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Writing legal essays

By Richard Scragg, from Legal Writing: A Complete Guide for a Career in Law (LexisNexis, 2014)

One of the fundamental exercises students studying law — and not just law — at university will be confronted with is the writing of essays. Writing an essay is your opportunity to demonstrate your scholarship and you should approach essay writing with this idea firmly in view. Essays may be set as assessments in their own right, outside exams, and they can also appear as questions in exams. There are some differences between the exam essay and the non-exam essay (these will be discussed in Scragg Legal Writing 4th ed (LexisNexis, Wellington) 2014, chapter 4) but both types of essay share certain characteristics as will become apparent.

We may ask the question: why are students asked to write essays? The answer is that the essay is a valuable way of assessing a student’s ability to organise his or her mind and write a logically arranged expression of ideas and arguments demonstrating the student’s appreciation of that knowledge. A well-written, well-reasoned essay is a powerful document. It goes without saying that to write a good essay you must acquire knowledge of the subject you are going to write about, you must understand and observe the conventions of essay writing and you must be able to write clear, grammatical, idiomatic English.

 

The essay question

Whether you are asked to write an essay as a coursework assessment or as part of an exam or test, the starting point must always be the question posed. Begin by reading the question carefully, making sure you are clear about what is required. Look for key words; take notice of any quotation. Consider this example:

In C v Holland [2012] 3 NZLR 672 (HC) Whata J determined that there exists at common law in New Zealand a tort of intrusion upon seclusion. Discuss how Whata J was legitimately able to do this within the New Zealand legal system, given what he refers to in para 76 of the judgment as “[T]he call for strict adherence to the constitutional (and functional) roles of Parliament and the judiciary”.[1]

Here we have a question concerning a statement in a judgment of Whata J. It contains a quotation from the judgment and it tells you what you are required to do: it says “Discuss” so you are required to present a discussion. What does this mean? Any essay question, whether in an exam or otherwise, will tell you the form your answer is to assume. Always look for what the question is asking of you and comply with it. There are a number of terms used to indicate what is required.

Discuss.
This is a very common form of direction to you. Where you are asked to “Discuss” something, write your essay as a discussion. That is to say, consider all the aspects of the matter you are to discuss and present arguments and counter-arguments concerning that matter. Do not write a one-sided account — examine the entire matter. A “Discuss” question is asking you to be analytical in your answer, so do not be merely descriptive. Questions of this kind will always allow of a range of points of view and it is this that gives you the opportunity to demonstrate your scholarship. Present the points of view, name the scholars who have devised the arguments, refer to case names — known as authorities — where you are presenting arguments based on principles of law. The question is often asked by students to what extent they should present their own ideas. You should present your own ideas but show how those ideas are grounded in the established scholarship on the subject; that is to say, are drawn from the writings of authors whom you name. For questions of this kind there is no “right” answer; rather, there will be a range of possible answers and it is up to you to present a convincing argument, based on published writings, to persuade your marker in favour of what you are saying.

Explain.
If you are asked to “Explain” a proposition, perhaps concerning a constitutional or common law doctrine, write your answer as an explanation, laying out the key points involved.

Compare.
This is asking you to liken one thing to another and discuss the similarities and differences between them.

Contrast.
This is asking you to demonstrate differences between things so you need to point out what the differences are.

 

Relevance

It is always essential that you write a relevant answer, and relevance concerns both the substantive content of your answer and compliance with the type of answer required: a discussion, an explanation, a comparison, a contrast and so on. Do not simply write out all you know on the topic; instead, mould your knowledge to fit the question in all respects. In doing this, do not assume you must agree with propositions expressed in the question. Take, for example, the question:

“Judicial activism is not in accordance with the traditions of the common law.” Discuss.

The person setting this question might well be of the view that judicial activism is something deeply rooted in the traditions of the common law. If that is also your view, you should write your essay accordingly, setting out the arguments both for and against (you are asked to “Discuss” the quotation) judicial activism but drawing your conclusion in favour of it being in accordance with the traditions of the common law, having demonstrated in the essay how it does not offend against those traditions.

If the question contains a quotation, do not ignore it, it is not there as “window-dressing” but serves a purpose. Refer to it in your essay. Again, you do not have to agree with it and if you do not agree with it, set out the arguments which run counter to it, naming authors and cases.

As you write your essay, avoid assertions and present arguments instead. It is no good simply asserting, for example, that judicial activism is not in accordance with the traditions of the common law: present arguments which show that it is not in that tradition

 

[1] A question set for students enrolled in LAW443 Introduction to Common Law at the University of Auckland for exchange students from non-common law jurisdictions.

 

For more on essay writing see Scragg Legal: A Complete Guide for a Career in Law 4th ed (LexisNexis, 2014), chapter 4. Buy the book here.