Assessment Essays Exercises JD Students Legal Writing MLM Students

Handling Counter-arguments in Legal Essays

What are counter-arguments?

Counter-arguments are arguments that are counter (opposed) to your own arguments. For example, you might be writing an Employment Law essay that argues gig economy workers (e.g. Uber drivers) should be entitled to the Australian minimum hourly wage.

Why should I include counter-arguments in my essays?

Engaging with ideas that are opposed to your own will not only demonstrate that you thoroughly understand the scholarly debate on your topic, it will also provide you with an opportunity to strengthen your own contention by undermining and framing those counter-arguments to your own advantage.

For example, imagine you are writing a Discrimination Law essay, and your main argument is that international postgraduate students should be eligible for concession public transport fares in Victoria. However, a well-known Discrimination Law scholar called Dr Meenhardt has argued the opposite. He claims that, compared to local postgraduate students, international postgraduate students are wealthy and therefore don’t need ‘financial subsidies from the Victorian Government’.

Rather than ignoring Dr Meenhardt’s argument in your essay, you can instead handle it in a way that makes your own argument look even more convincing! Some techniques for doing this include:

  • Devaluing the counter-argument → Critiquing the counter-argument’s premise, reasoning, or the evidence underlying it
  • Reframing the counter-argument → Presenting the counter-argument in a way that makes it support your own argument instead
  • Distinguishing the counter-argument → Explaining that while the counter-argument may be (or may have been) true for a certain set of facts, the situation you are discussing is different and the counter-argument therefore does not apply
  • Cautioning the reader → Telling the reader that accepting the counter-argument would have negative implications or result in undesirable consequences

Below are four examples of how you could spin Dr Meenhardt’s counter-argument to your persuasive advantage. Can you match each example with the technique being used? Label the examples by dragging the corresponding technique from the bottom, then click the Check Your Answer button.

4 Golden Rules for Handling Counter-Arguments

  1. Always present your own arguments before mentioning any opposing arguments. This will ensure that your reader is predisposed to agree with your arguments, because you’ve spent time convincing them why you’re correct before they’re even introduced to any sources that say you aren’t.
  2. While you should always include some counter-arguments in your essay, make sure not to give them too much oxygen. In other words, don’t spend too long outlining opposing arguments at the expense of making your own arguments! Try to mention and then dispose of any counter-arguments as quickly and decisively as possible.
  3. Only select the strongest, most well-known or most plausible counter-arguments to engage with. Ask yourself:
  • If I leave this counter-argument out of my essay, is my reader likely to notice and be concerned about this omission?
  • If I were presenting my arguments at trial, which of my opposing counsel’s counter-arguments would be the most dangerous to mine?

That said, don’t make up some weak or zany argument just for the sake of including a counter-argument in your essay—that will just make you look silly (and will also undermine your contention). If you aren’t aware of any valid arguments against your position, do some more research and consult with your teacher.

  1. Don’t just mention counter-arguments: shoot them down! Use one of the techniques from the previous section, or find some other way to devalue the counter-argument in a way that strengthens your own persuasiveness.

Where can I include counter-arguments in my essay?

As long as you make your own arguments first, where you include any counter-arguments is up to you. For example, you could deal with them at the conclusion of each essay sub-section, like so:

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Alternatively, you could devote a brief sub-section to counter-arguments just before your essay’s conclusion:

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Or, if the counter-argument can be dealt with quickly, you could also dispatch it in the course of a single paragraph. The following sample paragraph is from a Sports Law essay which argued that doping is a cultural problem in sport, rather than the fault of the individual athletes who choose to dope. The counter-argument is in green text.

Doping combines ‘extreme temptation with extreme danger’.1 And while it is true that performance-enhancing substances are only effective if athletes are willing to take them in the first place, it can also be argued that athletes are the people least well-placed to make sensible long-term decisions about their bodies. Elite sportspeople are often young, impressionable and surrounded by coaches, trainers and teammates demonstrating a win-at-all-costs mentality. Doping can also be endemic and accepted within a sport’s internal culture. Gold medal-winning cyclist and convicted doper Tyler Hamilton, for example, described his first experience with performance-enhancing drugs as a ‘rite of passage, an invitation to the big time’.2

You can and should experiment with the placement of counter-arguments in your essay. Just remember that what works for one essay may not work for another! You’ll know you’ve succeeded in adeptly handling counter-arguments when your reader, after being presented with those counter-arguments, is even more persuaded that your position is correct.

 

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