Law of Digital Society: Actual Problems and the Way of Development (the Ending)

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Rethinking the subject–object opposition and the emergence of new law subjects

The existence of law, as a behavior regulator, is associated with the fundamental spontaneity and non-determination of the latter by external factors that arise from such metaphysical characteristics of human beings as freedom and autonomy of will [1], which distinguishes the legally relevant behavior of people from the activities of other legal communication participants, including organizations and public legal entities. However, the tendencies toward depersonalization have also affected the behavior of individuals in the digital era, inducing the idea in some scholars that setting this behavior through a limited set of algorithms, including those formed by means of computer programs, is fundamentally possible.

Several steps have been taken in this direction recently. One is the so-called smart contracts¹, which are computer programs used to conclude and execute contracts in a digital environment [2, p. 184]. Currently, such contracts are quite actively used in the financial sphere; for example, for crediting cash or other funds to a special escrow account [3–5]. The prevalence of these relations can be judged at least by the fact that escrow account contracts are normatively enshrined in Article 860.7 of the Civil Code of the Russian Federation.

First, an escrow account is, regardless of the realities typical for property turnover digitalization, a sufficiently flexible and effective means of regulating binding relations, combining elements of trust management of property (Article 1012 of the Civil Code) and independent guarantee (Article 368 of the Civil Code). Second, under the digital transformation conditions, escrow acquires new properties that allow accumulating not only real money but also digital assets, which, in our opinion, can contribute to the virtualization of financial turnover, extending the laws of symbolic exchange to it studied by Baudrillard [6, p. 73–79].

The technological characteristics of smart contracts, that is, the algorithmization of actions committed by the parties in their execution, have enabled some researchers to argue that such contracts are inherent to “self-execution”, which allows minimizing or excluding the volitional moment from the dynamics of the relevant contractual relationship [7, p. 11]. Hence, this concludes that the development of the smart contract system in various economic activity areas over time will mean a radical contract law transformation. Thus, according to Saveliev , “In a ‘smart’ contract, the will of the parties is expressed once: at the time of its conclusion. Subsequently, the computer program will execute all the programmed conditions of such a contract. No actions are taken to execute the contract, and no additional dispositive transactions are required from the parties to the contract. That is, the disappearance of the ‘obligation’ concept in the sense, as it is understood since the times of the Roman law” [8, p. 48].

Such conclusions evidently represent a peculiar variation of technocratic postmodernist illusions about “subject death,” the validity of which is dubious. Forming a new legal reality creates preconditions for the emergence of qualitatively new actual life situations and relations, which do not fit into the existing picture and condition of its semantic, ontological, and epistemological uncertainty [9, p. 33]. Not only cognition but also the commitment to legally significant actions (realization of subjective rights, performance of duties, compliance with prohibitions, and implementation of powers) in a situation of uncertainty is a process of active social creativity, generally excluding the automatic behavior of subjects.

Among other things, the uncertainty of the legal picture of the world, which requires nonstandard solutions, is associated with the repeatedly stated fading of the basic categories and dichotomies, such as the binary opposition of subjects and objects, actions and things, material and nonmaterial factors, property and non-property factors, on which the legal reality of the modern era is based. Furthermore, we must consider the relativity and contextual conditionality of such oppositions in cultural and historical terms.

Therefore, the opposition of a person and thing, which is logically associated with the binary opposition of subjects and objects of rights, received its final recognition and legislative consolidation only in the modern era, under the influence of enlightenment philosophy, which affirms the idea of self-value and autonomy of human beings. This notion was expressed by Locke and later by Kant in his proposed formulation of the categorical imperative, stating the following: “....act so that you would always treat humanity in your person and in the person of another only as a goal and would never treat it as a means” [10, p. 270]. For most legal orders from the past, this idea was not characteristic. Even in such a highly developed legal order as the Roman private law, a clear distinction between people and things was often absent, which necessarily followed from the cultural, socioeconomic, and political characteristics of the ancient society in ancient Rome.

This situation did not mean that people subject to the relevant legal order were not conscious of themselves as subjects or people but believed that they were things. On the contrary, every human being, irrespective of how early they are in their development of the culture to which they belong , is aware of themselves as a person, thereby being a subject of the relevant interactions taking shape in the sphere of the world of life [11]. However, this inherent subjectivity of every individual, including the existential freedom necessarily associated with it, was insurmountable contradicted owing to the social freedom that the legal order provided them, which, in turn, resulted in acute social and legal conflicts (up to and including active clashes) that undermined the stability of any traditional society and state.

In the Roman private law, different technical (particularly, linguistic) tricks were used, essential to make the slave status legally irreversible [12, p. 141]. The most widespread of such techniques was equating enslavement to death [13, p. 270] that took a person out of legal communication as a person and concentrated all his properties in pure physical body, which transformed the person of a slave into a thing. The only difference is that according to the general rule, the slave status was invariable (to endow a slave with legal personality, an expression of will of the master was required that was formalized in the procedure of manumission), whereas subordinate children automatically became legal people by the death of their lord.

