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Nitish Monebhurrun*
(...)la diversit de nos opinions ne vient pas de ce que les uns sont plus importants que les
autres, mais seulement de ce que nous conduisons nos penses par diverses voies (...)1. .
This can be translated by: the diversity of opinions does not mean that some are more
reasonable than others but only means that we conduct our thoughts through different means. 2
Quoting Descartes is convenient to set, without any form of tautology, the methodology to
present this paper on legal methodology. Indeed, the method proposed to conduct legal reasoning in
this article has no universal value. Law, as a science, rests on its own methodology which varies
from one legal culture to another. The legal methodology explained hereinafter is influenced by the
French one but will not be limited to the latter which will only act as a useful raw material. It is not
superior to existing methods but cumulative to them.
A method is not, in itself, the material reasoning but the means and techniques used to lead such
reasoning3. It can be induced or deduced from almost all scientific reasoning 4 and it shows how the
mind must be directed as per a given norm 5. A legal methodology conceptualises and rationalises
the working means of the jurist6, whether he or she is a professional or a student. This paper
focusses on the methodology for essay writing in legal science.
The latter is a common exercise in legal studies and is often proposed for undergraduate and
* The author is a Phd candidate in international law at the Doctoral School of International and European Law of
University Paris 1, Panthon-Sorbonne where he also acts as an assistant lecturer in law in international investment
law, the law of international relations and legal methodology.
1 DESCARTES (R.), Discours de la mthode, Paris, Editions Classiques (dir. E. Lefranc), 1866, p.1-2.
2 This is the author's personal translation.
3 SPINOZA, Trait de la rforme de l'entendement. Tractatus de intellectus emendatione, Paris, Flammarion, 2003,
p.87; BERGEL (J-L.), Mthodologie juridique, Paris, PUF, 2001, p.17.
4 In another context and according to Shakespeare, it seems that even madness has a method.
5 RAMOND (C.), Dictionnaire Spinoza, Paris, Ellipses, 2007, p.120.
6 MULLER (F.), Discours de la mthode juridique, Paris, PUF, 1996, p.37.
GOUBEAUX (G.), BIHR (P.), Les preuves crites en droit civil. Mthodologie, Paris, LGDJ, 2005, pp.28-29.
BONNET (D.), L'essentiel de la mthodologie juridique, Paris, Ellipses, 2006, p.34.
DESCARTES (R.), Rgles pour la direction de lesprit, Paris, Classiques Garnier, 1997, p.88.
GRUA (F.), Mthode des tudes de droit. Conseils sur la dissertation et le commentaire, Paris, Dalloz, 2006, p.48.
convenient definition as per the context of the subject12. Definitions can exist in given laws, treaties
or precedents. If not a dictionary must be used.
generally, of any jurist are mostly related to the reasoning adopted by the students to conduct the
demonstration and arguments throughout the essay 13. A high level of freedom therefore exists.
However, this does not imply that the absurdity of an argumentation will be validated. Content and
form must be rigorous.
3. Relevant data must be searched by following the hierarchy of norms.
In the path of rigor, a careful selection of data is useful. Such information mainly lie in the
sources of law. A legal question waits for a legal answer which is obtained by using the sources of
law. Answering like a jurist means applying and interpreting existing laws, legal principles,
existing customs and precedents. When looking for relevant data to prepare an essay 14,it is the
applicable law which must first be searched. Writings of distinguised authors act as a secondary
source of law and therefore as a secondary means of research. Thoughts of authors remain
subjective and do not always reflect positive law. They of course have a persuasive value and they
should definitely be considered but only after the main sources of law have been examined 15. Out
of the primary and secondary sources of law, those which are most relevant to the subject must be
retained. They constitute the usable raw material which must be matched to the given subject so as
to derive a general problematical question which will guide the construction of the essay. This
12 Ibid.
13 PASCAL (B.), De l'esprit gomtrique. Ecrits sur la grce et autres textes, Paris, Flammarion, 1985, p.87:
According to Blaise Pascal, whatever is the object of our persuasion, it is important to know beforehand the one who
we want to persuade. It is essential to know his mind and principles and the relation he maintains with these.
