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What is a Primary Authority?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
  • Last Modified Date: 09 November 2016
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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. Legislatures are official bodies that are authorized to make laws, and thus the laws they draft become primary authorities once they are published and signed. By contrast, a secondary authority is a document that provides explanation or commentary 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 municipal ordinances to Senate bills. In addition to legislation, primary authorities include case law, treaties, and executive orders. All of these things are examples of formal documents published by government authorities for the purpose of creating laws and providing guidance.

Case law is law that is derived from decisions in court cases. In some court cases, there is an existing primary authority that a judge can rely upon to make a decision. For others, a judge will need to interpret the law and provide supporting documentation to bolster that interpretation. Once this is written up in a formal decision, the decision itself becomes a primary authority.

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Primary authorities are mandatory. If a primary authority pertains to a situation, it is binding and must be followed. People who believe that a primary authority is outdated or of questionable value can choose to challenge it in a court of law or through the legislature. Legislatures update the law all the time to remove problematic material and clarify terms, for example, addressing the shifting nature of how society and the law interact.

When people are doing legal research, they have to be able to distinguish between primary and secondary authorities. For the purpose of writing case decisions and making legal recommendations, a primary authority must be found to cite so that the document can withstand scrutiny. Even judges setting precedents 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 clarification, explanation, and interpretation, but they do not set out the law itself. People can choose to ignore secondary authorities or to challenge them in legal writing of their own, which may demonstrate the problems with a secondary authority and provide suggestions for a new interpretation.

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NathanG
Post 3

@Charred - Okay, I think you are all getting carried away here. Personally, I believe that the separation of powers has been working well and that primary law is still, if you will, the law of the land.

Executive orders are not used as freely as you think, and case law always looks at precedent. Courts do not overturn past laws just because they feel like it; there would have to be solid grounds for doing so.

As for their ability to declare things unconstitutional, a constitutional amendment can override even that. These are all checks and balances and they work in due course.

Charred
Post 2

@nony - Like them or not, executive orders have been around since the late 1700s. That’s not what causes me concern however.

What bothers me is case law. If you ask me, I think case law has trumped judicial law by a wide margin. As a matter of fact, case law can even trump an executive order, if a lawsuit is filed challenging such an order.

Of these three, case law, judicial law, and executive order – case law wins out. That’s why each President is so careful to stack the deck in the Supreme Court (when given opportunity) with justices who will support his ideological viewpoint.

The President and all of Congress know that the Supreme Court can declare just about anything unconstitutional, making any law null and void.

nony
Post 1

Primary authority and secondary authority documents certainly have their place, but what gives me the shivers in what the article talks about is that thing called executive order.

By the stroke of a pen, the President of the United States can basically issue what are tantamount to modern day decrees, almost making him like a modern day Caesar.

It’s an anachronism in our legal system, in my opinion, and should be banned completely. If you can’t get your laws passed through the legislative process or established through case law, they shouldn’t hold water.

Don’t think that American Presidents don’t understand the power of executive order. They do, and they use that privilege too freely in my opinion.

It’s not uncommon to have one president step into office and sign a whole bunch of executive orders undoing what the prior president did. Then the next president does the same thing. It doesn’t fit within our beliefs about the rule of law in my humble opinion.

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