Law of Digital Society: Actual Problems and the Ways of Development

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Law of Digital Society: Actual Problems and the Ways of Development¹

INTRODUCTION

The law state in the postmodern era has been the subject of attention for both legal theorists and practitioners of various legal disciplines. According to a frequently expressed view, the postmodern legal order is a qualitatively new stage of legal evolution that has distinct differences from the previous stages, first, from the national legal systems, which were the structural basis of the modern era legal orders [1, p. 40; 2, p. 99]. Each of these systems had delineated spatial limits of action, and specific inherent to their stylistic characteristics, acting as the primary substantive distinction criterion of legal orders and their association into legal families [2, p. 108].

The globalization of law and interpenetration of legal families (in particular, the convergence of certain elements from Romano-Germanic and Anglo-American legal orders) at the stage of high, or late modernity became a direct cause of style mixing, with particular clarity manifested in the early years of this century when the discussions about “postmodern” started. One of the most striking examples of this style mixing, which is directly relevant to this article, is the transformation of the legal person category in continental law under the influence of actively copied Anglo-American models.

Therefore, according to the establishment in Europe in the era of post-Glossators representation, a legal entity is an independent legal personality, a sole owner of its property, not derived from the legal capacity of the organization founders and participants, i.e., it is not a “collective subject of rights” [3, p. 350-353]. However, in Anglo-Saxon law, a legal entity was originally designed as a property complex belonging to the right of ownership, including trust, to one or more persons. Hence, it is easy to state that in both continental and Anglo-American law, the legal person is not a person but construction, the result of the legal order construction, conducted by sign-symbolic means used by participants of legal communication.

Nevertheless, the starting points and directions of the legal entities’ constitution in the Romano-Germanic and common law are opposed. In the first case, the property isolation acts as a peculiar attribute of the legal personality presence; when followed in a logical sense, whereas in the second, it acts as a secondary, derivative characteristic of the property complex [4, p. 88]. These distinctions in the semantics of the sign construction for a legal entity originally lost their relevance to those commercial organizations that conducted international trade activities in the conditions of different legal orders.

Consequently, the Anglo-American model of the “corporation” later became more actively transferred to the continental area [5, p. 98], which in particular entailed the reception of the “removal of corporate veil” idea historically alien to Romano-Germanic law, the application of which caused many difficulties both for doctrinal and practical nature [6, p. 678; 7, p. 52; 8, p. 5; 19, p. 106; 10, p. 18; 11, p. 226]. Naturally, such difficulties, caused by the active convergence of legal orders and the blurring of styles provoked by it, are not limited to civil law but affect various aspects of legal communication, from constitutional human rights and freedoms to criminal responsibility.

Simultaneously, the need for a theoretical understanding of the qualitative changes that characterize the law in the postmodern era has resulted in a well-known epistemological confusion, provoked by the ambivalence of the major categories used by legal communication participants. I.L. Chestnov gives a detailed description of the current situation, according to whom, in postclassical epistemology “there is uncertainty in the categorization, classification, and qualification of social (and legal) reality. We have to state that in the situation of ‘post-modernity’ it is impossible to give an unambiguous assessment, including legal one, of a complex social phenomenon or process” [12, p. 32].

However, digitalization turned out to be a largely unexpected trend that was outside the discussion scope at the beginning of the last decade, when discussions about the ways and prospects of further development for law and state in a postmodern environment intensified. It is easy to notice that the concept of “post-modernity” in the theoretical discourse has had and continues to have ambiguous connotations, denoting a crisis of uncertainty in the scientific and practical spheres, which marked the last stage in the evolution of the law rule that began in the 1980s. Such uncertainty, which prevents the formation of any sound scientific conclusions, and further development predictions, has a negative impact not only on the law rule but also on legal doctrine.

Thus, the digitalization of law and order has attracted the attention of researchers who see in its study the way out of the ideological and methodological deadlock that has affected both the general law theory and sector legal disciplines [13; 14]. Note that the digitalization issues first surfaced and were discussed as part of the digital democracy debate, which revealed the possibility of using digital technology to regulate political and legal relations [15]. Despite the well-known skepticism, sometimes demonstrated by the scientific community regarding the effectiveness of electronic procedures as a means of decision-making and the general will formation, there is no doubt that these procedures indicate the transition of legal communication to a qualitatively new stage of evolutionary development.

