How to Formulate Arguments
How exactly do you argue? How do you craft an argument? Many law students find it hard to create compelling arguments when drafting essays, dissertations or even doctoral theses.
Well, first, you need to focus on the subject at hand. What is the essay about? Reforming tort law? Examining the impact of the European Convention of Human Rights on the right to privacy? Assessing the limits of the royal prerogative? You need to first focus on the subject, so that you can understand it.
Then, what exactly are you being asked to do? Critically evaluate? Assess? Are you given an essay prompt and asked to "discuss"? Depending on what you are being asked to do, you change your approach. Still, to be honest, there is not a huuuge amount of difference between these prompts. At the end of the day, whatever essay you are being asked to produce, you need to be "critical". You also need to be argumentative. No summative assessment at a top Uni will ask you to simply describe something. Therefore, always be ready to produce top quality stuff, whatever the prompt.
Let's now come to the (in)famous Oxonian "Discuss" that usually comes after long and cryptic essay prompts. Here, the first step is to read the quote, spot the keywords and then find your angles of attack.
Not all words are created equal. Some are more "equal" than others. You need to spot them in the essay prompt and dissect them by carefully defining them. Your definition will also allow you to define (and cleverly limit) the scope of your essay. For instance, in a prompt about effective judicial protection, you can define the latter by limiting it to domestic and not international courts, and then say that "effectiveness" will be approached from the perspective of the citizens and not the State. This is a reasonable way to both define and limit the scope of the essay.
Still, the best piece of advice I have given my students is about the assumptions underlying an essay question or an essay prompt. Hundreds of my students have repeatedly told me how this piece of advice singlehandedly revolutionised the way they approached essay writing and made their marks skyrocket.
The recipe is simple. Every essay question you have ever encountered rested upon a set of (implicit) assumptions. For instance, if the question is "To what degree does the HRA 1998 reflect the content of the ECHR?", this assumes that it does reflect the content, and simply asks to what a degree. Similarly, a question on "How has the Francovich principle of state liability for the breach of EU law affected the effectiveness of EU law implementation?" makes various assumptions. One, that there is such a coherent principle in the ECJ's case law. Two, that this principle has affected, to a certain extent, EU law effectiveness, and you are being asked to merely ascertain the “how” and not the “if”. Third, that EU law effectiveness is an EU law principle which has something to do with EU law implementation.
Great! So, now you know what the assumptions are. What are you to do with this knowledge? First, you need to point them out! You need to show the marker that you did not shift straight into "answer mode", but you tried to look behind the question and unpack its hidden and implicit assumptions. This shows that you are meticulous and you paid a lot of attention to the question. Very few, if any, of your fellow examinees will have done this. Take advantage of it and stand out!
Second, you need to engage with these assumptions. Don't just point them out, tell the reader what you think about them! Are they reasonable? Do they make sense? Are they self-evident? If yes, then explicitly endorse them. Say you agree, you accept them, and that's the only reason why you are now going to jump into answering the question exactly as it was posed. However, more often than not, there will be some sort of controversy in these assumptions. One or more of them will not be self-evident, and might even be highly contested. Perfect! Now you have found your first target! Attack it with all your might. Remember: you have found a target that most, if not all, of your fellow examinees have missed! Merely by attacking it after you identified it, you are gaining marks. You start your essay writing being one step ahead of everyone from the very beginning.
Then, depending on whether the assumption you identified is reasonable or not, the way forward can take various directions. One of the bet scenarios for you is that the assumption is unreasonable and not easily defensible. This means your attack will be successful. With a series of solid arguments, backed up by footnotes citing primary and secondary sources, the assumption will collapse. This means that you have started off with a victory, since you are now going to be able to demonstrate that there is a single most persuasive answer to the essay question,and the reason is that one of its assumptions is flawed, and therefore the only real answer lies with your arguments. Attacking assumptions can be very rewarding, especially if they collapse. Still, even if they don't, even if they prove sturdy and, after scrutinising them, you conclude that they are valid assumptions, you will be one of the select few who took the time to wrestle with the assumptions before concluding that they actually hold water. Having done your "background check", you can now proceed to answer the actual question.
Long story short: in your essay introduction, always paraphrase and argue, always identify the keywords and always look for implicit assumptions and try to challenge them!