoubtedly one of the first known lawyers of the postclassical stage of development of legal science, in the works of which the metaphor of the game, applicable to law, has found a truly consistent reflection. In the book “On Law and Justice”,544 first published in English language in 1959 (in Danish language the book was published in 1953) – two years before the publication of “The Concept of Law” by H. Hart – the author cites the allegory of two chess players and an observer.

543Midgley M. The Game Game. – P. 236.

544Ross A. On Law and Justice (1959). – Clark, New Jersey: The Lawbook Exchange, Ltd., 2004. – 383 p.