Therefore, it should also be noted that political deliberation, which requires the active participation of the society members and aims to achieve a universal agreement (consensus) of their opinions [16, p. 5; 17, p. 29], is difficult to be completely digitized, let alone replaced as an existentially and socially free being by artificial neural networks. A discussion of the digital transformation of subjective civil rights can be much more achievable and can lead to some interesting conclusions about their legal nature and essence, which can contribute significantly to the advancement of civil science [18; 19].

Consequently, despite the strenuous efforts of researchers, the specifics of digital transformation in the subjective civil rights (primarily, rights in rem and rights of obligation) remains unclarified, scientists are already making assumptions concerning the modification of the civil law contract essence, which require the minimum activity of counterparties. Therefore, the digitalization of personal non-property rights is a promising trend in the civil law system dynamics, which contributes to the construction of new participants in legal communication and the emergence of law subjects that previously did not have the properties or attributes of legal personality.

Furthermore, the point of emphasis here is about artificial intelligence, which is a database and is not a subject, but an object of civil rights. Hence, the identification of the artificial intelligence place in the system of modern law and order, in our view, requires either a complete rejection of the idea of freedom as a legal communication driver, which would be devastating for the law, or the rethinking of the concept of freedom, claiming its inherent value in the new environment. Nevertheless, the latter option is preferable and reveals global prospects for the law rule evolution in the age of high technology, which stimulates paradoxical illusions about the ability of society to eliminate human factors from the mechanisms of its development. However, the highlighted points above undeniably demonstrate that the law serves as the last humanity bastion in the raging ocean of technological determinism, providing grounds for cautious but confident optimism about the enduring significance of human dignity and freedom in the digital age. Thus, we see that the digital revolution of society, law, and the state has opened up new, sometimes unexpected, prospects for development while revealing the challenges that human civilization must address. These challenges include depersonalization, anonymization, and, as a consequence, the loss of mutual trust among participants in legal communication. Consequently, some observers are irresistibly tempted to declare not only the “subject death”, which is not a new trend since such views were expressed by F. Nietzsche [20, p. 440] and M. Foucault [21, p. 404] but also the end of legal science, which will no longer be required when the place of the autonomous will of individuals; whose manifestations require theoretical and philosophical understanding, is taken by the said “neural networks”.

Therefore, without a doubt, such a development path is a dead end, not to mention the utopianism and poor reality of implementing such a plan into action. Thus, a shift of legal communication as purely human property to a new stage of evolutionary development, accompanied by the enhancement of the communication means between the participants is an alternative to counter this challenge, which will be discussed in this article. Therefore, we believe that the digital transformation of law in the postmodern era, notwithstanding the serious problems that arise in this context, can result in not only threats but also opportunities to develop the constructivist capacities of communicating with individuals.

Digital Transformation as a Major Trend of the Postmodern Era

The problem field of legal science is determined by the global changes of legal phenomena, the basics of which are the construction processes, stimulated by technological, socio-cultural, economic, and political development of society. Therefore, the digitalization of all social life spheres is the most important trend that characterizes these processes, which is the outcome of the technological revolution in the late 20^th century, followed by the emergence of post-industrial society [22]. However, the digital transformation of the latter is a natural result of the general trends in human cultural evolution. Nevertheless, being a qualitatively new condition, it has generated several phenomena that have no analogs in the pre-existing legal orders.

Consequently, without a doubt, the digital transformation has transformed not only the system of social relations and legal reality but also affects the individual, changing (and in many ways even abolishing) many habitus that determines his/her behavior in the social environment [23, p. 91]. These changes are reflected, first, in the communication methods, in the expression of thoughts on the lexical, morphological, and to a lesser extent, phonetic levels of the language system, increasingly subject to the unification necessary for full-fledged communication with artificial intelligence. In semiotic terms, these processes lead to a qualitative change in the existing sign systems, including the law system in all its dimensions, namely, semantic, syntactic, and pragmatic. Such changes create insurmountable difficulties in terms of communication, which have a serious impact on the participants’ behavior in social interactions.

Thus, considering the legal order as a sign system, which acts as a text generation mechanism, it is easy to see that legal messages (texts) created by digital communication technologies are difficult to decode by conventional means, creating the prerequisites for the legal order uncertainty, uncertain in cognitive terms. Thus, faced with several phenomena generated by the information age (such as digital rights, digital databases, and other objects like artificial intelligence), the doctrine finds it difficult to interpret the legal nature and essence of the latter.

