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Saturday, October 25, 2014

Finally, Some Useful Scholarship on the "Smell" of Law

From Lawrence Solum's Legal Theory Blog, I learned about this article, What is the Smell of Law? First Assumptions for the Semiotics of Juridical 'Matter,' by Maria Francisca Carneiro, Eliseu Raphael Venturi, and LaƩrcio A. Becker. Here is the abstract:

This article is a semiological approach to a possible smell of Law, considering that the area of semiotics may include any of the five senses. Based on the perception of Law being represented by the Latin expression "Fumus boni juris", we conjecture here if the smell of Law would be the smell of smoke, also describing its structures. From that point on, we discussed the structures of the juridical matter.
For good measure, here's a paragraph from page six of the article:

The aroma of law is smelled before the sentence. Just think of the “smoke of a good right”. Well, the smoke (“fumus”) is not a gas, but a colloid, solid particles (micelles) in the air (“undone”, cf. remarkable image created by Marshall Berman), in a Brownian movement that is only observable thanks to the Tyndall effect. The smoke is a dissipative structure, related to the chaos theory (Prigogine). The Brownian movement is usually chaotic, which apparently means that the semiotics of the “smell of law” would in fact allow for an approach using the theory of dissipative structures. The theory of dissipative structures and the Principle of order through fluctuation contributed to the creation of a new mindset. The following aspects stand out in this new perspective: history, unpredictability, interpretation, spontaneity, disorder, creativity, accident and self-organization. This theory also states that the thought is always in process. It is temporary, not stable or fixed. Similar to the temporary restraining order that is based on “fumus”: temporary, unstable, subject to procedural fluctuations (and the procedural path is not a straight one, but one filled with different circumstances, therefore, fractal, that is, chaotic) that may repeal it or suspend it. 
Chief Justice Roberts has denounced legal scholarship as being too esoteric and disconnected from the practice of law. It is good to see that scholarship like Carnerio, Venturi, and Becker's paper exists to prove him wrong.

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