7.4 Constructing your essay: putting the pieces together

This is the most important part of the process – the stage where you start writing your essay. In order to start writing you need to have a sense of what you want to say, what you need to say and how you will say it. To unpack these tasks, in this section we discuss the importance of:

• relevance – answering the question
• structure – presenting your content in an orderly way
• using your research fairly but creatively
• independent thinking
• argument – giving clear and cogent reasons to support your answer.

7.4.1 Answering the question: the importance of relevance

Your essay must answer the question. Whatever that question is, you must answer it and not a question that was not asked. This is the matter of relevance: what you say is relevant to the question or topic when it answers the question posed or is part of the build-up to answering that question. Answering the question actually posed (rather than the question that you wish had been posed or that you mistakenly thought was posed) is essential to writing a successful essay. Doing so shows insight into the scope and nature of what the question requires. It also shows that you are aware of, and responding to, the needs of your audience. A document that does what is asked of it displays a clear understanding of its audience and the relationship between the author and the audience. This means your document is doing its communicative job effectively.

7.4.2 Answering the question in an orderly way: the importance of structure

To present your answer to the question effectively, you need to do things in an orderly way. This means that your document should have a clear, comprehensible and appropriate structure that is quickly apparent to your reader. This way the different parts of the document have a clear interrelationship and your reader is led in a logical way, stage by stage, through the various issues.

Exactly what structure is appropriate for any given essay depends on the particular case, so we do not try to lay down even a generic suggested essay structure here. Nonetheless, most essays will have clearly discernible parts, with each part performing a distinct function, such as providing background, presenting an argument, laying out a rival position, mounting a defence and so on. It is usually best if one basic function is being performed by each discernible part, so that the reader can easily follow what is happening at any particular stage.

7.4.3 Understanding the fruits of your research: the importance of using your research fairly but creatively

It is not enough to just gather good quality materials in your research. You need to show that you understand what you have gathered. This means it is essential that, where appropriate, you clearly, accurately and fairly expound the relevant materials. This goes hand in hand with showing that you understand what the essay’s core and derivative issues are and how the various texts and sources you have gathered connect with them. So, you show the breadth and depth of your insight into the relevant issues at the same time as you show your understanding of materials you have researched, including their contexts and implications.

This underscores the very important point that your essay is not a ‘research report’ in which you tell your reader about the things you found in the course of your research. You need to use the material you find in your research in ways that advance your essay. This means deploying the material in ways that serve your argument. Your primary goal is to persuade the reader of the position you adopt in your work and that it is a position to be taken seriously. Research will be necessary to help you persuade the reader. But that research is just a step toward this goal; it is a tool or a means to an end, not the end itself. So, the fruits of your research need to be intelligently sorted and analysed, and appropriately deployed to help the essay achieve its purpose. This means that you need to ‘put your own stamp’ on what you put into your essay. There will always be some level of creativity involved in how you choose to deploy the material gathered in your research.

Note that the point of research is not simply to find documents that support what you want to say, to be used as ‘back-up’. In your research you will usually find opposing views and views which are simply different to the line you are presenting in your essay. Do not ignore such sources. Very often these will be very helpful because they provide counterarguments to your position. How you deal with such opposing views and arguments will often be a measure of the strength of your essay as a whole. Do you rebut such arguments, concede some valid points, put the views in their proper context and so on?

It is also much better if you can avoid over-reliance on just one or two sources. The weaker student essays tend to latch on to one or two authoritative or sympathetic sources and just hitch a ride with them. (This is often apparent in the footnotes where “ibid.” recurs at length.) Try to make use of multiple sources and points of view in relation to each issue, to demonstrate the breadth of your research.

7.4.4 Thinking and speaking for yourself: the importance of independent thinking

It will depend on the question, but most academic essays require you to engage in and display independent thought. Most essay questions are asking you to give your answer to the question, not someone else’s answer. Weaker essays often show signs of being largely derivative of the work of others. The weakness is compounded when poor research has yielded only mediocre or poor sources to derive ideas from. It is important to be selective and discriminating when choosing the sources you will use to support your arguments.