Nevertheless, as soon as the current legislation and judicial practice have to consider the existence of such phenomena, the controversial doctrinal interpretations affect the application of relevant norms, significantly reducing the effectiveness of the latter in terms of regulating emerging relations. Thus, digitalization alters the presuppositions of social and legal communication, rendering the usual language games meaningless, delegitimizing the existing legal reality order. Therefore, many of its basic concepts are no longer what they have always meant: a thing is no longer a thing, money is no longer money, an obligation is no longer a mutual relationship between subjects (Article 307 of the Civil Code of the Russian Federation)², and the latter themselves undergo a qualitative transformation in digital reality, changing the properties of their (right) subjectivity that initially look immutable.

Furthermore, abolishing the communication rules, including many tacit conventions of the latter, the digital transformation of society also affects language games, in what J.F. Lyotard saw a key feature of the postmodern state, according to whom “if there are no rules, there is no game; even a slight change in the rules changes the game nature, and the ‘reception’ or the statement that does not satisfy the rules is not subject to the game defined by them” [24, p. 32]. Simultaneously, there is an urge to declare postmodern as a new qualitative state of the social and legal order, when the absence of general rules entails a total deconstruction of the existing order, namely, a certain emergency state, which has become the norm [25, p. 9].

However, such an assertion is fundamentally wrong. The abolition of the more complicated rules that appeared at the later stages of the human communication evolution does not make the games, as such the basis of any culture, impossible, as experience shows [26, p. 21], but forces their participants to turn to the initial and simpler sign means for organizing a communicative interaction. Thus, the absence of a developed system with general rules constructing property and other relations about digital objects, in conditions of such relations’ actual diversity, force subjects to regulate their interaction by subjective rights and obligations applied ad hoc, in each case.

This phenomenon of occasional regulation, or “individual norm” (despite the controversial and problematic nature of this concept), which is common in many socio-cultural communication areas, has attracted the attention not only of the linguists [27, p. 45; 28, p. 241; 29] but also the lawyers. Consequently, B.A. Kistyakovsky singled out in his time two interrelated and equally necessary aspects of the law that determine its action [30, p. 356]. Hence, one of these aspects is a general rule that is a formal and logical judgment on the universal cause-and-effect relationship of social phenomena derived from the actual circumstances the requirement of possible or proper behavior, action, or inaction. According to the scientist, as a logical construction, the norm has a purely rational character and lies entirely in the conceptual sphere.

Furthermore, another aspect of legal regulation is constituted by subjective rights and duties, characterized, in contrast to the general rules, by the following features. First, they are related to specific factual situations and apply exclusively in this latter. Second, they arise mostly because of the manifestation of the interacting individuals’ free will, on their private initiative. Third, being a way of mental-psychological social reality assimilation, subjective rights and duties are associated not only with rational and conceptual thinking but also to a large extent with extra-rational (emotional, sensual, figurative, etc.) elements of the psyche, having a powerful suggestive effect on the legal communication subjects [31].

Therefore, proceeding from the B.A. Kistyakovsky states “the law, as it consists of norms, is something unconditionally rational. Like concepts it is created by reason, without which norms could not be either conscious or formulated... However, law is not only a set of norms, but also a vital phenomenon... In life subjective law is given in the form of innumerable legal relations or rights and duties assigned to all members of a particular society, binding them together and uniting them into a single whole. All these legal relations or all these rights and obligations are unconditionally specific, singular or individual... Each such fact in its individuality, singularity, and unrepeatability is something certainly irrational” [30, p. 359-360].

From this perspective, the scientist concludes that “it is necessary to recognize as a fiction the identification of the right, which consists in legal norms, with the right exercised in life, in legal relations, and in individual rights and obligations” [30, p. 360]. Thus, the normative component of law and order, which undoubtedly has a historical nature, in the process of the law evolution and order is subjected to various transformations and can lose its relevance for the legal communication participants. Such transformations occur when legal communication, due to changes in the socio-cultural and historical context, figuratively speaking, begins to flow differently, arising from reality, from a variety of unique factual situations with existential content, and the individual rights and obligations associated with these situations³.

