Critical Law Essays

Every law student is looking for the secret to writing a good law essay. “What do I need to include?” “How do I organise my ideas?” But most importantly, “how can I get access to the information I need to include quickly, yet efficiently?”

As a general theme throughout your study of the law, you are essentially being asked to assess the journey that the law has taken in each area, not merely to know what the law is. Using the Precedent Map which JustisOne has to offer is particularly helpful for this in that you are able to consider case relationships on a visual basis and make informed decisions about which cases you will prioritise for your research. How does it work? The bigger the size of the circle, the more common relationships between that case and your central case. The ones around the outside of the circle are the citing cases; those that came after your central case which considered it in their judgments. The ones inside the circle are the cited; past cases which your central case considered in its judgment.

 

 

Similarly, Citations in Context is also a great way to explore whether a particular case is on the specific point of law that you are interested in. JustisOne highlights where the case you have selected is mentioned in the judgment. This allows you to read around the section to see how they have linked or distinguished the two cases, enabling you to see how the law has evolved.

 

Furthermore, it is good practice to give a general analysis of a particular area of law before getting into the specifics. For example, ‘the law in this area has become stricter since its statutory codification’ or ‘this area of law has often strived towards achieving fairness’.

Firstly, you need to distinguish between a problem question and an essay question.

I know that with the overwhelming amount of research that law students must do you may be in a hurry when looking at a case. Often details get lost in the process, such as, looking in at an outdated decision of the court when actually a higher court has heard the case and given a different judgment. JustisOne makes this easier by flagging up very clearly that the case has been heard in a higher court, prompting you to treat the decision with care.

 

Problem questions

Introduction: Keep it short and to the point. There is no point trying to give a historical background to a particular area of law if the question provides you with a scenario and asks you to ‘Advise X’. Rather, identify the issues, refer back to the question and say what you’re going to do in this essay. Remember you have limited time in the exam and problem questions are often packed with a variety of issues for you to delve into and implement your analytical skills so don’t spend too long “setting the scene”.

Main body: with problem questions, you should evaluate each issue separately unless they have a clear link. Many academics encourage their students to follow the IRAC guideline: Identify the issues and the relevant legal rules, apply the rules to the issue and then draw a conclusion on the basis of that application. Identifying the issue would be something like ‘X would be liable for assault and battery as he pushed B’. Identifying the relevant rules and application would then be ‘In accordance with X Act, to constitute assault there needs to be intention. Furthermore, in light of X v X intention can be established through a number of ways so even though X may try to claim xxx it is unlikely that he will be able to escape liability’ which would be the conclusion. If a statute governs that area of law, always mention that before the case law as that takes precedence. Don’t waste time writing out a section of an Act, the marker has access to a statute book. If there is a particular word or phrase which you want to emphasise refer to that. Also, always state the strongest claim first and then bring in alternative claims subsequently.

Bloomsbury Law Tutors has suggested that the objective is not just to consider other possible arguments but to consider them and disprove them, in other words, why they are not as credible and have lower chances of success.

Students are often under the mistaken belief that a problem question does not need a closing paragraph, however, this is not the case. An overall conclusion is necessary to draw your points together and to add structure to your answer. A conclusion does not need to be long. It should merely sum up what you have discussed in your essay, without introducing anything new. It should also give an indication on your client’s chances of success.

Essay question

Introduction: it is similar to that of a problem question, except that you must adapt it to the type of essay question it is. As a general theme however, essay questions tend to address some sort of legal controversy around an area of law so it is necessary to do some wider reading, such as, articles and academic opinion so that you have different points of view to discuss.

As suggested by Bloomsbury Law Tutors (http://lawtutors.co.uk/how-to-write-first-class-law-essays/) essay questions can be sub categorised. Focusing on the wording of the question is key. For instance, ‘discuss’ means to critically evaluate both sides of a statement or argument. According to Bloomsbury Law Tutors, this type of question would be classified as a ‘legal theory’ question. Generally, there would be a statement warranting a discussion of its accuracy. In that type of question, you would be splitting your legal authorities to prove both why that statement is accurate and why it is not. A useful aspect of JustisOne that can help you with this is its recognition of search operators. For instance, the statement necessitating a discussion is usually a quote from a judgment. Some may find it beneficial to find the quote and read around it in order to understand more about the context and exactly what the judge meant by saying this. In JustisOne, you can put a statement in quotation marks in the search box and it will bring up the case or cases which mentioned it. Once you click on a case you can then click the pencil icon which will then highlight the search terms you entered, giving you instant access to the specific sections in the judgment.

 

Often you don’t need to recite the facts of a case, merely stating the decision may prove your point. This is where the Key Paragraphs feature on JustisOne is especially useful. You can incorporate these into your essays, outlining the most important aspects of the judgment as they are the most quoted passages in court. If you then click on ‘Highlight all quoted passages’, you will see a heatmap of all the sections of the judgment which have been quoted. The darker the shade of purple, the larger the number of cases that section has been quoted in. Click on the paragraph to see which cases specifically.

