Kara Sears
When we refer to 'authority' or 'primary authority' in a legal context, we are referring to the law. This includes constitutions, statutes, ordinances, rules, regulations, treaties, court rules, and case law. These authorities form the rules that courts follow. Primary authority is usually in the form of a document that establishes the law, such as a verbatim text of an executive order, or a legal opinion of a court. Secondary authority, on the other hand, refers to material that is not the law but that leads to or helps explain the law, such as legal dictionaries, encyclopaedias, and books. While primary authority is binding upon the courts, government, and individuals, secondary authority is not binding and is instead persuasive.
| Characteristics | Values |
|---|---|
| Definition | "Primary authority" refers to statements of law that are binding upon the courts, government, and individuals. |
| Types | Primary authority is divided into two types: mandatory and persuasive. |
| Mandatory Authority | Authorities that courts must follow. |
| Persuasive Authority | Authorities that do not bind a court but may be followed when the court is persuaded to do so. |
| Examples | Constitutions, statutes, ordinances, rules and <co: 0,1,5,6>regulations, case law, executive orders, and court opinions. |
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What You'll Learn
Primary authority vs. secondary authority
When we refer to "authority" or "primary authority" in law, we mean "the law". This includes constitutional or statutory provisions, administrative regulations, or court opinions. Constitutions, statutes, ordinances, rules, regulations, and case law are all examples of primary authority. These authorities form the rules that courts follow.
Primary authority may be mandatory or persuasive depending on the jurisdiction where the dispute is to be decided and the level of the court that decided a particular case. For example, United States Supreme Court decisions are mandatory on issues of federal and constitutional law for all state, federal, and tribal courts.
Secondary authority, on the other hand, refers to material that is not the law but that leads you to the law or helps explain it. This includes legal dictionaries, encyclopedias, journals, and books and treatises. Secondary authority is always persuasive because it is not the law. While it can help to identify relevant primary authorities, it should not be relied upon unless there is absolutely no primary authority that supports your position.
For example, a South Carolina court may be persuaded by a Georgia case. The Georgia case is considered primary authority (it is the law) but is only persuasive to the South Carolina court as it is from another state.
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Mandatory vs. persuasive authority
When we refer to "authority" or "primary authority" in law, we mean "the law", which includes constitutional or statutory provisions, administrative regulations, and court opinions. Primary authority may be mandatory or persuasive depending on the jurisdiction where the dispute is to be decided and the level of the court that decided a particular case.
Mandatory authority, also known as binding authority, refers to the rules or legal precedents that a court in a given jurisdiction must follow. For example, United States Supreme Court decisions are mandatory on issues of federal and constitutional law for all state, federal, and tribal courts.
On the other hand, persuasive authority is not binding, but it can still be used to influence a court's decision. Persuasive authority can include decisions from other jurisdictions or courts that are not binding on the current court. For example, a state court may be persuaded by a decision from another state, or a federal court may treat a state court of appeals decision as persuasive authority.
It is important to note that secondary authority, such as legal dictionaries, encyclopedias, and journals, is always persuasive because it is not the law itself but rather helps explain and analyze the law.
In cases where there is little or no binding authority, citing persuasive cases from outside one's jurisdiction can be a useful strategy. However, it is important to provide a rationale for why the court should follow that particular precedent.
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The role of constitutions, statutes, and ordinances
Constitutions, statutes, and ordinances are all considered primary authority and therefore constitute the law.
The United States Constitution is the supreme law of the land. No federal or state law may violate it, and federal laws take precedence over state laws. Federal laws are enacted by the United States Congress and must be followed by every state in the country. Each state may then enact its own statutes, which apply to everyone within the state. State constitutions represent the highest legal authority within a state, and state statutes cannot violate the state constitution, the federal constitution, or federal law.
Statutes are laws enacted by a legislative body of a government, whether federal or state. They are often broadly written to apply to a wide range of facts and may lack specifics, requiring lawyers to interpret them and how they will apply to a given set of facts. Many of the actual working provisions of statutes are embodied in regulations, which are developed and enacted through a rule-making process that includes public input.
Municipal ordinances are laws enacted by county or municipal governments through specific powers granted to them by the state. They carry the force of law within their respective municipalities and may not violate state or federal laws. Ordinances are often more limited in scope and applicability compared to statutes, but they can cover a range of issues, including public health and safety, animal regulations, and local zoning laws.
Primary authority, which includes constitutions, statutes, and ordinances, forms the rules that courts follow. United States Supreme Court decisions are mandatory on issues of federal and constitutional law for all state, federal, and tribal courts.
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Case law and court opinions
The weight of authority is crucial when researching a federal issue. The opinions of the U.S. Supreme Court and the Court of Appeals in a specific circuit are considered mandatory authority on issues of federal and constitutional law for all state, federal, and tribal courts. For instance, a federal case from the Fifth Circuit is considered primary authority and may influence the courts in the Fourth Circuit.
State courts generally apply state statutes and regulations and follow precedents from their respective states. However, if a state court has not ruled on a specific legal issue, it may find the decisions of other states persuasive. For example, a South Carolina court may refer to a Georgia case as persuasive authority.
In summary, case law and court opinions are a fundamental aspect of the U.S. legal system, contributing to the development of legal principles and the resolution of disputes. They play a pivotal role in shaping the law by establishing precedents and guiding courts' decisions within their jurisdictions.
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Executive branch agencies and regulations
The executive branch of the US government includes executive departments, independent agencies, and other boards, commissions, and committees. The President of the United States oversees most executive agencies, which are tasked with implementing and enforcing legislative requirements. The President's Cabinet includes the Vice President, the heads of 15 executive departments, and the Attorney General. There are hundreds of federal agencies and commissions with various responsibilities.
Executive departments are government units under the direct supervision of the President. These departments collect and publish unique information. For example, the Department of Energy has an office that collects, preserves, and disseminates research and development results. The Department of Health and Human Services includes the Food and Drug Administration, which works to protect and advance public health.
Although so-called "independent regulatory agencies" operate outside of the President's purview, their rules still apply equally to the public. Agencies develop regulations to implement policies established by Congress under the direction of the President. These rules typically go through a rule-making process that includes gathering early feedback, collecting comments from the public, and incorporating public comments into the final rule, which is added to the Code of Federal Regulations.
Executive orders can also be used to reform and make the regulatory process more efficient, enhance planning and coordination with respect to new and existing regulations, and increase accessibility and transparency for the public. For example, Executive Order 12866 established the "two-for-one" principle, requiring agencies to remove two prior regulations for every new regulation issued.
The Office of Information & Regulatory Affairs (OIRA), a unit of the Office of Management & Budget, is responsible for reviewing agency rules and coordinating rule-making activity across the federal government.
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Frequently asked questions
Primary authority is the law itself. It includes constitutions, statutes, published opinions, regulations, treaties, and court rules.
Secondary authority is not the law but commentary on it. It includes treatises, restatements, legal encyclopaedias, and journals.
Executive orders are an example of primary authority.
Yes, primary authority can be mandatory or persuasive. Mandatory authority is primary authority that binds a court, whereas persuasive authority does not.
Yes, a federal case from one jurisdiction can be considered persuasive primary authority in another jurisdiction.