Therefore, it can be said that they are the primary means of constructing the legal reality, forming its basic (“primordial”) level. Moreover, due to the well-known to sociologists phenomenon of the irremovable presence of the primordial beginning at any stage of the society development⁴, These means not only historically underlie more complex ways of construction, such as legal norms, but also come to the fore during transitional periods, when pre-existing norms cease to fulfill their inherent constructivist and regulative functions with an appropriate effectiveness degree, and norms of a new historical type have not been formed.

Thus, this circumstance allows us to conclude that the postmodern situation linked with the digital transformation of cultural communication is a temporary condition that inevitably accompanies the transition of sign communication to the next stage of evolutionary development. In the context of these considerations, it would noteworthy to consider the place of modern electronic communication forms in an evolutionary series started not only to the early types of writing, namely pictography and cuneiform writing but also to such specific methods of information transmission as Paleolithic rock painting and sign language, which appeared in the animal ancestors of man. Hence, a detailed comparison of all anthropological, linguistic, and cultural data that science has at its disposal makes two circumstances evident.

First, the evolution of communication progresses step-by-step, and the transition to each successive stage, expanding the range of signification media, allows for a more complex and comprehensive construction of socio-cultural (and hence legal) reality. Second, the transition to a new evolutionary stage is not a smooth and un-conflicted development of the trends established by the previous stage. This transition is associated with the disintegration of the existing world picture, entailing the coherence loss of the latter. It is the uncertainty of this kind that the “new reality” of the digital age deals with, and it seems obvious that as long as the emergence of new signifiers is the primary uncertainty cause, the condition for overcoming uncertainty is the habitualization of the latter.

However, if we turn from the cultural situation to nature, one will realize that the qualitative changes brought by the digital transformation have affected not only the psychological but also the corporeal properties of all social action actors with no exception [34]⁵. Therefore, since corporeality is an aspect of identity, it follows that the metamorphosis of the corporeality typical for the digital society members must be considered in the general context of the personal identification crisis in the postmodern era [35]. It is important to note that this crisis, however, has a general anthropological character and creates consequences in legal terms, contributing to the rethinking of the state and legal persons’ categories, which are, along with physical persons, participants in legal communication.

Consequently, since the Middle Ages (if not since antiquity) these entities, intangible in physical terms, were constituted in the image and likeness of man, as a certain “collective body” [36]. It is no coincidence that the noun corporatio used in medieval Latin is etymologically derived from the Latin corpus, which simultaneously means both body, action, and a separate physical object as opposed to both immaterial objects (incorporales) and generic corporeal things. Hence, rationalized notions of the legal personality of the state and other social structures as entities possessing a volitional attribute and a substantive basis, necessary and sufficient for participation in legal communication, emerge in the New Age. Thus, the reason why the changes occurring in the era of digitalization with human personality (including its physical properties) affected the legal order, causing several fundamental trends that deserve special consideration.

Depersonalization of legal communication subjects in the law and order digitalization

One of the most crucial practical consequences of law and order digitalization without exaggeration; is the loss of certainty of both the subject composition of relations that develops over social objects and the latter. Namely, subjects undergo depersonalization, and objects undergo de-personalization, creating a situation of uncertainty for the relevant legal relations. First, we are referring to the state, which earlier than any other legal order actors, at the beginning of the New Age, began to acquire the properties of a special, de-personified personality, not reducible either to the personality of the State ruler or to his property [37, p. 32; 38, p. 563-567]. Already in the conditions of late (high) modernity, the modern state turns, as M. Weber rightly highlighted, into “a complex of specific joint action of people who orient their behavior on the idea that it exists or should thus exist and that, therefore, certain legal orders are significant, i.e. binding” [39, p. 76].

Consequently, the state as an active participant in the law rule is framed as a set of relations with significance for all other subjects⁶ in the pre-digital era, allowing it to be a subject similar to physical and legal persons. Meanwhile, the modern state was not and could not be such in the context of the natural attitude assuming that only living beings with consciousness and will, necessary and sufficient for decision-making and action, can be active participants in social relations. The modern era condition had the corresponding significance due to such features as territorial homogeneity, organizational unity, public authority, and sovereign nature of state power, allowing participants of political communication to perceive it as a person, even if sui generis, which is indicated by such expressions as “the state will”, “the decisions of state bodies”, “the application of coercive influence on offenders” frequently used in the literature.