 

Higher marks will be gained where there is evidence of critical analysis of the impact of a particular issue on others matters within this area of law. Even though you should provide an evaluation, you shouldn’t be completely neutral, rather, you should indicate your stance throughout the essay but also offering another perspective too.

Another type of essay question would be ones to do with legal reform. The question would typically ask if you think that a particular area of law is in need of reform. In order to answer this well you would need to know the current state of the law as well as the pros and cons to then enable you to assess whether it should undergo reform. Also, knowing previous attempts of reform and solutions would allow you to propose new solutions that would be more effective than previous proposals.

What would also boost your grade is branching out to consider the impact of a particular area of law in terms of its social, political and economic consequences as well as policy considerations.

Often, cases are not only on one niche area of law. Different aspects of the judgment can be used to demonstrate various points in a range of legal contexts. Rather than having to read a whole case to find out which exact areas of law are covered within it, you can just select the Categories tab on JustisOne and a clear list with sub categories will be generated. This could potentially save you time from having to remember three different cases for instance, to indicate different points of law down to a mere one case that may encompass a range of areas.

 

Another type of common essay question is legal history, prompting a consideration of the development in a particular area of law over a certain period. An example would be ‘has the law in X strived towards achieving flexibility between X and X date?’. This also requires critical analysis. In order to explore an area of law on JustisOne you can select a category and you will be directed to an analytics graph which provides you with a visual format on the progression of the law over a period of time. If there have been any seminal cases at a specific point in time you will see a spike on the graph, instantly representing a significant development.

 

Overall, it is important to pay attention to the wording of any given question and focusing on the bigger picture of what is asked rather than trying to steer something in the direction you wished it had gone. In the words of Mad Men’s finest, Don Draper ‘make it simple, but significant’.

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It is common for feedback on student writing to focus on the need to engage more critically with the source material. Typical comments from tutors are: ‘too descriptive’, or ‘not enough critical analysis’. This study guide gives ideas for how to improve the level of critical analysis you demonstrate in your writing. Other study guides you may find useful are: What is Critical Reading?Using Paragraphs and The Art of Editing.

What is critical writing?

The most characteristic features of critical writing are:

  • a clear and confident refusal to accept the conclusions of other writers without evaluating the arguments and evidence that they provide;
  • a balanced presentation of reasons why the conclusions of other writers may be accepted or may need to be treated with caution;
  • a clear presentation of your own evidence and argument, leading to your conclusion; and
  • a recognition of the limitations in your own evidence, argument, and conclusion.

What is descriptive writing?

The most characteristic features of descriptive writing are that it will describe something, but will not go beyond an account of what appears to be there. A certain amount of descriptive writing is needed to establish for example:

  • the setting of the research;
  • a general description of a piece of literature, or art;
  • the list of measurements taken;
  • the timing of the research;
  • an account of the biographical details of a key figure in the discipline; or
  • a brief summary of the history leading up to an event or decision.

The difference between descriptive writing and critical writing

With descriptive writing you are not developing argument; you are merely setting the background within which an argument can be developed. You are representing the situation as it stands, without presenting any analysis or discussion.

Descriptive writing is relatively simple. There is also the trap that it can be easy to use many, many words from your word limit, simply providing description.

In providing only description, you are presenting but not transforming information; you are reporting ideas but not taking them forward in any way. An assignment using only descriptive writing would therefore gain few marks.

With critical writing you are participating in the academic debate. This is more challenging and risky. You need to weigh up the evidence and arguments of others, and to contribute your own. You will need to:

  • consider the quality of the evidence and argument you have read;
  • identify key positive and negative aspects you can comment upon;
  • assess their relevance and usefulness to the debate that you are engaging in for your assignment; and
  • identify how best they can be woven into the argument that you are developing.

A much higher level of skill is clearly needed for critical writing than for descriptive writing, and this is reflected in the higher marks it is given.

Finding your academic voice

When you engage in critical writing you are developing your own academic voice within your subject. Wellington et al. (2005, p.84) offer some suggestions for distinguishing between the academic and the non-academic voice. They suggest that the academic voice will involve:

  • “healthy scepticism … but not cynicism;
  • confidence … but not ‘cockiness’ or arrogance;
  • judgement which is critical … but not dismissive;
  • opinions … without being opinionated;
  • careful evaluation of published work … not serial shooting at random targets;
  • being ‘fair’: assessing fairly the strengths and weaknesses of other people’s ideas and writing … without prejudice; and
  • making judgements on the basis of considerable thought and all the available evidence … as opposed to assertions without reason.”

Wellington J., Bathmaker A., Hunt C., McCulloch G. and Sikes P. (2005). Succeeding with your doctorate. London: Sage.

Try to get into the habit of writing critically, by making sure that you read critically, and that you include critique in your writing.