14 This actually applies to any legal work.
15 In international law, the teachings of distinguished authors act as a subsidiary source of international law (See article
38 of the International Court of Justice's statute, available on: http://www.icj-cij.org/documents/index.php?
p1=4&p2=2&p3=0#CHAPTER_II).
question normally gives the direction which will be followed in the reasoning. It is the connecting
thread which guides the argumentation.
explained.
BONNARD (J.), Mthode de travail de l'tudiant en droit, Paris, Hachette suprieur, 2006, pp.72-73.
BONNET (D.), L'essentiel de la mthodologie juridique, op.cit., p.37.
Ibid., p.36.
See Infra.
actually contains the problematical issue. Most students might, for example, formulate the latter in
the following manner: 'This essay studies and analyses the mechanism and reasons of compliance
with laws.'. What will be studied here is how and why laws are respected. This would be the
simplest way of addressing the subject which might be descriptive and perhaps not too well rated.
However, this is not the only way to understand and deal with the subject. It all depends on how
one wants to direct the argumentation. Writing a legal essay does not mean considering all of the
subject's aspects. A sole aspect can be chosen and followed as long as it is duly justified. The
lenses through which the question will be analysed actually delimitates it automatically 20. For the
same subject, another problematical question, and therefore another delimitation, can thus be: 'If by
their material existence and constitution laws are expected to be complied with, certain exceptional
circumstances sometimes legitimate their violation.'. This would be a more sophisticated but surely
a more interesting manner of setting the question. A form of dialectic comes up with such a
formulation. Very often, law seems to construct its path on contradicting needs 21. Dialectical
problematical questions are much appreciated.
After having decided what question will be examined, the next step is concentrating on how to
proceed to conduct the argumentation. The method proposed for this is to build a plan which will,
by its own existence, shows how the subject and problematical question are dealt with.
Step 3: Method for constructing a plan.
A plan has a defined use (1) and a precise construction (2).
1. The use of a plan
This part raises the question of the necessity of a plan. After all, it very much possible to start
writing the essay right away once all the data has been searched. The use of a plan is to act as a
guide. It acts as an indicator to the reader who must know beforehand where he is being conducted
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. It helps to reveal the different aspects of the subject 23. An image can be used to illustrate this. It
is the image of a castle which one has to visit. When confronted to its immensity, it is not easy to
proceed alone in the visit in an orderly and comprehensive manner by fully understanding the use of
such room, such tower, such types of stairs or such dungeon or the reason behind a given painting, a
20
21
22
23
The delimitation of the work will be seen in the part on the introduction.
GRUA (F.), Mthode des tudes de droit. Conseils sur la dissertation et le commentaire, op.cit., p.51.
GOUBEAUX (G.), BIHR (P.), Les preuves crites en droit civil. Mthodologie, op.cit., p.30
Ibid., p.39.
given wall colour or a given bed size. In such circumstances, it is easy to get lost despite being in
the castle and despite being able to circulate in it. The castle symbolises the data collected to write
the essay. If it is thrown as it is in a disorderly manner in the eyes of the examinator, the latter will
definitely have some difficulties to grasp and understand everything. The information may be
relevant and pertinent but if it is not presented in a properly and rational way, the exercise is
completely futile. It is of absolutely no use to have the required information and material if they are
not correctly applied to a given problem24.
immediately more comprehensible and interesting if a guide is present to conduct the visit and
explanation. The immensity of the castle becomes accessible. An essay should in the same manner
have a guide and the latter is materialised in the form of an appropriate methodological plan. The
plan orders the student's arguments to achieve his demonstration. It must be constructed with rigor
and coherence to inform the reader as simply as possible.
2. The construction of the plan.
The plan adopted constitues the backbone of the work 25. It highlights the essay's structure.
Reading the plan must enable the examinator to know what will be said in each of its part. It's
formulation must hence be quite concise and rigorous. The plan must be clear and intelligible.