In the digital era, the discoveries in the technological sphere, including the creation of artificial intelligence (AI), enabled the latter to participate in several social relations, thereby stimulating discussions among lawyers about the legal personality of cybernetic organisms [15 ; 16; 17, p. 367]. Thus, several authors highlight the features of AI (e.g., autonomy, substantive property, and spontaneous behavior based on information processing), allowing to consider it a special subject of law and, most importantly, its legal capacity. The latter circumstance allows us to interrogate the possibility of legal responsibility of AI.

According to the approach adopted in the current legislation and legal doctrine, the latter represents databases, that is, objects of rights. Hence, according to Article 1334 of the Civil Code of the Russian Federation, databases are the objects of the exclusive rights of their creators, which rights’ creators of databases can dispose of at their discretion and in their interests. Thus, the legal approach is that databases, including digital databases similar to AI, do not possess the volitional properties necessary and sufficient to endow them with legal personality, especially the ability to bear legal responsibility. Revising this position entails a radical transformation of not only the nature of consciousness and will but also the world of things and other objects of rights.

In diachronic retrospect, such transformation is not unique: each time a modification of the established legal reality picture is stimulated, the legal order transitions to a new stage of evolutionary development. In the Roman private law, where slaves, devoid of legal capacity in theory, were incapable of serving as subjects of legal responsibility; recognizing their ability to answer for their master’s obligations, as part of a complex set of other conditions, became one of the factors under the influence of which the transformation of classical antique slavery and the transition from antiquity to feudalism in the early European Middle Ages (3^rd–4^th centuries) occurred. Andersen thoroughly discussed this example in his classic study [18, c. 77–80]². Meanwhile, imposing the obligation on lords to bear the subsidiary responsibility for their slaves [19, p. 120–121] contributed to the recognition (within certain limits) of the formal legal equality of slaves and lords as legal communication participants. According to the well-known opinion of Nersesyants, this imposition served as an important stimulus to progress in the expansion of the circle of individuals covered by law as a universal scale and equal measure of freedom [20, p. 15].

Currently, this rethinking is occurring under the influence of digitalization, which has particularly entailed the loss by numerous things that are integral to the everyday life of the corporeality attribute and several functions associated with it [21, p. 36]. French philosopher Baudrillard astutely noted this incident at the dawn of the digital age, according to whom, “Present-day things have finally become crystal transparent in their functional purpose. Thus, they are free as the object of this or that function, that is, they have the freedom to function and (in the case of serial things) virtually no other freedom” [22, p. 21–22].

Naturally, things, losing their object essence and moving into digital space, acquire the ability to communicate with anonymous subjects, transforming into sets of signs, thereby becoming objects themselves. A coherent field of sign exchange is emerging, as evidenced by the so-called Internet of Things (IoT), which is the most striking sign of postmodern social reality [23]. The essence of this phenomenon is the possibility of creating “smart things” (becoming necessary components of production and everyday life), which not only can communicate with humans but can also interact with one another while performing several operations, such as manufacturing technologically complex objects and performing high-precision measurements.

That is, IoT can be described with a certain degree of conditionality as the sphere of object communication made possible by connecting neural circuits with electronic networks, inside which smart things “live”. McLuhan exploring the possibility of such synthetic formations was no coincidence; in them, he saw nothing less than an expansion of the human nervous system to a universal scale [24, p. 5]. According to some authors, such evidence contributes in eliminating human actions that, on the one hand, requires special accuracy and technological precision, and on the other hand, has a rather routine nature in the conditions of the modern digital economy [25].

The creation of IoT, being an organic result of developing the postindustrial information society, undoubtedly actualizes the ontological essence of a man as an existentially free individual in the social communication system, thereby helping to overcome the effect of alienation in which Marx reasonably saw the main trap of industrial civilization [26, p. 96–97]. Consequently, the digitalization of the economy becomes a new stage of its evolution, the main pattern of which is the involvement of an increasing number of things in the sphere of the man’s intellectual and physical capabilities, contributing to the further universalization of human subjectivity in his economic activities, about which Bulgakov wrote unambiguously, despite the content obscurity generally inherent in Russian religious and philosophical thoughts regarding a completely different problem [27, p. 144–146].

At the same time, excluding human beings with their feelings, thoughts, and desires from the production sphere can create prerequisites for the dehumanization of the latter, where artificial minds and digital algorithms, capable of creating material and nonmaterial goods without mediation (and, therefore, without considering crucial needs) of human beings as their final recipients and the only possible consumers, will now reign. Consequently, the preconditions for the antagonism of the existential human essence and the technogenic digital environment are created; that is, the alienated reality where the game of external forces is played and the freedom of individuals’ being are at stake.

The ultimate expression of antagonism can lead to dictatorship of technology, more complex and perfect than those industrial automata; under its dominance, the threat to human personality was witnessed by Wells, Zamyatin, Huxley, Orwell, and other authors of the dystopias of the past century. Therefore, in the postmodern age, at a new stage of evolutionary development, the same socioanthropological conflicts that characterized the industrial age are reproduced, naturally in a completely different quality, when, according to Spiridonov, “society as a system of material relations opposed itself to humanity to an even greater extent than before. The contradiction between the concrete life activity of people and the abstract social form of its implementation has aggravated to the utmost. Man, having achieved unprecedented successes in the struggle with nature, at the same time turned out to be alienated from it, because nature is private property” [28, p. 136–137].

