In this post I expand upon PS Atiyah's exposition of Jeremy Bentham's method. Disregarding criticism of Bentham's utilitarianism, I focus on the technique that law students may derive from Bentham's work. This post therefore offers advice for planning essays, by explaining how to collect and write an essay's constituent parts, which can then be rearranged to create the final product.
While the post discusses essay writing, I hope it is also useful for answering problem questions. Legal analysis has central features and is quite a stable concept, even if somewhat difficult to define. The purpose of any writing will always determine the best structural presentation of its analysis. The following observations may therefore be tweaked as required. (Scroll down to find the recommended steps.)
1. Introduction and Road Map
Atiyah and Bentham are discussed first. Bentham's method is then outlined and expanded upon to indicate what should be included in a legal-essay plan. It is implied that each element might be used to highlight the details that are necessary in, and must be found during, legal analysis. Once found, students may use the produced research to construct a solid essay.
2. From Atiyah to Bentham
Patrick Atiyah is a brilliant legal scholar. You can find a monograph of his, the one that is £85 in the picture link to the left, for free at The Hamlyn Trust. Scroll down on that site to the thirty-ninth lecture, from 1987. His lucid and simple analysis of Bentham is within that essay, called 'Pragmatism and Theory in English Law' (PETL 33–34, 94, 163).
2.1 Who is Atiyah?
I mention Atiyah because law students may benefit from an early acquaintance with his work. He should become familiar when studying contract or commercial law. His work is also relevant to learning common law in general. This post, however, is not the place for a fuller sketch of Atiyah. I imagine I'll write about him again on this blog, though.
Jeremy Bentham is more widely famous (PETL 33 fn 70). He supported and evaluated utilitarianism (UOE 8). Bentham claimed humans are 'governed by pain and pleasure' (UOE 65). His utilitarianism demands the latter is maximised and the former minimised (UOE 65–112).
2.2 Who is Bentham?
Many details are outside this post's scope because they simply confuse the useful part, How to use Bentham's work processes to plan law essays. However, another observation is helpful.
He supported utility because other 'pretended systems' such as common sense are never consistent enough for law (UOE 78–83). From this, Bentham suggests utility should be considered to help decide what the law should be, at which point we must do our utmost to implement the suggestions, which requires knowing what the law that needs changing actually is (PETL 163).
In Atiyah's words,
2.3 Atiyah Exposes Bentham…
[W]hat is needed is research into the facts, study of the existing law and its deficiencies, and then the formulation of proposals for reform. (…) [This] is in truth a method of law reform based on an implicit theory; (…) but it was explicit (…) in the hands of its inventor, Jeremy Bentham. (…) Bentham (…) propounded this method of legal change, [which] (…) makes implicit use of another theory, (…) that what the law is must be fundamentally distinguished from what it ought to be. (…) Bentham insisted that before the law can be reformed we have to distinguish very clearly what it currently is from what we think it should be. The first step is to find out what the law is. The second is to discover what is wrong with it. The third step is to decide how to put it right, and the fourth step is to change the law to give effect to what we have decided must be done. (PETL 163, emphasis added from 'The First…'.)
I now analyse and develop this for planning law essays. If student writers provide each of Bentham's requirements, the basic essay is constructed. I will suggest, after this, how one might rearrange one's text to improve coherence and persuasiveness.
3. Onto Planning the Essay…
Implicit in my suggestion is an idea about the student's task in essay writing: Bentham's third and fourth steps are merged in academic legal writing because the task is to persuade the reader (usually one's tutor) why or how to remedy the law, because most law students are not in the position actually to change the law until later, when, perhaps, a few will become legislators or judges.
So, what are the questions to answer, issues to consider, and the order in which to do all this?
3.1 Necessitated Tasks
- First, discover the law. This requires exposition:
- Expose all the law's elements (this is analysis);
- Discuss the elements (this is criticism if you use the opportunity to, well, criticise).
- Second, decide what the law should be. This step is evaluative. If in the first step you criticised--asserted that the uncovered elements were good or bad--in this step:
- You must explain why these elements are good or bad.
- You must justify that evaluation explicitly. (My post about 'because' may be helpful.)
- From this, you may begin suggest whether the law is as it should be. It is important to remember that your reasons need not be based on utilitarianism.
- Should the law remain as it is?
- Or should the law be changed?
- Third, discuss what is required to make the law become what it should be.
- It is important to note the law may already be what it should be, in which case an argument should be made against reform. If the law should not be changed, say so.