When thinking on an essay, a torrent of ideas may come to one's mind. Suppose that there is a line
of twelve ideas relevant and available to tackle the essay. The easiest way of building a plan would
be to divide it in twelve parts 26. Each idea would be exposed in one different part. This way of
proceeding might however have an inconvenience. The work might appear too fragmentated and
without a defined coherence. The twelve points might follow each other without the existence of a
necessary link between them. The reader might as well find it difficult to follow and he might
forget the first part when he is reading the last one. He might not find it obvious to photograph
everything in a glance and can easily get disconnected. For more convenience on this point, those
twelve ideas may be reduced to few main ones 27. To achieve this, links must be found between
these ideas. Linking is an art. An artist creates a link by his art because art is beauty forged by him
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. For the jurist, the art of linking his ideas and arguments is found in his capacity to synthesise 29.
24 Take the example of a lawyer who knows the applicable law but who is unable to apply it in a convincing way.
25 BONNET (D.), L'essentiel de la mthodologie juridique, op.cit., p.39.
26 This would be in conformity with Descartes' method of dividing each problem or difficulty in as many parts as
possible in order to solve them. See, DESCARTES (R.), Discours de la mthode, Paris, Editions Classiques (dir. E.
Lefranc), 1866, p.14; DESCARTES (R.), Rgles pour la direction de lesprit, op.cit, p.154.
27 Note that if this apply for essay writing, it might be different while writing a thesis.
28 GIORDANO (B.), Des liens, Paris, Allia, 2001, p.10.
29 According to an author, the ability to reason is () the capacity to abstract notions, distinguish between true and
false propositions or to link them up into chains of ideas (reasonings), by means of which, on the grounds of certain
statements taken to be true, other statements can be proved to be tru or, at least may be admitted as probable .
To synthesise means to build bridges between different ideas in order to harmonise them. The ideas
must not be presented independently and seperately throughout the essay but must be ordered in a
synthetical fashion. Hence to construct a plan with twelve points means to synthesise and to
harmonise these points upon two or three main axes which will describe the core ideas developed
throughout the essay30. In turn, the main axes can contain two or three sub-parts. Applied to the
plan, this means that there can be two or three titles and two or three subtitles per title. The subtitles
will illustrate the main titles. These different parts must be related to each other in such a
continuous and uninterrupted way31 that the core of the essay is understood by simply reading the
plan.
Considering the subject set above, 'Should laws be respected?', and the problematical question
proposed32, the following indicative plan can be adopted:
I. The expectations of compliance with laws in principle.
A. A logical compliance as laws derive from the People's will.
B. A necessary compliance as laws maintain social order.
II. The acceptation of civil disobedience as an exception.
A. A civil disobedience justified by the egregious character of laws.
B. A civil disobedience upholding morality at the detriment of legality.
This would be a basic type of plan putting forward firstly the principle before presenting the
exception. The plan answers to the subject. It states that laws should in principle be respected but
civil disobedience is tolerated. In the same reasoning, the subtitles must answer to the main title.
Hence, there is, in principle, a compliance with laws (Title 1) because firstly laws derive from the
People's will (Subtitle A) and secondly, because laws maintain social order which is in itself in
perfect conformity with the People's will (Subtitle B). Similarly, civil disobedience can be justified
(Title II) by the existence of egregious laws (Subtitle A) and implies a choice of morality rather than
legality (Subtitle B). The construction is rather mathematical in the sense that A+B must equal to I
See, GUIBOURD (R.), The Concept of Reasonability and The Argumentative Tree , in, KRAWIETZ (W.),
SUMMERS (R.S.), WEINGERGER (O.), VON WRIGHT (G.H.) [eds], The Reasonable or the Rational? On Legal
Argumentation and Justification. Festschrift for Aulis Aarnio, Berlin, Duncker and Humblot, 2000, p.145.
