Binding Authority and Persuasive Authority

In the legal system, there are two types of authorities that courts and lawyers use to support their arguments: binding authority and persuasive authority. Understanding these authorities is crucial for interpreting and applying the law effectively, as these legal principles guide how courts make decisions based on precedent and influence the development of case law.

Binding authority is a legal precedent that must be followed by the same or lower courts in the same jurisdiction. It is created when the same or higher makes a decision on a legal issue, and the same or lower courts are bound by that decision when deciding similar cases in the future. Binding authority can also come from sources such as statutes, regulations, and case law. For example, a decision by the Supreme Court of England and Wales is binding on all lower courts in England and Wales.

Persuasive authority is a legal precedent that is not binding on the court, but may be considered and used as a guide. Persuasive authority can come from sources such as decisions of courts in other jurisdictions, academic writing, and policy documents. It is up to the discretion of the judge to determine the weight given to persuasive authority in making their decision. For example, a decision by a court in Australia may be persuasive in a case being heard in England and Wales.

The distinction between binding and persuasive authority is important because it helps to determine the weight and applicability of legal precedent in a given case. When a higher court has created a binding precedent, lower courts in the same jurisdiction must follow it. However, persuasive authority can be used as a guide to support legal arguments or to propose new legal principles that may eventually become binding authority.