The mistake by Spiridonov, who, by virtue of time conditions, followed a peculiarly reinterpreted Marxist tradition, was to attempt to associate the alienation of an individual with relations of private property. Meanwhile, the latter, as an inalienable attribute of the subject’s life world, acts as a part of the material reality that they consider “their own,” the natural continuation of the individual, the guarantee of personal freedom, contrasted with undeveloped nature as “alien”, where the individual, losing his human qualities, appears as a thing to themselves. In the digital age, the dematerialization of things that forms the object basis of property rights and their symbolic references leads to the disintegration of the established structural subject–object relations and thus, to the dehumanization of the very individual.

Accordingly, we suppose that the postindustrial epoch, in many respects, is inherent in tendencies where Marxists endow communist formation as a logically and historically realized notion of the communalization of any private property and, consequently, the human personality abolition [29, p. 43; 30, p. 398; 31, pp. 308-312; 32, p. 20]. At first glance, this situation indicates the validity of alarmist concepts whose proponents predict the growth of entropy as a natural result, leading to a kind of “heat death” of the social and legal universe, in accordance with the second principle of thermodynamics [33], refracted via the prism of evolutionary laws. However, such assertions seem hardly true, given the invariable presence of the human element in culture, which provides necessary private properties and other institutions with an infinite capacity for self-development. The latter ensures the evolutionary dynamics of society, the rule of law, and the state, bringing the prospect of the “end of history” [34] and the triumph of impersonal technogenic structures beyond the bounds of serious scientific discussions.

Sign means of metamorphosis construction for legal reality at the current stage of semiotic system evolution

Certainly, the problem of sign communication is important in the conditions of digital transformation, the solution of which addresses the prospects of legal development in the postmodern society, among other things. As a field of communicative interactions, social and legal reality at every stage of evolution is constructed by sign means of communication; its transformation can be the key driving force of the evolution of society, law, and state in the postmodern age. Consequently, the modifications of the subject–object dimension of law and order previously discussed are due to the situation emerging in the sphere of sign communication, which not only provides opportunities for information exchange to social action participants but also constructs reality within which they have to act and interact, ensuring the coherence of social space and law and order as its integral component.

As Weber demonstrated, the interactions that form the social space structure have a semantic character, being relevantly oriented to the other and assuming, in turn, its meaningful response [35, p. 83]. According to the scholar, not every mass action is social in the strict meaning of this concept. For instance, if many people, walking down the street, simultaneously open their umbrellas in the rain, then this behavior, with all its mass character, cannot be considered social owing to the lack the semantic correlation of actions by each participant [36, p. 362]. Thus, social actions taken by individuals, by virtue of their semantic relevance and mutual correlation, are always acts of communication, representing the mutual exchange of social communication meanings as well as the transfer of known information; its fixation needs certain sign-symbolic means, and its development in historical retrospect is a vital aspect of the law-and-order evolution.

In our opinion, this semantic dimension is present in the structure of any signs that signify objects of reality (denotata) and simultaneously construct these objects according to various cultural relevancies, manifested in the sign structure described with the help of Ogden and Richards’ semiotic triangle [37, S. 25–50; 38]. Although several semioticians see a simple relation of external acoustic expression (signifier) and a mental image (signified) in a sign, defending the two-element concept of a sign [39, p. 69; 40, p. 62], we consider the three-element model productive, including in semiotic structure, along with the signifier and the signified, communicative relevance (sense) of signs that defines ways of its pragmatic use in dialogue. The indicated aspect of the sign structure determines the diversity of lexicons, providing contextual use of these or those signs, in occasional meanings that are different from the basic, dictionary meanings. According to Eco, “while the original denotative meanings are established by the code, the consciousnesses depend on the secondary codes, which are inherent not in all, but in some part of the speakers” [40, p. 71].

The pragmatic meanings of any signs, unlike their semantics and syntax, are determined not only by the internal logic of the structural organization of the sign system or the specific feature of a communicative situation but also by the general sociohistorical and cultural patterns of human communication evolution, constructing social and legal space. This is evidenced by the fact that at certain stages of evolution, even these abstract signs as mathematical numbers (or precisely, the numbers denoting them) were filled with subject content, contributing to their co-recognition of the basic concepts inherent in this or that culture.

Professor Menninger revealed that numerous past religious cultures (e.g., Biblical, Christian, and Hindu) had a deep conviction that “people or things, the sum of the letters in their names are the same, are mystically connected to each other. In the Middle Ages, for example, people ‘calculated’ what would be the result of a duel by adding up the letters in the opponents’ names; it was believed that the one with the greater sum would win…” “The ‘assignment of numbers to letters’ and ‘assignment of letters to numbers’ belonged to the art of isopsefia… and people treated it seriously” [41, p. 327–328]. Argentinean writer Borges provided illustrative, although in many aspects — ironic, descriptions of such language games in his story “Funes, The Miracle of Memory”; the main character, Irineo Funes, created and tried to implement the project of replacing numbers with words corresponding to one of the natural numbers in the subject sense [42, p. 365].