Under the conditions of digital society formation, the signs of the modern state, expressing the semantic core of its legal and social subjectivity, are undergoing a qualitative transformation that has turned the state into one of the many “imaginary landscapes” which has become the subject of attention in recently. Thus, the founder of this concept, A. Appadurai demonstrated through various examples that imaginary landscapes lack the property of territoriality, and have lost their relevance because of moving to the digital environment [41, p. 32]. It is easy to see that a similar metamorphosis, as the information society develops, takes place with the state, the determinateness of which is a natural consequence of the transition to the digital environment.

Therefore, the transformation of the territorial characteristic influenced other state characteristics. Thus, vertical-hierarchical structural links became transformed into a more flexible horizontal structure, and public authority decentralized, evenly distributed among many subjects of social communication, which also included non-political subjects (public organizations and other private structures). And it leads to a “blurring” of the traditional perception of sovereignty as the supremacy of the state public power

Therefore, considering the state, as well as political space in general becomes relevant, as one of the “imaginary landscapes” highlighted by the researcher, along with ethnoscapes, media space, techno space, financial space, and ideological space. Thus, for example, in the game world, which is becoming an increasingly vivid and typical example of digital reality, in accord with the accepted rules, a certain (virtual) participant who has the power can be constructed, including the possibility of applying those or other sanctions to other subjects of the game process.

However, this participant, which can be a computer program, will act as a “state” in the media space which has all the traditionally distinguished attributes, including the presence of power and the possibility of applying sanctions that will be realized as long as the other participants are ready to recognize (to legitimize) the possibility of their application. Nevertheless, its qualification as a state, from the viewpoint of the existing doctrinal ideas, is problematic because the dispositive power of this game institution is limited to two points.

First, the circle of subjects (“subordinates”), which are subject to these powers are limited to those who participate in the game, thus, voluntarily accepting its rules. Second, the supreme power limits of such a state are exclusively virtual, being localized in the game reality. Therefore, the virtual state has no circumscribed geographical territory, borders, as well as other attributes of existence, inherent in “real” political institutions, which the evidence of its existence does not make it less real for the communication subjects, which in this case participate in the game process [42, p. 13].

Further, a similar tendency to depersonalization, which is the result of the digital transformation of the main features, is experienced by legal entities. As is known, following Paragraph 1, Article 48 of the Civil Code of the Russian Federation, a legal person is an organization, which possesses separate property and is responsible for its obligations, on its behalf acquires and exercises subjective civil rights and obligations, as well as acting as a plaintiff and defendant in court. Thus, the main features of a legal entity, which determine its civil (as well as any other) legal personality, in the current legislation, as well as in judicial and law enforcement practice and legal doctrine are considered organizational unity, participation in property relations on its behalf, the presence of separate property, and independent legal responsibility [43].

However, guided by the understanding developed in the works by M. Weber, legal entities, both corporate and unitary (Paragraph 1, Article 65.1 of the Civil Code of the Russian Federation), can, like the state and other public legal entities, be considered a special social reality, namely as a set of relevant interactions of legal communication participants, as well as subjective rights and obligations of the latter. Such a definition, already developed with corporations and institutions of the industrial era, has received a powerful impetus due to the digitalization of civil turnover, and the digital transformation of its subjects. Under these conditions, it becomes obvious that all organizations are legally formalized activities aimed at achieving economic and other goals.

Accordingly, subjective rights and obligations acquired as well as exercised in the process of such activities determine the legal entity’s subjectivity and form its substantive basis. This circumstance is noted by V. K. Andreev, according to whom, “legal capacity of a legal entity is a totality of rights and duties that it can have. Legal capacity of a legal entity is not the ability, as with citizens, but the ability to have rights and obligations associated with the right of a legal entity to carry out activities defined by its charter” [44, p. 59]. Generally, we can agree with the expressed judgment, although the very terminological opposition “ability/opportunity” seems farfetched, given the interrelation of dictionary meanings of these words in the Russian language.⁷

Nevertheless, there are sufficient reasons to argue that the legal entity as a phenomenon of law and order in the structural and functional plan is a set of communicative interactions, the unity of which is constructed by the sign means, namely, property, liability, corporate, as well as other rights and obligations. As stated above, the substantive basis of the legal personality in the modern state, a peculiar manifestation of its “corporeality”, are the territory and population (citizens), on which the sovereign power of the state applies, i.e., the public powers of the latter.

