What Is Critical Thinking?

Critical thinking, or critical analysis, is the number one piece of feedback that students receive about their essay writing. We are told that if we just added some critical analysis, we could push our grade up over the threshold into a 2:1 or a 1st. It’s infuriating sometimes, especially when we don’t actually know what it means. What the hell is critical thinking?

Critical Thinking [noun] – ‘the objective analysis and evaluation of an issue in order to form a judgement’

However, this definition almost makes the concept of critical thinking more confusing. Critical thinking / analysis is objective analysis and evaluation? What does that even mean?!

In the simplest way possible, I like to define critical thinking as ‘the act of questioning everything’. Let me break that down in terms of law & legal essays.

Statutes & Case Law

It’s almost impossible to write a good law essay without referring to relevant statute(s) and case law. But it is very easy to simply name-drop these legislative provisions and case names without discussing them critically. After simply stating the law, it’s important to ask the following questions:

• What is the significance of the law?
• Why is this the current state of the law?
• How has the law changed to get to this point?
• Why has the law changed?
• How should the law change in the future & why?

Reflecting on the legislation and cases in this manner shows that you not only understand the law, but can also praise or criticise the law, where necessary.

Academic Articles

These secondary sources are likely to be the basis for the bulk of your critical thinking. One thing that a lot of law students don’t know is that it is perfectly okay to openly disagree with leading academic opinion. The key is having reasons to back up your opinion. So, ask questions like this:

• Why does this academic have this opinion?
• What are the strengths or weaknesses of their opinion?
• What assumptions are they relying on?
  • What is the author assuming as fact?
  • Can these assumptions be disputes?
• What biases might the academic have? How might these biases affect their stance?
  • How may the author be biased?
  • Consider cognitive biases and how they may have influenced the author’s stance.
• What approach is this author taking? Is it too narrow?
• Why is the author qualified to speak on this matter? Are there any doubts about their credibility?
• Is their argument convincing? Why or why not?
• Who agrees or disagrees with their argument?
  • find other academics who agree or disagree with the academic
• What other perspectives, other than the legal perspective, can we consider?
  • the legal perspective will form most of your essay but it’s okay to refer to economic, psychological, or sociocultural perspectives in order to support your arguments

Essay Writing

A great and easy way to implement critical thinking in an essay is to refer to an academic opinion, say that it is unconvincing, then explain why your argument is better. For example:

‘McKendrick argues that the doctrines of mitigation, causation, and remoteness ‘weaken the commitment of the law’ to protect claimants from loss, resulting in under-compensation. This argument is wholly unconvincing; the doctrines are fair and reasonable, existing only to prevent unwarranted claims rather than to under-compensate, or refuse compensation to, deserving claimants.‘

To summarise:

Ask questions. Praise or critique academics. Form your own opinion & find ways to back it up. Don’t state things as they are – ask WHY they are that way and HOW they could or should change.