30 GOUBEAUX (G.), BIHR (P.), Les preuves crites en droit civil. Mthodologie, op.cit., p.41.
31 DESCARTES (R.), Rgles pour la direction de lesprit, op.cit., p.127.
32 The second problematical question will be chosen : 'If by their material existence and constitution laws are expected
to be complied with, certain exceptional circumstances sometimes justify civil disobedience.'
Establishing the plan has another implication. For optimal efficiency, the choice of words for
the titles must be rigorous. As the titles must be concise, the right words must be chosen; titles
must be eloquent38. They must reflect and enlighten the content and a maximum of things must be
said in a minimum of words. If possible, they must be affirmative and written in an affirmative
mode39.
What can be noted is that the whole preparation obeys to a deconstruction theory. The subject
is dissected, each part is analysed and the composition of the essay follows a certain syllogism. To
use a theatrical allegory, the preparation of an essay is constituted of all the behind-the-scene
assembling and fitting work. Writing the essay means raising the curtain and presenting a fully
prepared and duly accomplished work40.
improvisation. The student must not start writing right way and search his way through as he
proceeds. He must not decide what he will say during the writing process but before it has started.
Everything must be known and concluded beforehand. This makes writing easier, clearer and
quicker. As he already knows what he will state in part A and in part B, writing becomes a
formality combined with each and everyone's personal style.
Once the problematical question has been found and once the plan has been determined and
contructed, the essay can be written.
38 PASCAL (B.), Penses, Paris, Flammarion, 1976, p.53: Eloquence, according to the author, is the art of saying
things in such a way that those who are listening (or reading) can do so without any pain and with pleasure and that
they become so interested that they voluntarily dive into reflection.
39 The student is affirming a point.
40 This quote summarises the situation to some extent: Every good story teller nowadays starts with the end, and
then goes on to the beginning, anf concludes with the middle. That is the new method (). : WILDE (O.), The
Devoted Friend , in, The Collected Works of Oscar Wilde, Hertfordshire, Wordsworth eds., 2007, p.343.
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Consequently, once the quote has been found and written, it must be justified.
2. The choice of the quote and the quote must be explained.
The choice must be explained and the relevance to the subject must be deepened. The presence
of the quote is necessarily grounded on a reason and this reason must be specified. Once this is
done, the key words of the subject must be defined.
3. The key words must be defined.
This has actually already been done in the preparatory phase and must now only be used
properly. Indeed, definition enables a first delimitation of the subject. The influence of such and
such definition on the delimitation must be explained46. It is logical to define the object of a study
before starting the study47. A good method implies knowing what is being worked on before
starting the work48. Building cannot start if the base is not known and solid 49. Of course not every
word must be defined but only the key ones50. Obscure or unequivocal definitions must not be
relied upon; definitions which are used must be well-kown and well explained 51 ones. As already
mentioned above, definitions must be searched by following the hierarchy of norms. Existing
definitions in positive law have a primacy.
4. The historical background can be set.
After this step, the historical background of the subject can be raised if need be or if by its very
consistence, the subject makes it inevitable. As per the subject, it can for example be the drafting
history of a law, the history underscoring a particular concept or the history of a given institution or
court52. Depending on the essay, the historical aspects may appear before or after the definition.
However, if diving in history might not always be required, defining the subject is a must for
reasons of proper delimitation.
46
47
48
49
50
51
52
It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a
right to assume, is to do at any time what I think is right. (See: THOREAU (H.D.), Civil Disobedience and Other
Essays, New York, Dover Publications, 1993, p.2);
Another quote from the same author could be: Law never made men a whit more just; and, by means of their
respect for it, even the well-disposed are daily made the agents of injustice. (Ibid.)
BONNET (D.), L'essentiel de la mthodologie juridique, op.cit., p.46.
POPPER (K.R.), Des sources de la connaissance et de l'ignorance, Paris, Petite Bibliothque, 1998, pp.106-107:
For some philosophers like Aristotle, definition is in itself a principle and lies at the very basis of any science.
PASCAL (B.), De l'esprit gomtrique. Ecrits sur la grce et autres textes, op.cit., pp.68-69.
