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.
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 People who believe that a primary authority is outdated or of questionable value can choose to challenge it in a court of law or through the legislature.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.