Persuasive, argumentative writing thus requires you to go beyond expounding others’ views and to start presenting your own. However, selective exposition of others’ views may often be a stepping stone in presenting your own position. Moreover, it is not as if exposition does not itself involve the use of logical arguments.

In ‘taking a position’ on the relevant issue, you can, of course, give your own personal view. You are indeed encouraged to do so. (University is still a place where you are encouraged to develop your own ideas about the world.) And if you are not really sure what you think, then you are free to adopt a position for the purposes of the exercise, even if you are not personally convinced of the position yourself. But the role you play in writing the essay is still the somewhat generic one of ‘the author’ of your piece.

Taking a position does not mean that you have to adopt a stark, extreme or uncompromising stance. On the contrary, your position on a given issue may well be nuanced and subtle, or make compromises where compromises are warranted, or be provisional and tentative. What matters most is that, whatever position you take, it is articulated clearly and plausibly.

Giving your own opinion on an issue is not the same as telling the reader your feelings about the issue. Unless you’re writing a reflective essay in which you are asked to discuss your personal responses, keep your focus on your reasons for the position you are defending, not on how it feels to be in that position. This is not to assume that appeals to emotions have no role to play in reasoned argument. But such appeals should be more than simply a matter of expressing your own emotions. Remember that your job is not simply to ‘be yourself’, but to be reasonable and persuasive in a communicative exercise with your reader. You are being assessed not on your personal sincerity or authenticity but primarily on the quality of your reasoning.

7.4.5 Why should anyone believe you? The importance of argument

Your essay is not merely giving expression to your thoughts. As a piece of persuasive writing, it should also attempt to persuade your reader to share your view or, at least, to take your view seriously as meriting a considered and reasoned reply. This means giving the reader reasons for the positions you take. These should justify your position intellectually. That can include:

1. arguments directly in support of your position
2. arguments to defend your position against (possible or actual) criticisms
3. arguments against opposed positions, or
4. any appropriate combination of these three types of arguments.

Your critical arguments should aim to be fair and show the genuine strengths or weaknesses of the relevant positions. You should certainly consider both sides of a case (or more, as appropriate) as part of being fair and thorough. Of course, ultimately you should take a position – fairness does not entail indecisiveness.

Who is your reader? Whom do you seek to persuade? In reality, your reader will be the lecturer or tutor who is assessing your work and who knows a fair bit about the topic you are writing on. But you should treat your assumed reader as someone who is reasonably well-informed generally about the area you are writing on but who is not quite familiar with the particular issues or literature you are engaging with and who has a reasonably open mind about which way they might be persuaded to think. Your attempt to persuade them involves presenting reasons for the position you take. This also means that it is not enough simply to identify with a particular position on some issue, without presenting reasons for your position, expecting the reader to simply share your views. Try to avoid ‘preaching to the converted’ by simply repeating views you assume any right thinking reader will already share with you. Try to engage with those who might disagree with you by assuming your reader is mildly sceptical of your approach or is cautious about accepting your position (though do not assume they are prejudiced against you, either).

In this respect, having a clearly laid out argument which flows logically is very effective in presenting a persuasive essay. Often, a key part of what makes an argument persuasive is that the reader can easily grasp what the argument is. Readers are much more inclined to be persuaded by what they understand clearly. This underscores the importance of having a clear, coherent and cogent structure.

Some students worry about getting the correct answer, but for most law essay topics, there is often no consensus as to what ‘the right answer’ is. Your reader is not looking to see whether you have reached the right conclusion but rather to see how you got there. That is a matter of having clear and coherent arguments for your conclusion.

7.4.6 What is an argument?

It is all very well to be told to present a clear and cogent argument. But what actually is an argument, and what format should the presentation of an argument take? Whole books are devoted to these questions. We shall just present a very brief outline here.

