The following materials are adapted from the Guide to Academic Success, available on the JD LMS Community.
Your reader expects you to explain, clearly and succinctly, the current law and legal issues relevant to your topic. This work is called ‘exposition’. However, as a member of the legal community, your reader has access to the same sources that you do, and may already be familiar with many. So, while thorough research is essential, and while you must develop and demonstrate an accurate understanding of the current law relevant to the particular topic, a research essay requires more than a summary of the relevant legislation and judgments.
Your readers will want to gain some insight or understanding from reading your essay. Consequently, they will expect you to provide ‘analysis’ – of your sources, of the issues raised by the topic, and of current approaches to and thinking around the topic. They will expect that analysis to produce and support a central, unifying argument (see the following section). Research, exposition and analysis sit hand-in-hand in a well-crafted essay. Your analysis of the topic is more authoritative, and hence more persuasive, when your exposition of the law and the legal issues is thorough, accurate and succinct.
Analysis v Description
‘Analysis’, ‘critical analysis’ and ‘critical thinking’ are umbrella terms used in academic disciplines to describe various analytical or ‘higher order’ thinking activities.
Analytical or ‘higher order’ modes of thought are commonly contrasted with ‘mere’ comprehension, memorisation, description or regurgitation. ‘Analysis’ thus involves thinking activities that go beyond reproduction of information – for example:
Note, however, that these activities rely on knowledge and comprehension. Analysis builds on these modes of thought; they remain the essential foundations. Put simply, you will not be able to write analytically about a topic without extensive knowledge and understanding of that topic. Also note that ‘critical’ analysis can be positive – it is not synonymous with ‘criticism’. It is only ‘critical’ in its insistence on asking questions such as: ‘how can we know this?’ and ‘how could this be improved?’. Consequently, assumptions and propositions are questioned; evidence, proof and reason are required; existing thought and practice are extended. This is why critical analysis advances your reader’s understanding and consideration of the topic.
Analytical work is manifested in legal writing through:
- A paper’s content: the comments, ideas, insights, reasoning and so on
- A paper’s structure: the organisation of information to enable new or different connections to be drawn; or to systematically substantiate and advance the central argument.
Essays are a persuasive form of writing designed to inform and advance the reader’s thinking on the topic. They do this structurally by introducing and developing a central argument, which is supported by evidence, analysis and reason. Note that in academic terms, an ‘argument’ is a form of reasoning, not a ‘debate’ and not (necessarily) a heated exchange of views.
An academic legal argument is:
- A succinct answer to the set question or a statement of the writer’s position on an issue (thesis), expressed as an informed legal opinion
- Supported by evidence, reason and authoritative sources
- Developed logically and persuasively throughout the paper.
An academic legal argument is not:
- A survey, explanation or summary of relevant research
- A report on your research findings
- An unsupported personal opinion or point of view.
To enable your reader to evaluate the merits and validity of your argument, you need to explicate the research findings and the reasoning that have informed your thinking. Points, evidence and examples that support your position need to be developed and explained; counter-arguments and contrary evidence also need to be examined and evaluated. Remember that your argument will only be as good as the evidence and reason on which it is based, so ensure that you are using the most authoritative and up to date sources.
A Central Thesis
An argument needs to have a central thesis (also called a central contention or proposition), which is developed and supported throughout the paper. The thesis represents the author’s ‘position’ or ‘point of view’ on the topic under consideration. If you have been given a question for your essay, your thesis or central contention represents your ‘best answer’ to that question.
A Justified Judgment
Of course, the essay writer’s point of view is informed by research on the law and supporting material; it is not a personal perspective. Other legal analysts, however, may take a different view of the same materials. This is why the author needs to explain their reasoning and cite the sources they have used, especially the legislation and case law that they have deemed applicable. There are no right or wrong answers to essay questions; only strong or weak arguments, supported by more or less comprehensive legal research.
The central contention of a law essay should be stated clearly, succinctly and early – you tell the reader what you are going to argue before you proceed to do so. The finished paper does not mirror the essay writing process in this respect. An essay writer rarely formulates their argument in full before they have researched the topic and drafted sections of the paper. Indeed, the central argument represents the conclusion that the author has reached as a result of their research and analysis. Consider the following examples.
Tip: Read some articles in legal journals and look for where the author previews their argument (usually in the second half of the introduction).
Stating Your Argument
Your argument needs to be previewed in the introduction to your paper. However, your ‘argument statement’ does not need to be expressed in provocative or contentious terms.
- An argument statement can be quite ‘cautious’ – for example: Legal theory is sometimes a neglected area in undergraduate legal education.
- Or it can be provocative – for example: Rape law reform is merely a mechanism by which the liberal, patriarchal state appears to stay in control of what is, in fact, a crisis situation.
- Until you develop confidence as a legal writer, you may prefer to adopt a moderate tone to state your argument – for example: In some regions, entrenched corruption in local police forces makes it difficult to protect the rights of children who have been sold into prostitution.
Whether you adopt a passionate or a cautious tone is a matter of taste. The important thing is that you state what your argument is, and that you support it with authoritative reasons and research evidence.
It can be difficult to take a position on a complex topic – to decide what you think – and students often avoid stating an argument. Instead, they describe what they will do in the paper, or the issues that it addressed:
- This essay will compare the current Australian process with overseas models…
- This essay reviews the various criticisms of the current process…
- In order to determine the adequacy of the current processes we need to consider…
- The nature of the current system raises a number of concerns which are considered in turn…
These are not argument statements because they do not reveal the author’s point of view – they stop short of offering a considered legal opinion: your justified belief, informed by research and evidence, reason and analysis.