Stringing together of quotes

It can be tempting to string together quotes to support an argument, feeling that the more quotes you include, the stronger your argument. It is important, however, to remember that you also need to interpret the quotes to the reader, and to explain their relevance, discuss their validity, and show how they relate to other evidence.

Strategic use of paragraphs

There are several ways in which you can use the paragraph to enhance your critical writing.

You can use paragraphs to make a clear and visual separation between descriptive writing and critical analysis, by switching to a new paragraph when you move from description to critical writing, and vice versa. This can help in:

  • emphasising to the reader that you are including both description and critical analysis, by providing a visual representation of their separation; and
  • pushing you to produce the necessary critical writing, especially if you find that your description paragraphs are always longer, or more frequent, than your critical analysis paragraphs.

A paragraph break can provide a brief pause for your readers within a longer argument; giving them the opportunity to make sure they are keeping up with your reasoning.  Paragraphs that are overly long can require readers to hold too much in their mind at once, resulting in their having to re-read the material until they can identify the point you are making.

You can also use paragraphs to push yourself to include critical writing alongside descriptive writing or referencing, by considering each paragraph almost as an essay in miniature. Within each paragraph you would:

  • introduce the point you want to make;
  • make the point, with supporting evidence;
  • reflect critically on the point.

If it’s worth including, it’s worth telling us why

A certain amount of descriptive writing is essential, particularly in the earlier parts of the essay or assignment or dissertation. Beyond that, however, there is a danger that too much descriptive writing will use up valuable words from your word limit, and reduce the space you have for the critical writing that will get you higher marks.

A useful habit to get into is to make sure that, if you describe some evidence relevant to your argument, you need then to explain to the reader why it is relevant. The logic of your explanation contributes to the critical component of your writing.

So, a sentence or two might describe and reference the evidence, but this is not enough in itself. The next few sentences need to explain what this evidence contributes to the argument you are making. This may feel like duplication at first, or that you are explaining something that is obvious, but it is your responsibility to ensure that the relevance of the evidence is explained to the reader; you should not simply assume that the reader will be following the same logic as you, or will just work out the relevance of the quote or data you have described.

Line of argument

So far this study guide has considered the detail of what you write. The other key element in critical writing is the overall structure of your piece of writing. For maximum effectiveness, your writing needs to have a line, or lines of argument running through it from the Introduction to the Conclusion.

Just as you have used paragraphs on a micro scale to present your critical writing, so you need to consider the ordering of those paragraphs within the overall structure. The aim is to lead your readers carefully through the thread of your argument, to a well-supported conclusion.

Example of effective critical writing

The text below is an example of good critical writing, and is based on essay material supplied by University of Leicester’s School of Psychology.

The author refers to the available evidence, but also evaluates the validity of that evidence, and assesses what contribution it can realistically make to the debate.

There are a number of inherent methodological difficulties in evaluating treatment efficacy in this area, and this has contributed to controversy within the research literature surrounding treatment outcomes for this group of offenders (Marshall, 1997). Firstly, while there is no doubt that the primary criterion of treatment success is a reduction in the rate of re-offending (Marshall et al., 1999), reconviction data does not, in isolation, provide a realistic representation of actual levels of re-offending by this group. It is well established that there is a discrepancy between re-offending and reconviction rates: the latter underestimating the number of offences committed (Grubin, 1999). Indeed, a significant proportion of offences committed by offenders are either unreported, or do not result in the offender being convicted (Abel et al., 1987).

You can see how the author is considering the available evidence, but also the limitations on that evidence, and will be taking all of this into account in drawing conclusions.

Checklist for an overall review of your writing

It is always worth taking a critical look at your own writing before submitting it for assessment. The kinds of questions that might be useful to ask at that stage are:

What is the balance between descriptive and critical writing?

While a certain amount of description is necessary to set the context for your analysis, the main characteristic of academic writing is its critical element. A useful way to check this balance in your own writing is to use two coloured pens and to mark in the margin whether the lines are descriptive or critical. The balance will change at different points, but you need to make sure there is enough of the colour that represents critical writing.

Why should the reader be convinced by what I’ve just written?

Remember that, just as you are asking ‘Why should I believe what I’ve just read?’, the readers of your work will be asking the same question of your writing. A critical read through your own writing may reveal gaps in your logic, which you can rectify before you submit it for the critique of others.

Is my conclusion trailed and supported sufficiently well by my preceding analysis and argument?

Check out the conclusions that you have drawn, then locate and check the supporting evidence you provide earlier on. This is a good way of making sure you haven’t forgotten to include a crucial piece of evidence. It is also a way of checking that, when your reader comes to the end of your writing, the conclusions make sense, rather than being a surprise, or an unconvincing leap of logic.

Have I included any unsubstantiated statements?

Sometimes a generalised, sweeping statement can slip through: the kind of statement that might be acceptable on conversation, but not in academic writing. There are three main ways of dealing with such statements:

  • present the evidence to support the statement
  • re-phrase the statement to sound more cautious e.g.: ‘it could be argued …’ or ‘this suggests that …’
  • remove the statement

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