Beauty and Truth: Re-defining Legal Artistry's Normative Aspirations
McDonald, D. A. (2007). Beauty and Truth: Re-defining Legal Artistry’s Normative Aspirations (Thesis, Master of Laws (LLM)). The University of Waikato, Hamilton, New Zealand. Retrieved from http://hdl.handle.net/10289/2365
Permanent Research Commons link: http://hdl.handle.net/10289/2365
Abstract Judges are responsible for creating case law, and each case is important, because each develops (in theory) the body of law as a whole. Each judgment should be able to meet the definition of 'art' that I will set out and apply in this thesis. Where a judgment meets that test of art, it will be successful in relaying the 'truth' of the law in a rich, lasting and forceful manner. It is important for case law to relay the truth of the law in such a way because case law's function is to communicate and reinforce social values by recognising and applying universal principles of justice and fairness to situations that arise from social life. In summary, this thesis examines whether the each of the main cases that have developed the duty of care test in negligence meets the criteria in the definition of art set out in this work, so that they may be called works of art. Each of the relevant cases will be evaluated to see: whether each embodies a 'system of rules and principles' (rules and principles being separate concepts) as these relate to the duty of care test; and whether each may be called beautiful. For, a work of art is one that incorporates all of these aspects: rules, principles and beauty. I will define what art is, and I will describe art's function in the world. I will explore and define the concept of truth, as it relates to this thesis, and I will attempt to make clear the analogy between truth as Idea (in the Greek sense) and the law as Idea. Further, I will look at the context in which the judicial opinion is created, and I will consider the responsibilities judges have to reason by analogy under the doctrine of precedent. Then, I will consider the concept of beauty itself, and how it affects us as those who experience the work. Finally, I will show that the concept of 'duty of care' in negligence, leading up to and culminating in Lord Atkin's dictum in Donoghue v Stevenson (1932) AC 562 (HL), has been developed by judges so that only 50% of the cases considered meet the test of: a system of rules and principles governing that particular aspect of the law; and beauty. Thus, only the cases that meet the test will be considered to be successful in conveying the truth of the law (and allowing us to access that truth) in a rich, lasting and forceful manner, because this is art's function in the world.
The University of Waikato
All items in Research Commons are provided for private study and research purposes and are protected by copyright with all rights reserved unless otherwise indicated.
- Masters Degree Theses