As expected, the result was deplorable for any numbers, not to mention their infinity in the series, and presented zero sign referents, not referring to any objects of material reality. Only for the most primitive mind, which is accustomed to see only concrete facts and to relate them to one another in a direct or associatively related way, a number directly refers to one or more objects to be computed. Every word has as its signifier, a class of phenomena or objects which, however abstract, cannot be separated from the empirical reality of which these objects or phenomena are necessary parts.

Therefore, in mathematicians’ language, the power of the set of natural numbers — not to mention the sets of real and complex numbers — knowingly exceeds the power of lexical composition of all languages on Earth, despite the fact that some linguists attribute to natural languages’ unlimited combinations of forming word, that is, sign and sense formation [43]. Moreover, according to the proof of Euclid’s famous prime number theorem, the set of natural numbers and each of its subsets are infinite, especially the set of prime numbers. The same holds for other sets of number, including the set of complex numbers, which are not only infinite but also include infinite subsets (e.g., the subset of quaternions).

Any subset included in the set of all mathematical numbers is equivalent to the latter, and the total (Kolmogorovian) complexity of mathematical sets exceeds the total complexity of linguistic sets [44, pp. 24–40]. This assertion is explained by the fact that the operation of union (summation) is possible over infinite mathematical sets whereas the only possible operations on lexical units in the natural languages of different compositions are their inclusion and intersection.

In our opinion, this argument serves as a sufficiently strong refutation of the hypothesis of Sapir and Worf about the relativity of linguistic pictures of the world [45, p. 242–243; 46, p. 162]³. That is, the universal metalanguage of mathematics is more adapted to overcoming informational entropy, which is an inevitable consequence of the diversity of semiotic means, than natural languages, which use similar semiotic means to denote the same subject referents owing to their limited cognitive and constitutive capabilities. Hence, unlike the universal language of mathematics, which has quantitatively inexhaustible sign means (letters of the alphabet and their various combinations) necessary for constructing any kinds of reality and any subject spaces [47, p. 10], natural and other cultural languages use a limited set of sign constructions.

This case implies the standardization and interchangeability of the latter in various cultural contexts. In addition, this circumstance allows us to challenge the claims that all elements of culture (including rights as one of the most important in practical terms spheres of cultural existence) are completely relative and contextually determined. Therefore, we cannot agree with the view that the category of rights and freedom is not universal, supported by the reference to the fact that the word “freedom” is excluded from the lexical composition of several languages. In languages where the word is present, it has nonidentical semantics. This view means that legal orders are imposed in which no subjective rights exist, only duties and prohibitions, a scenario that is hardly imaginable. Undoubtedly, the concept sphere of different natural languages, and consequently, the cultures associated with them [48; 49, p. 250; 50, p. 75], at every stage of the historical evolution of the latter, include a diverse complex of concepts specific to the corresponding culture, at the moment having no analogues in other languages [51].

Simultaneously, sufficient grounds to argue can be expressed. First, the specificity of the use of linguistic and cultural signs in a particular community of speakers is not absolute, it is only relative [52, p. 5]⁴, given the active processes of cultural exchange and borrowing, especially manifested clearly in the conceptual sphere. For instance, special legal terms, such as sinallagma (Greek σύναλλαγµη, reciprocity, reciprocity), restitution (Latin restitutio, restoration), astrente (French astrente, monetary penalty, fine), and offer (English offer), are used in the current Russian legislation and legal doctrine. Second, the semantic core of most cultures that includes the basic cultural concepts, which substantially determine the behavior of bearers of corresponding cultures, has an identical nature generally, which is independent of differences in historical and social conditions. In special spheres, such as legal communication, the borrowing of concepts is influenced not only by the situation of bilingualism, which is a universal prerequisite for lexical borrowing according to researchers [53, p. 61] but also by the general needs of communication. In our opinion, these factors ensure the perception of the foreign lexicon to regulate the relations mastered by legal orders, which had previously reached high-level historical development already (the same Roman private law, whose lexical–semantic composition was actively borrowed by societies, had no close cultural contacts with the Latin civilization of ancient Rome).

Furthermore, the essence of cultural progress (one of the natural manifestations of which is the evolution of law) is precisely involved in the expansion of the pragmatic sphere of using cultural universals, determining the universalization of sign communication. One of the factors in this process is the increasingly active digital transformation of communicative interactions, which contribute to a certain modification of the sign means in social and legal communication. That is, the result of such transformation is equally predetermined by the evolution of the sign means of natural language and development of mathematical symbols, thereby achieving the ability to construct increasingly complex and object-unreferenced phenomena of reality at each new stage.

This circumstance was noted by Spengler, who erroneously associated the historical and stadial dynamics of mathematical construction of reality with the civilizational features of culture [54, p. 88 and the next pages]. Meanwhile, in any civilizations standing on the same stage of evolutionary development, mathematical cognition goes through the same stages, characterized by the abstraction of signs (i.e., numbers) from their subject content that allows the use of the said signs for mastering new spheres of reality construction. The inevitable result of the progress in such a construction is the possibility of using mathematical signs to construct natural and social and even cultural phenomena, which, in turn, lead to the digital transformation of the latter.

