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Primary authorities are legally binding documents issued by official bodies, such as legislation, case law, treaties, and executive orders. They must be followed and updated by lawmakers. Secondary authorities provide explanations and interpretations but are not legally binding. Legal research requires distinguishing between primary and secondary authorities.
A primary authority is a document issued by an official body that makes a legally binding statement about the law. A classic example of a primary authority is a law itself. Legislators are official bodies that are empowered to legislate, and thus the laws they draft become primary authorities once published and signed. In contrast, a secondary authority is a document that provides explanations or comments on the law and is not issued by an official body.
Legislation, also known as enacted or statutory law, is a significant primary authority in many regions and includes legislation enacted at all levels of government, from city ordinances to Senate bills. In addition to legislation, primary authorities include case law, treaties, and executive orders. All these things are examples of formal documents issued by government authorities for the purpose of creating laws and providing guidance.
Jurisprudence is the law that results from decisions in court cases. In some court cases, there is an existing primary authority that a judge can rely on to make a decision. For others, a judge will have to interpret the law and provide supporting documentation to support that interpretation. Once this is written into a formal decision, the decision itself becomes a primary authority.
Primary authorities are mandatory. If a primary authority concerns a situation, it is binding and must be followed. People who feel that a primary authority is outdated or of questionable value may choose to challenge it in court or through the legislature. Lawmakers continually update the law to remove problematic material and clarify terms, for example, by addressing the changing nature of how society and the law interact.
When people do legal research, they need to be able to distinguish between primary and secondary authorities. In order to write case decisions and make legal recommendations, a primary authority must be found to cite so that the document can stand up to scrutiny. Precedent-setting judges also rely on primary authorities in their decisions, showing how existing law supports the decision the judge has reached.
Secondary authorities are suggestive in nature. They provide clarifications, explanations and interpretations, but do not define the law itself. People may choose to ignore sub-authorities or challenge them in writing, which can demonstrate problems with a sub-authority and provide suggestions for new interpretation.
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