Trial: a Special Type of Technology vs Play Imitation

Abstract

The article deals with the issue of the technique of the communicative action in an adversary trial, where the communicative action is represented within the interactive play recognized by both parties, in which abuse is unacceptable. At any stage of the controversy and the conflict regarding statements and arguments of a court language game, participants verify their statements and arguments with material and symbolic means capable of assisting them, while at the same time attempting to deny their opponents, breaking the links between their opposing statements and their own means. The basis of adversary proceedings is the system of language conventions between participants of language communication, and judicial knowledge is transformed into «narrative» one.

Analyzing the «agonistic» adversary nature of the judicial procedure, the author notes that the latter, like the game, is built on an artificial basis, according to specially created rules, and conceals a real social conflict by conditional legal «quasi-conflict». On the other hand, it is proved that the nature of the adversary trial is dual; it is characterized not only by the element of play, but also by a less powerful utilitarian component. The adversary nature of justice does not turn a judge into a passive witness of a debate between parties of a court trial, does not relieve him of his responsibility to comply with the matter of fact, to choose an adequate rule and to make a fair decision. Otherwise, justice is invariably transformed into a «dead play ritual»; abuse of the play itself — a solid imitation, a theater, an ideological liturgy, or vice versa, deliberate creating of barriers to transfer of the conflict to the territory of law.

Taking into account the philosophical and legal conception of the judicial procedure as a civilized form and a specific type of legal communication of the participants of the trial, the author emphasizes that excessive language game between the participants of the trial is dangerous, since it deprives the justice of the permanent and the sacred — to establish the truth in the trial. In addition, it is paid attention to the fact that a full-fledged play can expand in a free area limited by a symbolic framework, where rules, not surrogates, operate and they are recognized and enforced by both parties.