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Demonstrating your reasoning

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One important form of argument in law is based on showing that the principles of law that hold in one situation apply in another. A common danger is to over-generalise, that is, to assume that principles which apply in one situation apply in another similar one. They don't necessarily, so you need to show why they do. You need to show the reasoning you followed to determine whether or not they do apply.

The following two statements suggest an inconsistency in the law on medical end-of-life decisions. In the first statement, consent has no bearing on the legal permissibility of an end-of-life decision. In the second, it is crucial.

Under current law, the consent of a patient does not justify a doctor actively hastening the death of that patient.
Under the Medical Treatment Act (Victoria, 1988) the consent of a patient justifies a doctor withdrawing treatment from a patient, thereby through inaction hastening their death.

Now look at the following paragraph that makes use of this information to argue that the present state of the law is unacceptable.

Consent has already been accepted as bearing legal significance in end of life decisions: it has long been a principle at Common Law that one may refuse any form of life-prolonging treatment, and the enactment of the Medical Treatment Act in 1988 affirmed this position in Victoria. Therefore, consent justifies a doctor withdrawing treatment in order to hasten a patient's death, but it does not justify a doctor providing treatment in order to hasten a patient's death. This is inconsistent, and clearly unacceptable.

What grounds does the writer have for claiming "this is inconsistent, and clearly unacceptable"?

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The argument is that, because "[c]onsent has already been accepted as bearing legal significance in end of life decisions", it should also be accepted as central in active voluntary euthanasia.


Do you think this argument is valid? Why/why not?







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Feedback:

At a common-sense level this appears reasonable. However, whether there is legal inconsistency needs to be shown. Only under certain circumstances, determined according to specific principles, does consent make an act legal. You would need to establish these principles and show why they apply to active voluntary euthanasia, and only then could you say the law is inconsistent.


The arguments you make in your law assignments are not only concerned with matters of legal principle. They are also concerned with matters of policy. Look at the following rejection of the 'slippery slope' argument for prohibiting active voluntary euthanasia.

One argument presented for prohibiting active voluntary euthanasia is the 'slippery slope' argument. It is argued that permitting active voluntary euthanasia will lead to greater tolerance of non-voluntary mercy killings. This claim is not born out by statistics from the Netherlands. According to the Remmelink Report, since the introduction of liberal euthanasia laws in the Netherlands, non-voluntary euthanasia has declined rather than increased.

Notice the argument here. It is believed non-voluntary mercy killings will become more widely tolerated if active euthanasia is permitted. If a policy objective is to avoid a growth in tolerance of non-voluntary mercy killings, active voluntary euthanasia must remain prohibited. However, the student's counter argument is that a change in law would not undermine this policy objective. His argument addresses issues of legal policy, not legal principle.

Do you think the writer makes his point effectively?







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Feedback:

Yes. The writer does the following:

  • Establishes the policy reasons for prohibiting active voluntary euthanasia: Active voluntary euthanasia needs to be prohibited otherwise undesirable non-voluntary end-of-life decisions will become more acceptable.
  • Presents evidence to show these policy reasons are not justified: Dutch figures show that liberal legislation does not lead to an increase in non-voluntary euthanasia.

NOTE: It is worth pointing out that students generally do best on the non-legal or policy discussion aspects of essay writing. You might like to keep this in mind when you write your assignment. Extra effort might be necessary to deal with legal aspects well.

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