- If the law should be changed, explain why. Also explain what is needed to effect the change. Discuss the extent of those changes. Smaller alterations may be easier to persuade and justify. If you can implement a desirable result with a tiny change today, it may be preferable to advocating a massive, albeit better, change never.
- There are two additional requirements for essays.
- An introduction: simply, say what is in your essay, perhaps outline your purpose, and state the order that ideas are written in. You may not always need to label your introduction: it should be self-evidently introductory because it begins the essay.
- A conclusion: say what you have tried to do, whether you achieved it or not, and the implications of your arguments' successes and failures.
'The law's elements' in I.a above, includes ratios, sections, arguments, obiter dicta, language, and anything else you might tease out of case law, legislation, and relevant discussions. Just be sure you know the differences between extrinsic and intrinsic sources to ensure you rely on the proper authorities (I'll discuss these in another post).
The above steps, I hope, indicate a good essay's contents. Many alternatives to this method exist.
3.3 What Next?
Regardless of initial approach, all legal essays must analyse, criticise, evaluate, and apply the law. Synthesis is good, too--it is required for a first or distinction--but explaining what that is, or how it might be done is difficult and too much to ask from this post (I'll therefore discuss it in another post).
Now, your draft needs finishing. The above demanded components ensure you have good material at your disposal. They must be put into the strongest arrangement possible.
Organise the content produced in addressing each of Bentham's concerns to facilitate coherence and reader comprehension.
3.4 Rearranging the Research
The following list silhouettes how I finish an essay. My actual process differs according to the answer I want to give--one must find the essay's rubric, and resolve it above all else. I ask this list's questions more than once. Whenever I think an essay is finished, I begin the list again, and repeat until it becomes superfluous. That is, I stop when no more improvements are necessary, wise, or possible under deadlines.
- Print the draft.
- Grab some coloured pens.
- Read the draft.
- Draw a different coloured line, number, or mark next to all the related parts. Different idea, different colour, number, or mark.
- Now think: Which bits might be grouped together?
- What ideas are similar?
- Are there any separate, recurring themes?
- Are any principles normally discussed together in case law or legislation?
- Might these be grouped together in the essay?
- Now, on your word-processor, cut and paste the identified groups so they sit together in the essay. (You could even take some scissors to your printed draft if it helps.)
- Print again.
- Now that similar ideas are together, repetition will become more obvious. Delete repetitious phrases and merge repetitious concepts.
- The essay will begin to suggest its own best structure.
- Each of the grouped ideas becomes its own section--whether (sub-) headed, or not.
- Consider what order the sections should be put in:
- Introductory ideas, explanations of fundamental principles, or basic analyses of the law or ideas should feature early in the essay.
- Evaluations might best be placed in increasing complexity, to warm up the reader.
- Concluding remarks should be written at the end of each section or, if more general comments, in the essay's final pages.
I admit this post is, perhaps ironically, more detailed than I planned. Still, I have surely missed something. If you agree with my process, or have a suggestion, please leave a (non-inflammatory) comment. Regardless of missed details, the basic approach is very simple:
- Discuss: What is the law?
- Evaluate: What ought the law be?
- Consider: How might the law become what it should be?
- Conclude with whatever follows this sequential analysis.
As other posts suggest, some key texts are very useful. Beyond reading the following books, I can only suggest reading as much law as possible. This will allow you to compare cases and arguments against each other, thereby allowing you to consider which are better. If you know what arguments are best in others' writing, you can try to emulate them in your own.
5. Further Reading
The following is quoted from 'How to Structure an Argument'.
5.1 A Final List
Bryan Greetham, How to Write Better Essays (3rd edn, Palgrave Macmillan 2013) contains good general advice.
Glanville Williams, Learning the Law (A.T.H. Smith (ed), 14th revised edn, Sweet & Maxwell 2010) contains good advice more relevant to law students.
A P Martinich, Philosophical Writing: An Introduction (3rd edn, Blackwell 2005). This is a brilliant book. One should aim to read it as early into one's higher or autodidactic education as possible. This book's method is applicable to law, philosophy, ethics, and other related arts, humanities, and social sciences, notwithstanding the title's narrowness.
The best type of further reading is simply good argument. Here are three contrasting examples from law-authors who disagree with each other but who each leave the reader persuaded the other two are wrong.
Page pinpoints throughout this post refer to Atiyah, Pragmatism and Theory in English Law (Stevens & Sons 1987), abbreviated to PETL; or Bentham and JS Mill, An Introduction to the Principles of Morals and Legislation in 'Utilitarianism and Other Essays' (Penguin 1987), abbreviated to UOE.
Created: 13 January 2014. Version 1.0.
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