Similarly, considering the specifics of legal entities as economic entities, their substantiality finds its expression in a separate property belonging to a legal entity on the ownership rights, limited property right, or other subjective civil rights. However, the sign of property isolation, which implies that the property belongs to the organization, but not to its founders (participants) or third parties, sets the outer limits of the legal entity subjectivity in the physical and social space, just as the human body in the most direct way separates one individual from another, and the territory and population, which determine the state spatial limits, form a specific “corporeality” of the latter.

This situation is particularly evidenced in the provisions of article 132 of the Civil Code, which defines an enterprise as a property complex, owned by a legal entity as a set of various tangible and intangible objects (real estate, movable property, including inventory, raw materials, products, claims, debts, rights to commercial designations, etc.). Simultaneously, in accord with Clause 1, Article 132 of the Civil Code of the Russian Federation, the enterprise as a property complex is generally recognized as immovable property, which characterizes the legislative approach to such objects of rights in terms of recognition of the priority for their material component.

Therefore, for clearer understanding, it is necessary to note that under material goods we understand objects that have an external physical expression or material substance, following the well-known criterion applied by Roman lawyers, in particular Gaius, who saw the main difference between corporeal and immaterial things in the fact that the former can be felt, while the latter cannot [45, p. 87]. Consequently, the sign of materiality, contrary to the sometimes encountered erroneous point of view, is by no means a property-value characteristic of the civil rights’ objects, since some property goods (namely things, including cash and certificated securities) are material, while others (for example, non-cash money, uncertified securities, the performance of works, rendering services, rights of claim, etc.) have an intangible nature. The intangible nature, as follows from what was said before, are also digital rights, as well as digital assets, and the peculiarity of the latter is that here, along with the intangibility, is added the virtuality sign, inherent in any phenomena that exist on the Internet.

There is every reason to state that the processes of digitalization and virtualization entailed changes that contributed to the qualitative transformation of the legal entity, at least at the level of its substantive embodiment. The above trend intensified with the appearance of the securities’ electronic form (primarily, the shares), which became common objects of transactions in the stock markets. Hence, to buy shares of corporate legal entities, a trader does not need to be present in person at the stock exchange and receive the documents to be purchased during trading, as it was before the following: it is enough to have an electronic application, through which transactions can be made by purchasing (in non-documentary form) various assets, and after expiration of the term established by law, the asset becomes the property of the relevant securities’ buyer.

An important consequence of the development of circulation for the securities issued in electronic form becomes the transformation of the property basis for joint-stock companies and other legal entities, i.e., ultimately, a qualitative modification of the property isolation sign of the latter. As mentioned, the presence of a separate property is considered an important characteristic of any organization as an independent participant in the civil circulation: just as the body (which was discussed earlier) is the most visible external attribute of any person, not existing outside and apart from its corporeality, the property complex is the main manifestation of “corporeality” for the legal entity. Moreover, according to one of the existing theories, the latter is nothing but a separate property used for a certain purpose, namely, to gain profit or achieve other results [46, p. 59-63; 47, p. 55; 48, p. 14-15].

Therefore, as a vivid illustration, using joint-stock companies as a case study, which, in accord with Paragraph 1 of Article 96 of the Civil Code of the Russian Federation, are corporate entities (business companies), the authorized capital of which is divided into a certain number of shares. Thus, shares are not just documents registering the obligatory and other rights of their holders (Clause 1, Article 142 of the Civil Code), in this case, they are the shareholders, and a share in the authorized capital of the legal entity, which belongs to the shareholder on the corresponding property right. Consequently, a share is a kind of “sign” referring to the property as its referent.

However, in a semiotic structure where all levels are interconnected and mutually correlated, the virtualization of the signifier is an indicator and part of the reason for the dissolution of the object basis in reality, including legal reality, which is a significant development trend in the postmodern age. In this regard, legal entities, because of the legal order, the digital transformation lose their substantive basis, being constructed in the image and likeness of those “imagined communities” that Benedict Anderson examined as an example of nations in the New Age.

According to the scholar, such a community is “imaginary because the members of even the smallest nation will never know, meet or even hear of most of their fellow-nations, while in their minds the image of their community lives ... He thus assumes that there are ‘genuine’ communities which it would be useful to compare to nations. In fact, all communities larger than primitive villages (and perhaps even they) are imaginary” [49, p. 31]. Drawing a relevant parallel, it would be useful to make a reservation that legal persons, even corporate ones, unlike nations, are not “communities” in the strict sense of the term, because any organization has a sign of internal unity, representing not a collective but an individual subject.

