Remember to argue! – Guest post by Professor Mark Elliott
It is an honour for me to welcome Professor Mark Elliott, Chair of the Faculty of Law at the University of Cambridge, to my blog.
Professor Elliott is Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge, and a Fellow of St Catharine's College, Cambridge. From 2015 to 2019, he served as Legal Adviser to the House of Lords Select Committee on the Constitution, providing advice to the Committee on a range of legislative and other matters. He co-founded the international biennial Public Law Conference series and co-convened the first two conferences. He is the recipient of a University of Cambridge Pilkington Prize for excellence in teaching and is the author of a widely read blog, Public Law for Everyone, that is aimed at public law scholars, current and prospective law students, policy-makers, and others who are interested in the subject. I have personally found his blog to be highly instructive and would urge all those interested in public law to read it.
Professor Elliott’s post below is full of invaluable insights on legal essay writing, and especially for the need to be argumentative. I hope you enjoy reading it.
Writing a Law essay? Remember to argue!
by Professor Mark Elliott
Providing advice in the abstract about how to write Law essays is difficult because so much depends on the nature of the question you are answering. It’s also important to take into account whatever are the expectations for your particular course, degree programme or university. Nevertheless, a useful rule of thumb, I think, is that a good Law essay will normally set out and advance a clear thesis or argument. (Note that I’m referring here to essays as distinct from problem questions: the latter call for a different approach.)
The need for an argument
Some answers explicitly call for this. Take, for example, the following essay title:
‘Do you agree that parliamentary sovereignty is the most important principle in the UK constitution?’
Here, the question itself in effect advances an argument — that parliamentary sovereignty is the most important principle in the constitution — and invites you to say whether you agree with it or not. And in saying whether you agree, you need to advance your own argument: ‘I agree with this because…’. Or: ‘I disagree because…’. Or even (because if the question advances a position that you think implies a misconception, oversimplification or false premise, you can say so): ‘I will argue that the question oversimplifies matters by assuming that a particular constitutional principle can be singled out as uniquely important…’
Other questions may indicate in a less direct way the need for you to put forward your own argument. For example:
‘“Parliamentary sovereignty is the most important principle in the UK constitution.” Discuss.’
Here, we don’t have a ‘do you agree?’ prompt; instead, we have the apparently less directive ‘discuss’ prompt. If we read the question literally, it may seem that there is no need for you to put forward your own argument here. After all, it’s possible to ‘discuss’ something without advancing your own argument about it: you could make various points, explain various matters, and leave the reader to make up their own mind. But while this may be formally true, it’s unwise to read the question in this way, because it creates the risk that you will end up writing something very general and descriptive on the topic without going any further.
To summarise, then, there are at least three reasons for making an argument part of your essay. First, the question will often call for this, whether explicitly or implicitly, such that you wouldn’t be answering the question if you didn’t set out and develop an argument. Second, if you don’t impose on yourself the discipline of articulating and defending an argument, you risk underselling yourself by writing something that is descriptive and meandering rather than purposefully constructed. Third, setting out and developing an argument involves taking ownership of the material. By that, I mean using the material in way that serves the purposes of your argument, showing that you are in command of it and that it is not in command of you. This, in turn, provides an opportunity to demonstrate a level of understanding that it would be hard to show in a descriptive essay that simply wandered from point to point.
Setting out your thesis
If putting forward an argument is (often) important or necessary, how should it be done? There are no great secrets here: the formula is straightforward. You should begin your essay by stating your thesis — that is, by setting out what it is that you are going to argue. This should be done in your introductory paragraph — by the time the reader reaches the end of that paragraph, they should be in no doubt about what you are going to argue. Imagine, for instance, that you are presented with the following essay title:
‘“The courts have expanded their powers of judicial review beyond all acceptable constitutional limits in recent decades; it is time to clip the judges’ wings.” Discuss.’
