Answered By: Shaun Jamison Last Updated: Oct 06, 2017 Views: 1001
What are Mandatory, Persuasive, Primary, and Secondary Laws?
Mandatory Law is law which a jurisdiction must follow. As noted in the graphic below, it needs to be from the same jurisdiction and needs to be “on point.” On Point means it addresses the legal question you are trying to resolve. For cases, one would look to whether the opinion is from a higher court or the same court in the same jurisdiction. Decisions from other trial courts or intermediate appellate courts (courts of appeal) might not be mandatory. Caution – There is an ethical obligation to disclose the controlling law, it is not wise to interpret that obligation too narrowly. It is better to disclose a legal authority and argue it doesn’t apply than to ignore it. All mandatory law consists of primary law.
Persuasive Law is secondary law (commentary) or primary law which is not mandatory. Examples of commentary include law reviews & journals, treatises, hornbooks, restatements, legislative history, and blawgs (legal blogs). The Restatements are widely respected and considered more persuasive than most other secondary sources. How primary laws such as statutes, constitutions, ordinances, regulations, and cases can be considered persuasive is that they may be from another jurisdiction. North Carolina cannot tell South Carolina what to do. Intermediate courts of appeal may consist of panels for a particular jurisdiction and thus might only be persuasive outside their jurisdiction. Courts in the 8th Circuit might have different interpretations of the law than ones in the 9th Circuit. Dictum in an opinion might also arguably be considered secondary law.
Primary Laws are laws generated by one of the three branches of government such as statutes, constitutions, treaties, ordinances, regulations, executive orders, and cases.
Secondary Law (commentary) includes: law reviews & journals, treatises, hornbooks, restatements, legislative history, and blawgs (legal blogs).