Nevertheless, the legal entity is constructed by the signifying means that culture has at its disposal. Additionally, for any culture, up to and including the modernity epoch, each entity of this kind had not only a sign-symbolic but also a material dimension. Thus, for a nation, the material dimension was formed at the expense of those people who counted themselves to this unity; for a state, it was determined by its territorial feature; finally, the “matter” of a legal entity was the property (things, cash, documentary securities, etc.) that it possessed.

The dematerialization of those legal communication subjects in question not only caused new challenges to the legal and social order stability but also gave hope for the resolution of conflicts that seemed insurmountable in the age of modernity. Indeed, the dissolution of nations created the conditions for the formation of new unities unencumbered by national conventions and prejudices; the loss of state territorial features could end military conflicts provoked by the geographical factor, which had long been considered a prerequisite for the self-preservation and survival of the political community.

In conclusion, the transformation of legal entities as property complexes into virtual designations inscribed by cultural consciousness on the imaginary map of postmodern society has expanded the limits of economic wealth, which had seemed immutable since Adam Smith and radically redefined the very idea of private property. One of the most important consequences of this rethinking is the growth (due to the emergence of new property goods types) of the number of private owners, thereby stimulating the individuals’ social freedom.

The digitalization of subjective rights (Article 141.1 of the Civil Code), which is vested in legal entities in the course of their economic activities, results in the transformation of the latter from real to virtual unities and serves as an important manifestation of the general trend toward the legal order anonymization, inherent in the information society. Therefore, under such conditions, only people as the primary and natural participants of legal communication remain the only relatively stable subjects not completely affected by the processes of anonymization and depersonalization. The essence of law, representing a special result of people’s social creativity (text) [50, p. 73-76], as well as the resulting property of human dimensions of legal existence [51, p. 77] allow doubting the validity of popular predictions about the “subject death” in the postmodern era, at least in the area we consider.

¹ This publication is focused on a subject that triggers active discussions in legal, socio-philosophical, and sociological literature. At the same time, the contemporary issue of law digitalization does not have a generally accepted solution. According to some researchers, digital transformation represents a means to overcome the postmodern crisis situation, providing opportunities for the transition to a qualitatively new state of society (and, consequently, state and law). Other scientists consider it only a short-term tendency that does not affect the essence of the judicial system. The author has attempted to examine in detail the development of law within the conditions of the digitalized society, referring to the anthropological, general cultural, and legal aspects of this process. The complexity of the problem, as well as the ambiguity of tendencies in the development of digital law, which require comprehensive consideration, elucidates a large scope of research, the first part of which is published in this issue of the journal. The continuing article will be published in the next issue – from the editor.

² The Civil Code of the Russian Federation. Part One. In the Edition of the Federal Law No. 33-FZ dated March 09, 2021// Legislation of the Russian Federation. 1994. Issue 32. Articles 3301; 2021. No. 11. Article 1698.

³ In addition to B. A. Kistyakovsky, this circumstance has been emphasized by many law theorists. Thus, one of the most consistent and productive in scientific terms should be recognized the concept of A.V. Stovba [32], building the ontology of legal reality, based on specific life situations (“legal incidents” and “legal events”) in all their existential completeness. In this case the uniting beginning for all variety of such events is the participation in them of legal subjects, being simultaneously and participants of daily communication: I, Other, Everyone.

⁴ This “indomitability of the primordial in society” is noted in particular by the American sociologist Neil Smelser [33, p. 13].

⁵ Unfortunately, the authors of this publication, while providing a solid collection of opinions, do not draw their own conclusions from the material under consideration. Meanwhile, the transformations of corporeality in the post-modern society are by no means reduced to such well-known phenomena as fitness, body modification, etc. [34, p. 14], but have a much more far-reaching character, leading eventually to complex transformations of the human nervous system and internal organs, made possible by the development of information technologies in medicine.

⁶ Using A. Schütz’s terminology, such relevance can be called interpretive, implying by it the ability to create conditions for the perception of the external world phenomena in the context of the familiar social environment, thereby providing interaction with them [40, p. 264].

⁷ Ozhegov S.I. Dictionary of the Russian Language. The 20-th Edition, tereotyped. Moscow: Russian language, 1988. P. 618.

About the authors

Nicolay V. Razuvaev

Author for correspondence.
Email: nrasuvaev@yandex.ru

doctor of law, extraordinary professor

References

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