In response to such a question, it might be tempting to say in your introduction that (for example) you are going to ‘show’ how the courts’ powers of judicial review have grown, ‘consider’ why this has happened and ‘examine’ the criticisms of judicial over-reach that have resulted. These are all perfectly sensible things to do when writing an essay on this topic, but if that all you say in your introduction, you will leave the reader wondering what you think — and what you are going to argue. In contrast, an introductory paragraph that lays the foundation for essay that properly advances a thesis will set out what that thesis is. You might, for instance, take each of the propositions set out in the question and stake out your position:
‘In this essay, I will argue that (a) while the courts’ powers of judicial review have grown in recent decades, (b) it is misguided to suggest that this has breached “all acceptable constitutional limits” and (c) that those who now advocate “clip[ping] the judges’ wings” misunderstand the role of the judiciary is a rule of law-based constitution. In other words, the courts’ judicial review powers are entirely appropriate and those who seek to limit them risk undermining the rule of law.’
An introduction of this nature would achieve two things. First, it would make clear to the reader the position you proposed to take. Second, it would immediately lend the essay a structure.
Developing your thesis
Once you have set out your thesis in the introduction, you need to develop or defend it. This will involve making a series of connected points in successive paragraphs, each of which relates to your overarching thesis. One way of thinking about this is that the individual points you make in the main body of the essay should all relate or point back in some way — and in a clear way — to the position that you staked out in the introduction.
In the example introduction above, the overarching thesis is set out in the second sentence; the individual and connecting parts of the argument are set out in propositions (a), (b) and (c) in the first sentence. One approach, therefore, would be to divide the answer, once the introduction has been written, into three parts, dealing in turn with points (a), (b) and (c). Naturally, as you work through the various parts of your argument, you will need to cite relevant evidence (cases, legislation, literature and so on) in support of your argument. You will also need to deal with matters that appear, at least at first glance, to sit in opposition to your argument (on which see further below) or which, once properly considered, require your argument to be refined.
A key point, however you proceed, is that the reader should also be clear about how each successive point relates not only to the previous point but also to the overarching argument. The reader should never be left wondering ‘Where does this fit in?’ or ‘Why am I being told this?’ A simple way of avoiding these problems is to signpost, by saying at the beginning of each section how it relates to the overall argument. The flipside of this coin is that you should avoid saying things like ‘Another point is that…’ since this gives the impression, rightly or wrongly, that the various points in your essay have been thrown together in a random order, with little thought as to how they fit together or relate to your overall argument. Even if that’s not the case, you don’t want to risk giving the reader that impression.
A one-sided approach?
The advice set about above might seem to imply that I’m suggesting you write one-sided essays — in which you set out points that support your argument while ignoring those that don’t. However, that’s not at all what I’m suggesting. In order to set out your argument in a persuasive manner, you need to deal both with relevant points that support your argument and with relevant points that appear to challenge your argument — and, in dealing with the latter points, you need to show why they do not in fact fatally undermine your argument. In other words, the approach I’m suggesting here doesn’t mean that you should adopt a blinkered approach, paying no attention to counterarguments: rather, you need to deal with them in a way that shows that, having thought about and weighed them in the balance, you are in a position to show why your argument stands in spite of them (or why your argument can be adapted in a way that accommodates such points).
All of this points towards a further matter: namely, that advancing an argument in your essay does not mean that you need to (or should) be argumentative in the sense of adopting a strident tone that brooks no debate or compromise. Rather, advancing an argument in the way I’ve suggested here means being thoughtful and persuasive: taking the reader with you on a journey that demonstrates that you have looked at the relevant material, carefully thought through the issues raised by the question, and arrived at a view that you are able to justify and defend through well-reasoned and suitably evidenced argument.
So what about your conclusion? If you’ve followed my advice above, it should more or less write itself. People often agonise over conclusions, perhaps thinking that there has to be some ‘big reveal’ at the end of their essay. But there doesn’t need to be — and indeed there shouldn’t be — any big reveal. There should be no surprises at the end precisely because you’ve set out your argument at the beginning and spent the rest of the essay carefully constructing the different strands of your argument. The conclusion is an opportunity to draw those stands together, but no-one should have to wait with baited breath for the conclusion before finally realising: ‘Ah, so that’s what they think!’ If that’s the effect of your conclusion, it means there’s something wrong with the introduction!