One of the consequences of this situation is the change in legal texts whose specific feature has always been the desire to describe in the most complete and exhaustive way all legally relevant variants of behavior [55] of the recipients of legal performatives [56]. In our opinion, this feature is due to the task of minimizing information entropy, which is especially important in terms of legal reality construction [57, p. 25–27]. Concurrently, the attempt to minimize the uncertainty inherent in the legal behavior of individuals paradoxically complicates the perception of legal texts by addressees, coming into conflict with the objectives of legal regulation. This contradiction can be resolved through different projects involving the development of a universal legal language and the mathematization of legal signs, the realization of which has been made possible by the digitalization of all spheres of social life, including legal reality.

Thus, the fundamental possibility of interchanging letters with numbers and, consequently, the pragmatic use of these signs in the same cultural contexts, are the results of the evolution of sign construction, which has made the situation of digital transformation of languages inevitable and thus of cultural and social realities, which humanity is facing at its current stage of development. Several researchers have claimed that in the cyberspace, the normative regulation of legal communication being replaced by the algorithmization of the latter, conducted with the help of information codes and other semiotic means that had no analogues in previous eras, is no coincidence [58].

Crisis of trust and its solution as the key problems in the digital age

The digitalization of the rule of law not only reveals the potential opportunities for its further evolutionary development but also gives rise to new challenges, whose overcoming has become particularly relevant at the current stage. Among these, challenges is central to the delegitimization of the rule of law owing to the aforementioned loss of legal communication of its inherent formal (and substantive) certainty as a result of the introduction of sign-symbolic means in the digital environment. The sign of formal certainty, which means simplicity, clarity, and accuracy of applied norms [59, p. 51–52], is considered one of the most important characteristics of law as a normative formation by theorists, reflecting its essential properties in the law and order of industrial society.

In a situation where legal relations become complex, the totality of which covers almost all spheres of social reality (and the latter themselves have become diverse)⁵, the causal regulation used in relatively simple agrarian communities has exhibited its insufficient effectiveness. According to a widespread opinion, under the conditions of the modern legal order, a response to changing social conditions in the legal sphere is the emergence of new means of sign communication, namely, generally meaningful legal norms with inherent characteristics, including the property of formal certainty, owing to such features of normative regulation as universality of action and consistency, that is, logical interconnectedness of all components.

These properties act as necessary attributes of lawmaking activities of the state, namely, the techniques and means used to give external expressions to the contents of legal prescriptions [61, p. 144; 62, p. 267–268; 63, p. 213, 64; 65, p. 57]. Lawyers of the modern era, who followed the accepted rationalist paradigm, on the one hand, saw a necessary requirement for legal communication in the formal certainty of rules. Therefore, according to Pokrovsky, “The individual, brought face to face with society, the state, has the right to demand that the latter indicates precisely what it wants from him and what bounds are placed upon him. Logically, this right to the certainty of legal norms is one of the most inalienable rights of the human person imaginable; without it, in essence, there can be no ‘right’ at all” [66, p. 89].

On the other hand, the main (if not the only) prerequisite of formal certainty and therefore, the effectiveness of legal regulation was seen in the refinement and means of legal techniques. Agreeing in general with the aforementioned judgments, we must, however, make an important reservation that in the condition of uncertainty accompanying the abrupt transition of sociocultural (including legal) reality to a new stage of evolutionary development, when even the means of communication themselves undergo a radical transformation, no formal certainty of normative regulation is often not a concern. Moreover, a remarkable feature of the postmodern legal order is that not only generalized judgments (e.g., legal norms) but also subjective rights (i.e., specific deontological statements of factual circumstances) are subject to relativization. Its far-reaching consequence is the loss of formal certainty not only of subjective rights themselves but also of actions to exercise relevant rights, including the fulfillment of obligations and compliance with prohibitions.

Note that in a “normal” situation, which characterizes any legal order, formal certainty, that is, typification, is a key feature of any legally relevant actions that ensure a similar behavior of different subjects of rights in identical actual situations. The typification of legal behavior is one of the indicators of progress in the sphere of legal communication. As fairly noted by Chegovadze, “the actions of individuals and legal entities … is no longer a simple reality, but a factual component of quite specific processes. And for the purposes of formal qualification of the act the legal essence of what is happening must be typified, i.e., conceptually defined and expressed. Consequently, civil-law regulation should be based on the formal definition of actions of civil-law significance and normative definition of features inherent in each of their types” [67, p. 83].

Such a scheme (applicable to civil and other branches of law) works in a stable legal order, where existing legal relations, including rights and obligations of their participants, are characterized by stability, which ensures the typicality of subjects’ actions on the realization of subjective rights, performance of duties, and compliance with prohibitions. Each action by the participants can be predicted and reproduced approximately in a similar way. However, the situation changes at bifurcation points. When the social order undergoes a kind of “recursive self-transformation,” its essence is involved in a radical reconstruction of the social organism, the emergence of fundamentally new, unparalleled, actual situations and interactions. The stability of subjective rights and obligations turns out to be extremely problematic, including the effectiveness of legal and technical techniques, which helps in ensuring the formal certainty of the means of constructing a legal order.

