Writing your Legal Theory Essay: Strategies for Success

Note: this post is largely based on materials prepared by Chantal Morton for her workshop ‘Advice for a Legal Theory Paper’ (20 September 2016).

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You’re eight weeks through second semester and the outline of your Legal Theory essay is due to be submitted to your lecturer. Worth 45% of your final mark, this essay is an important piece of assessment– and will require you to deploy skills not necessarily engaged in your first semester subjects.

Unlike Dispute Resolution or Torts, where you would have been expected to engage with cases, legislation, journal articles and law reform materials to respond to a specific prompt (i.e. ‘what are the pros and cons of online dispute resolution?’), Legal Theory asks you to engage with much broader normative and analytical issues – like the concept of law and its role in contemporary society. In doing so, you will be expected to draw on the work of a range of legal theorists from the core readings and beyond, and demonstrate a sophisticated understanding of complex concepts and arguments.

The novelty of the assessment (at least relative to your experiences so far) might mean that this essay comes as a challenge – so the LASC developed this guide to assist you.

The post is structured in two parts: the first part will briefly summarise the “formal” staples of an excellent legal essay you should be familiar with from last semester. The second part will explore the unique requirements of the Legal Theory essay and provide tips and strategies to maximize your chances of understanding the task requirements and approaching the essay with confidence.

Let’s begin.

 

Part I: Stapes of an Excellent Legal Essay

Every excellent legal essay will have similar qualities that are dealt with by other LASC Materials (See Legal Essays – Understanding Your Task; The Guide to Academic Success – Chapter 6: Writing Assignments for Law*). These include:

  • An introduction that succinctly states their contention and provides a ‘road map’ of their essay;
  • An effective and convincing argument that is supported by appropriate analysis of relevant sources, consistently developed across the paper and addressing counter-arguments;
  • A clear and logical structure;
  • Precise and formal language; and
  • Good grammar and punctuation

You will be expected to conform to these writing conventions for legal theory. A good way of ensuring that you do address all of these criteria is to use the checklist for legal essay writing contained in chapter 11 of the Guide to Academic Success in conjunction with the advice contained in Part II of this post.

 

Part II: Requirements Unique to Legal Theory

As prefaced above, your essay will require you to interpret and evaluate the theories of key jurists, and ultimately make an argument based on, or in response to, those theories or concepts.

Unlike DR and Torts, substantial research is not required in your essay (although wide reading is always likely to benefit your understanding)You are being assessed on the depth of your understanding of a range of complex concepts and ideas, and your ability to develop and justify a reasoned argument in response to a specific prompt. You should therefore spend time you would otherwise invest trawling Austlii and WestLaw, on reading (and re-reading) relevant texts, and developing your knowledge of the core theoretical concepts and debates relevant to your topic. Where appropriate, this may include background reading of textbooks and wiki entries to establish the key issues and theorists engaged in a particular debate. You should then concentrate on the ‘primary’ sources for legal theory – the original texts of the theorists you will analyse. .

When it is time to start writing, remember that your argument in Legal Theory will make a normative or analytical claim, as opposed to a causal or empirical claim, where your claims are more pragmatic. Examples of both are provided below:

Logical claim: People should obey laws only insofar as they conform to moral requirements (broad/normative)

Empirical/causal claim: Online dispute resolution has increased access to justice in Europe through the Small Claims Procedure and so should be introduced in Australia if and when possible (practical)

Now for those tips we said we’d provide:

 

Tip #1: Don’t forget to have an argument!

The Legal Theory essay requires you to understand, in a precise and rigorous way, the theories and concepts of your chosen theorists, but that’s only one part of the assessment. A common pitfall that students fall into is providing a very comprehensive overview of their chosen theorists and concepts, without subjecting those ideas to critical analysis and argument.

One simple but effective way of avoiding this trap is to use black font for descriptive sentences; and red font for sentences that are analytical or argumentative.

A good rule of thumb is that your essay should be at least two thirds should be comprised of argument/analysis.

 

Tip #2: Don’t argue in a vacuum

A lot of the theories, questions and debates you will engage with are decades (or even centuries) old. Don’t attempt to re-invent the wheel. Find out, and draw on, the thinking that others have done before you, rather than attempting to reason ab initio. Your analysis of that thinking – identifying the valuable insights and important advances – ensures that your argument is ‘original’ and reflects your own work. It is not expected that the primary ideas in your essay are genuinely ‘original’..

 

Tip #3: Define technical terms

Many theorists develop specific terms and phrases to describe complex concepts and ideas in their theories. Use this language precisely and accurately and be sure to communicate your interpretation of technical terms to your essay reader. You’ll also likely find that describing a technical term in your own words will strengthen your understanding of your argument.

 

Tip #4: Focus on justifying your argument

As alluded to above, you’re being assessed on your depth of understanding of key materials and concepts pertinent to the prompt you’ve chosen. That depth of understanding is demonstrated through the concise, logical presentation of an argument, rather than through direct exposition. Thus, what you leave out of your essay is just as important as the points you include – selecting relevant points is critical. Present your argument in full and only rely on materials that are relevant.

Do not try to reference every theorist covered in your materials (or every concept of a particular theorist). If you do, your teacher will (rightly) conclude that you’ve missed the point of the essay.

 

Tip #5: Show your workings (and references!)

The theories you’re dealing with are complex. For that reason, arguments and conclusions based on (or challenging) those theories should be expressed clearly, concisely and logically. Do not assume that your teacher can follow your leaps of logic.

For the same reason, you would always provide pin-point references for assertions. The theories you’re interpreting often lack consensus, and your reader may wish to check where you’re sourcing your arguments.

 

Tip #6: Spend time organizing your paper

Given the nature of some of the concepts you’ll be analyzing, it’s important to impose structure on your paper. Like any good essay, your paper should be broken into several sections with headings and even sub-headings expressing your main contentions. A poetic stream of consciousness is not appropriate. Remember, however, that a sentence or two is not a section, and that section breaks will not ‘mask’ gaps in logic or lack of connections between points.

 

Tip #7: Don’t over quote

In your essay you should be paraphrasing, summarizing and directly quoting theorists where appropriate. Take care not to over-quote though; long direct quotes should be used very sparingly as they detract from your analysis. It should not be necessary to present a ‘block’ (indented) long quote in an essay of 2,000 words.

 

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