(a)   Argument as the reasons that support a conclusion

What we are concerned with here are the reasons you put forward that logically support the position you want to maintain. Those reasons are what you present in answer to the question ‘Why should I believe or accept your view?’ Those reasons, then, are the premises which logically support your conclusion. Your argument is, in effect, the reasons for your conclusion. (Note that logicians use the word ‘argument’ to refer to both the premises and the conclusion as a whole.)

The key idea is that the reasons or premises lead logically to the conclusion. The arrival of the conclusion is signalled by words such as ‘therefore’, ‘hence’, ‘thus’ or ‘so’. Consider the following statements:

1. Parliament should take whatever steps lead to saving lives.
2. Decriminalising the use of illicit drugs would save lives.
3. Therefore, Parliament should decriminalise the use of illicit drugs.

Statements 1 and 2 support or justify the conclusion (statement 3).

We can also reverse the order by first making a claim which is then justified by the supporting statements. Here the signals are words such as ‘because’, ‘since’ and ‘as’. They signal that the justification for the claim is about to be presented.

1. Parliament should decriminalise the use of illicit drugs, because
2. Parliament should take whatever steps lead to saving lives, and
3. Decriminalising the use of illicit drugs would save lives.

There are two basic kinds of logical support that the premises of an argument can provide for the argument’s conclusion: deductive and inductive.

In a deductive argument, the premises (if accepted as true) necessitate or guarantee the truth of the conclusion.

If Ruritania^[1] uses the death penalty for drug trafficking, then it has an obligation to ensure its criminal trials observe the strictest procedures to ensure reliable guilty verdicts. Ruritania does use the death penalty for drug trafficking. Therefore, Ruritania has an obligation to ensure its criminal trials observe the strictest procedures to ensure reliable guilty verdicts.

Or:

No country that is serious about children’s rights would set the minimum age of criminal responsibility at 10 years. Ruritania sets the minimum age of criminal responsibility at 10 years. Therefore, Ruritania is not serious about children’s rights.

In these two arguments, if the premises are accepted as true, then the conclusion must follow. In assessing an argument as deductively valid, we assume the premises are true. This means that the logic of an argument is an internal matter of how the premises and conclusion relate to each other. However, the premises of an argument may turn out to be false, in which case the conclusion may or may not be true even though it is the logical conclusion of the premises. Also, even where we have good reason to accept the truth of the premises of an argument, it may be that those premises are themselves only non-deductively supported, and so the conclusion is no more certain than the weakest premise, even though it logically follows. (There is also the problem of the audience not accepting the premises, but that is not strictly a problem in logic.) A deductive argument is said by logicians to be a ‘valid’ argument if the premises, if true, necessarily lead to the conclusion; it is said to be a ‘sound’ argument if it is valid and the premises are true.

(c)   Inductive arguments

Inductive arguments provide logical support for their conclusions without guaranteeing their conclusions in the way deductive arguments do. But they still provide good logical support that makes it reasonable to accept the conclusion. An inductive argument is said by logicians to be ‘strong’ if the premises, if true, provide good support for the conclusion; it is said to be a ‘cogent’ argument if it is strong and the premises are true.

There are various kinds of inductive arguments. We will briefly outline three of the main ones here.

Inductive generalisation

Inductive generalisation is where the premises are (or summarise) particular statements and the conclusion is a general statement.

1. Of the 1500 Victorian lawyers surveyed this year, 85 per cent support decriminalising the use of illicit drugs.
2. Therefore, 85 per cent of all Victorian lawyers support decriminalising the use of illicit drugs.

The idea is that from the observed specific cases of Victorian lawyers’ support for the decriminalisation of drug use, we can draw a more general conclusion about all Victorian lawyers’ support for the decriminalisation of drug use. The observation about the surveyed lawyers provides a good reason for the conclusion, though the truth of the conclusion is not guaranteed.

There is much discussion as to what sorts of premises are needed to provide strong inductive support for general conclusions. For example, in this case, how many lawyers need to be surveyed, and how are they to be selected, before we can be confident that the sample is representative of all Victorian lawyers?