All of the above compels us to consider a deep, psychological prerequisite for the formal certainty of law, which is the mutual trust of legal communication subjects that legitimizes the rule of law as such. We see that the digital transformation of postmodern society is characterized by a crisis of trust, which requires new means of legitimizing the law, based on which the rule of law can be reconstructed. One of the most important reasons for this crisis, in our opinion, is the depersonalization of most legal actors (primarily, the state), generating doubts in other actors about the reality of the latter.

We believe that in practice, the crisis of legitimation and the loss of mutual trust by the subjects of legal communication manifest itself at all levels of legal reality construction. However, above all, it undermines the stability of subjective rights that form the basic (first-order) level of legal reality. We are talking about the fundamental rights and freedom of citizens, enshrined in the Constitution. Their delegitimization appears to be facilitated, among other things, by the “postmodernist” ideology that asserts the nonuniversal nature of fundamental human and civil rights and freedom and their dependence on sociohistorical and civilizational contexts.

According to Article 2 of the Constitution of the Russian Federation, the supreme values of the rule-of-law state are individuals, their rights, and freedom⁶. As early as the 18^th century (in the works of Locke, Montesquieu, and other European thinkers), the concept of fundamental rights and freedom, which have a natural inalienable nature and belong to man since birth, was developed. In the 1990s, this concept was taken up by Russian lawyers and the constitutional legislation. The organization system of public power, namely, the separation of powers, the system of checks and balances, and the independence of judges, also serves to create the conditions for the implementation and protection of fundamental human and civil rights and freedom.

Postmodern ideology implies rejecting the idea of inalienable natural rights of individuals (given that everything natural is regarded as various social and cultural rights) and proclaiming the prioritization of group and social rights. Consequently, the nature of public power and the state system are being transformed. In particular, we are pertaining to the separation, mostly doctrinal, of “atypical” branches of power, which includes the president, prosecutor’s office, and other control and supervisory bodies of the state power [68].

A characteristic feature of the “new reality” is a qualitative transformation of the legal order and political system, the emergence of new areas of regulations and relations that have no analogues in the modern society. That is, the digitalization of most spheres of society (e.g., economic, political, and legal) and the introduction of virtual objects as necessary components of everyday life. Under the influence of the aforementioned factors, social interactions encompass an increasing range of subjects, and the relations that previously required direct participation (e.g., labor relations and civil contracts) are now transferred to the virtual sphere. Simultaneously, interpersonal contacts, which used to be the foundation of social order, are disintegrating. Interactions, including political and legal, are becoming impersonal, thereby creating uncertainty owing to the lack of feedback from social communication subjects. The legal and political consequences of the “new reality” are increasing instability, permanent emergencies in which deviant behavior becomes widespread, threatening the survival of society [69].

In the middle of the last century, after two world wars, a kind of ideological consensus emerged that aimed to prevent the possibility of reviving totalitarian dictatorships that had led humanity to catastrophe. The essence of this consensus was the recognition of the subjectivity of individuals and the state. In the legal documents adopted after World War II (primarily the 1948 Universal Declaration of Human Rights and a number of international legal acts adopted on its basis), individuals were viewed not as members of communities, but as autonomous individuals with free will, independence, and inalienable rights⁷.

In turn, the state, as a structure of political power possessing the properties of subjectivity, including legal personality, interacted with individuals as a political and legal communication participant. Their mutual responsibility was based on the recognition of the subjectivity of individuals and the state. The transformation of social ties and the depersonalization of these subjects in the postmodern era led to their alienation and deficit of mutual trust. Therefore, the task (including scientific cognition) is to revive trust on a new basis and to establish a dialogue between the state and individuals.

The digitalization of the means of sign communication in the information society offers new prospects for achieving consensus and creating effective decision-making mechanisms based on the consideration of opinions and respect for the rights of each of the subjects. The imperfection of the ways of forming and expressing the will of individuals within collective entities (be it a private community, a legal entity, a municipality, or the state) has been a complex and difficult problem for political and legal systems from antiquity to the modern era. This problem has been the focus of attention of political philosophers of the past and modern authors, such as Habermas [70, S. 367–453].

The development of the digital means of communication, the advantages and disadvantages of which have been especially apparent in the conditions of the Sars-CoV-2 pandemic, contributes to the development of new ways and forms of legal communication, involving an even wider range of subjects. The emergence of e-democratic institutions and the digitalization of interactions (contractual, judicial) in the realm of private law, on the one hand, allow to involve in the sphere of decision making every member of society who can express his or her will clearly. On the other hand, new ways of manipulating the public will exist, the tools to counteract which have not yet been tested. This problem is of particular relevance and is the subject of debate.

A consequence of social uncertainty in the postmodern era is relativism, arising from the contextual conditionality of legal and political concepts (including fundamental concepts for modern society, such as democracy, freedom, and human rights). The proponents of legal relativism present the slogan of the nonuniversal nature of these concepts, which are realized in different societies in various and fundamentally ambiguous ways. Hence, the conclusion that legal universals are nothing more than abstractions, depending on the context, are filled with different and even ambiguous contents. The ideas about law that prevail in a particular epoch are declared to be the results of a consensus, the coordination of the members’ positions of society on fundamental worldview positions.

