Persuasive authority refers to legal sources or precedents that a court or legal professional may consider and find convincing, but that are not binding on the court. In the legal context, there are two main types of authority: binding authority and persuasive authority.
Binding authority, also known as primary authority, includes laws, statutes, regulations, and binding precedents from higher courts within the same jurisdiction. Courts are required to follow binding authority. On the other hand, persuasive authority, also known as secondary authority, includes legal sources that are not binding but can be persuasive in supporting a legal argument. Examples of persuasive authority may include decisions from lower courts, decisions from other jurisdictions, legal commentary, and scholarly articles.
Lawyers often use persuasive authority to support their arguments, especially when there is no directly applicable binding authority. For example, if a lawyer is arguing a case in a jurisdiction where there is no binding precedent on a particular issue, they may refer to decisions from other jurisdictions as persuasive authority to persuade the court to adopt a similar reasoning.
The weight given to persuasive authority can vary. Courts may consider the source’s credibility, the reasoning behind the decision, and how closely the facts of the case align with the current case. While persuasive authority is not binding, it can still be influential in shaping legal arguments and decisions.