Ibid., p.89.
GOUBEAUX (G.), BIHR (P.), Les preuves crites en droit civil. Mthodologie, op.cit., p.64.
Ibid., p.91.
For the subject considered in this paper, the historical background of civil disobedience can, for example, be
described.
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The
delimitation is the result of what has been said in the precedent steps. A particular quote, a
particular definition and particular historical aspects give rise to a particular delimitation 54. It is not
at all strange if two students delimitate the same subject differently. Philosophical, political,
economical or sociological considerations can also be taken into account even if their presence must
be controlled. The essay remains a legal one. These different steps which have been cautiously
followed must lead to the problematical question which will be tackled in the body of the essay.
This question, which has also already been determined in the preparatory step, must not be brought
about abruptly and delimitating the subject allows a more convenient presentation. The linking
logic still applies and the harmony which exists between the different parts of the introduction must
direct the presentation of the problematical issue. The reasons for delimitating the subject already
give a foretaste of this question. The latter must appear as a logical consequence of what has been
said from first word of the introduction.
6. Presenting the problematical question.
The problematical question which has long before been forged and framed is presented at this
point of the introduction. It is the crystallisation of the reasoning. The formulation of this question
has already been explained in step two 55.
A last step remains before completing the introduction. The problematical question has been
stated but must be enlightened. It is important to specify the means that will be used to provide
such light and to bring potential answers.
sharpened in the preparatory phase and indeed rest in the adopted plan 56.
7. Announcing the plan.
Finally, the plan chosen for the essay must be announced. The reader must know that for a
given problematical question a given solution exists. The plan cannot appear to him without having
been presented. The introduction therefore ends by a specification of the main axes of the essay.
53 GOUBEAUX (G.), BIHR (P.), Les preuves crites en droit civil. Mthodologie, op.cit., p.64.
54 For instance quoting Thoreau makes it clear that the issue of civil disobedience will be studied. Civil disobedience
enters the framework of the analysis and helps to delimitate the subject.
55 See supra.
56 See step 3 supra.
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out of subject.
At the end of part 'A', there must be a connecting sentence explaining why the ideas developped
in 'A' obviously lead to 'B'. It can be presented as simply as this:
As per the legal theory, laws are complied with because they are the result of the People's
will. Considering that such laws direclty or indirectly aim at preserving a social order which is
also wanted by the People, they are obviously respected as a matter of principle.
After this statement, subtitle B can be presented:
B. A necessary compliance as laws maintain social order.
At the end of part 'B', there must be a connecting sentence making it clear why what has been
seen in Part I logically leads and connects to Part II. For instance:
In legal matters, principles are never solitary navigators.
exceptions. As a matter of fact, if compliance with laws is accepted as a principle, exceptions exist.
Civil disobedience is one of these.
Title II can then be written:
II. The acceptation of civil disobedience as an exception. .
The same reasoning applies for all titles and subtitles of the essay. Once the body has been
built, a conclusion can be drawn.
Step 6: Method for presenting the conclusion.
Many think that a conclusion is not necessary for an essay. Indeed, if the student has been clear
enough throughout his demonstration, there should be nothing more to add. Very often, students
tend to include in the conclusion some ideas which they have forgotten or ommitted in precedent
parts or which have in some way popped at the end of the essay. This definitely breaks the global
coherence of the work and does not serve the purpose of a conclusion which is neither a collection
of ideas found in extremis nor a summary what has already been said. Repetition might appear as a
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doubt on one's own clarity. As this is the part which the examinator reads as he gets to the end of
the essay, it is important to make him leave the last lines on a good impression. Particular attention
is therefore required. A conclusion must connect the current issue to parallel ones so as to further
express the interest and the use of the subject and the difficulties it implies 59. What has been
explained in the essay can for example be compared to some current events or debates 60 on a similar
matter. Eventually, what is stated as a conclusion can be geared to match and, if possible, to answer
the questions which had been raised in the introduction 61. This completes the reasoning cyle.
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