On the one hand, this approach seems fruitful because it promotes the recognition of the equivalence of all points of view and stimulates conversations on issues of fundamental importance for the rule of law. On the other hand, the denial of universal values and basic laws of legal and social development is counterproductive, from a scientific perspective, and creates threats in practical terms, depriving society of sustainable development guidelines. Therefore, the cognition task is involved in revealing the limits of the contextual conditionality of political–legal communication and in describing the system of universal categories that are significant in any specific sociohistorical conditions.

For our part, we believe that the only way to overcome the loss of trust — a characteristic of the sociocultural situation in the postmodern era — is to redefine the rule of law on the principles, which under any circumstances retain their relevance for all legal communication participants. The most important of these principles seems to be the unchanging ontological essence of man as a free and autonomous being, on the basis of which all other sociolegal phenomena are constituted, especially other legal actors that do not have personal characteristics and the ability to independently form and express the will.

The law, in its objective and subjective senses and in its ontological dimension, is a way of organizing the universal and individual freedom of communicating individuals. Only human beings are existentially and socially free. That is, unlike other subjects whose ability to act is a concrete manifestation of the measure of freedom that characterizes the rule of law, individuals are existentially free in the sense of their independence from external circumstances⁸; therefore, any human actions have “arbitrariness”, which predetermines the possibility and necessity of law as a mode of social regulation. This existential freedom is associated with social freedom, which is an essential condition for the mutual recognition of individuals as community members and legal communication participants, guaranteeing them against the arbitrariness of the carriers of public political power [71, p. 9–18].

Not only a person is historically the main and natural subject of any relations developing within the legal order but also his inherent freedom is the basis on which the legal communication subjects construct the legal order at any particular historical stage of its evolution. “In the image and likeness” of man, the legal order creates legally relevant individuals who, from the viewpoint of the natural setting, are not endowed with subjectivity. History shows that at each successive stage of the law evolution, the circle of such subjects expands: at different epochs, legal subjects were granted to collectives of people (e.g., communities and corporations), legal people, and, finally, to the state, which became an abstract, de-personified subject no later than the 18^th century, separate from the physical personality of the monarch.

In the digital era where prerequisites for giving the properties of law subjects to cybernetic organisms exist, including computer programs and other entities that previously belonged to several objects, the question of mutual recognition of freedom for legal communication participants and qualitative reformatting of the legal order based on such mutual recognition arises again. It is the source of legitimization of the postmodern legal order and consequently, the condition for overcoming the loss of trust in question.

CONCLUSION

The law of the digital society represents a new stage in the evolution of law, which fully embodies the problems and contradictions of the postmodern era and is a response to these challenges. Moreover, the uncertainty of the postmodern era seems to have largely contributed to the digitalization of the system of subjective rights. The subjective rights of legal communication participants, which form the basis of the legal order, are expressions of their will. The formation of the latter becomes difficult in conditions of uncertainty. Therefore, a means of making possible the fullest and most unambiguous realization of any subjective right is required, whether it is public or private law. Such a need largely determines the use of digital means of communication in legal interactions, which have become a prerequisite for the digitalization of the postmodern legal order.

The introduction of digital technology in the realm of legal communication has become a natural stage in the evolution of sign communication, characterized by an increase in the speed of information exchange among communicants and an increase in the number of the latter. Moreover, a direct correlation exists between the stage development of semiotic systems as an aspect of cultural evolution and the emergence of new participants in sign communication. Simultaneously, the sign-symbolic means themselves acquire the ability to signify, along with concrete objects, various classes of them, increasing the volume of transmitted information. Hence, one of the most important trends in the evolution of means of communication is, in our opinion, the abstraction of signifiers’ meanings and the loss of their direct connection with subject referents, making the use of the same signs possible to convey information about different objects indirectly related to one another.

A similar tendency occurs in natural languages, wherein syntactic structures and semantics of means of semiotic expressions at all systemic levels are transformed with the transition to a new stage. Regarding syntactic structures, as Auerbach revealed, languages develop in diachronic retrospect, although hypotaxis does not take the place of parataxis as the main means of structural organization of texts (such a statement would be certainly superficial and unscientific), but at least becomes the prevailing syntactic structure (72). Therefore, early literary texts, such as the Old Testament, the Odyssey, and the Song of Roland, were certainly dominated by paratactic syntactic relationships, whereas modern literature actively employs parataxis and hypotaxis in their various ratios. Thus, modern fiction is enabled to depict or rather to construct reality to the fullest extent possible, embodying its essential properties that are hidden from direct observation.

Similar evolutionary processes can be stated in semantic terms. In the early stages of evolution, the signs mediating sociocultural, including legal, communication referred to specific objects of the external world, with the connection between them being ensured exclusively by associative–imaginative means. The most important of such means were rhetorical figures, namely, synecdoche, which was historically the original semantic device, including metaphors, metonymies, and other tropes derived from it. Their subjectivity was fully consistent with the specified archaic thinking, which provided sociocultural reality coherence.