Inference to the best explanation

This is an inductive (non-deductive) form of argument where the conclusion is reached on the basis that it is the best explanation of the facts described in the premises.

Given that:

1. the DNA on Vincenzo’s corpse matches that of Darius
2. Darius hated Vincenzo
3. Darius was alone with Vincenzo just before Vincenzo’s death
4. Darius had taken out life insurance on Vincenzo a week before, and
5. there is no other plausible explanation for Vincenzo’s death.

It is therefore clear that the best explanation of those facts is that Darius murdered Vincenzo.

This inductive argument does not guarantee the truth of the conclusion, but it is still rational to accept the conclusion because it is the simplest and most plausible explanation of the event (the death). This can often mean that if you are presenting an inference to the best explanation, you will need to show the weaknesses of rival explanations as well as the strengths of the ‘best’ explanation.

Argument by analogy

Another kind of inductive argument is argument by analogy. (Argument by analogy and the doctrine of precedent often work together in law.) An argument by analogy involves arguing that because two things are similar in some respect, they are likely to be also similar in some other respect.

If a person is abused on the basis of their sexual orientation, the effect will often be much the same as being abused on the basis of their race. In both cases, something that can be integral to a person’s sense of self is denigrated and this can be deeply wounding. Victoria’s anti-vilification laws already protect people from racial vilification, so they should be amended to protect people from vilification based on sexual orientation as well.

Exactly when an argument by analogy works can sometimes be contested; not all analogies are created equal. There is a need for an important connection between the established similarities and the new, asserted similarity. If you are presenting an argument by analogy, be careful and clear about why the established similarities support there being a new similarity.

(d)   Fallacies

A fallacious argument is one that appears to be logically persuasive, but which, in reality, is not. Critical readers look out for fallacies and good writers try to avoid them. There are many kinds of fallacious arguments.^[2] We will note just a few here to illustrate.

Fallacy of equivocation

This is where someone’s argument relies on some term or concept that has two or more meanings and shifts from one meaning to another.

It’s the duty of the media to publish news that’s in the public interest. There is great public interest in UFOs. Therefore the media has a duty to publish stories about UFOs.^[3]

This purported argument relies on treating two senses of ‘public interest’ (public welfare and public curiosity) as if they were the same.

Fallacy of begging the question (circular reasoning)

This is the fallacy of assuming the truth of the proposition that one is seeking to prove.

We should believe that Derrick is innocent of murder because he denies he did it; we can trust his word because he’s never done anything illegal.

This purported argument assumes that Derrick has no criminal past in order to prove that he has not committed a crime. That is, it assumes the truth of what is in issue, namely whether Derrick is innocent of murder. This is bad reasoning because the argument does not prove what it is supposed to prove; it just assumes it is true.

The ad hominem fallacy (to the person)

This is where the arguer brings in a personal criticism of someone in order to sway their audience not to be persuaded by that person.

Professor Quin says her research indicates that the decriminalisation of drug use leads to an overall reduction in drug-related deaths, but don’t believe her – she’s stood as a Greens candidate at the last three elections.

The professor’s political activity is not relevant to issues relating to law reform and health statistics.

Then again, perhaps in some cases, certain personal characteristics might be relevant. For example, what if someone’s dishonesty might legitimately undermine the trust they should be accorded? If someone wanted to argue that Professor Quin should not be believed because she has recently been found guilty of plagiarism and fabrication of research data, then perhaps that is relevant? If so, then the relevance of the factor in question should be expressly stated and critically assessed.

7.4.7 Presenting your arguments

As a very generic way of presenting your argument, it is usually helpful to let the reader know at the start just what the issue or question is that you will be answering. Your position on that issue or your answer to that question is, then, the conclusion for which you will be arguing. Your argument for that conclusion will consist of reasons for that conclusion. It is also often helpful to consider objections to your position or argument, as well as rival or alternative positions, and respond to them.