In the New Age, the means of sign communication acquire general meaning, manifesting itself in all spheres of cultural communication, from mathematics to fiction. The signs of language (be it the language of numbers or words) detach from concrete objects and acquire abstract characters. A vivid illustration of the above is the development of mathematical ideas, namely, the movement from the clarity of ancient (Euclidean) mathematics, which operated with concrete geometric figures, to operations with classes of objects, developed in detail in the works of mathematicians of the 18^th century, such as Laplace, Lagrange, Carnot, and Euler. The achievements of mathematics and other kinds of cultural creativity in the New Age were made possible exclusively through the unification and standardization of cultural languages, including not only mathematical but also law languages.

The digitalization of culture and social space entailed a further abstraction of the means of sign communication from object reality. Digitization, by mediating communication processes, distributes any objects and anonymizes communication participants. This circumstance fully affects the rule of law, which is an ordered system of legal relations, on the basis of which the legal system of society is constructed. Under the influence of digitalization, these relations are transformed in all their aspects, namely, subjects, objects, subjective rights, and obligations. As indicated in this study, legal communication subjects are virtualized, losing their natural properties.

We are pertaining to such constructed entities as legal entities and the state. We have seen that the transfer of these constructions into the digital sphere has become a direct cause of their loss of most features, which they traditionally had in the modern age. Thus, the state in the postmodern world, being deprived of its attachment to a specific territory, the supremacy of public power over which it exercises, is transformed into a network structure comprising vertical and horizontal connections. Simultaneously, in the cross-border space of the virtual (digital) state, these connections become pervasive.

The political communication subjects involved in the game are totally immersed in these processes, becoming increasingly impersonal and elusive. Similar transformations are occurring in legal entities, which used to be personalized property complexes. As properties are digitized, legal entities lose their subjectivity, thereby becoming anonymous participants in the relationships taking shape in the virtual sphere. Thus, depersonalization in the digital era has virtually affected all subjects of legal relations, becoming a direct precondition for the crisis of trust that characterizes the rule of law.

All of the above suggests the need to restore the ties that formed the basis of the rule of law, the disintegration of which was predetermined by the main trends discussed in this study, namely, the anonymization of subjects and the dissemination of objects of rights. Under these conditions, the main prerequisite for overcoming the crisis of trust, which characterizes the digital society, seems to be the steadfast observance of human rights and freedoms. They are the sign means that underlie the construction of the rule of law and ensure its coherence in a situation of uncertainty in the digital age.

¹ Szabo N. Smart Contracts. URL: https://www.fon.hum.uva.nl/rob/Courses/InformationInSpeech/CDROM/ Literature/LOTwinterschool2006/szabo.best.vwh.net/smart.contracts.html (дата обращения: 19.12.2021).

² However, given that their epochs of antiquity existed in other cultural and historical conditions, similar transitions occurred there as well (e.g., in India in the sixth century, in China in the fourth and fifth centuries, in the Sassanid Empire and the Middle East on the eve of the Arab conquest), which the author, guided by the Marxist paradigm, does not pay much attention to.

³ As someone who is not a professional linguist, Whorf seemed to have misinterpreted Sapir’s ideas, which are formulated carefully and have good reasons for them, by giving them a hypertrophied meaning that the founder of the “hypothesis of linguistic relativity” did not mean at all.

⁴ Contrary to the erroneous assertion of Stepanov, who believed that even the basic categories of thinking and language (e.g., causality) have a cultural determination. At first sight, this tempting and self-evident judgment does not find evidence on the whole body of factual material [52, p. 5].

⁵ Guided by an illustrative, albeit not entirely correct, organic metaphor, the totality of legal relations in any human community can be compared to a circulatory system that permeates all its organs and tissues. It follows that the development of society and the emergence of new spheres of social communication inevitably lead to the emergence of new types of legal relations, which were devoid of analogues before. It is noteworthy that despite the dubiousness of the “organic metaphor,” its heuristic possibilities were also used by Spiridonov, speaking of the social organism (integrity), in ensuring the objective prerequisites and the existence of which is the general function of the state [60, p. 10, 47].

⁶ Constitution of the Russian Federation: Adopted by popular vote on 12.12.1993 with amendments approved by popular vote on 01.01.2020 //СЗ RF. 2020. No. 11. Art. 1416.

⁷ Universal Declaration of Human Rights. Adopted by the United Nations General Assembly on 10.12.1948 // Rossiyskaya Gazeta. 1995. No 67.

⁸ Naturally, the independence of external circumstances here does not mean complete irrelevance to them, but the mediation of natural stimuli in behavior by human consciousness and free will. A frog catches a fly not because it is a conscious decision (e.g., under the influence of hunger or other motives, even of physiological nature) but because the appearance of a fly in the frog’s field of vision, motivated by hunger, automatically generates an appropriate reaction of the organism. On the contrary, human behavior, no matter how “reflexive” it may seem at first sight, is always predetermined by a complex set of volitional, mental, sociocultural, and other factors, which allow at least within certain, extremely limited restrictions the making of a conscious choice of several behavioral variants even when influenced by natural, including strong, stimuli, such as hunger and fear.

About the authors

Nicolay V. Razuvaev

Author for correspondence.
Email: nrasuvaev@yandex.ru

doctor of law, extraordinary professor

References

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