Lex Pundit
Precedent & Courts

Binding & persuasive authority

Some decisions must be followed; others may be — depending on the court, the place, and the quality of the reasoning.

The idea

Authority is binding only within a hierarchy: a court must follow the appellate courts above it in its own jurisdiction. Everything else — courts of the same level, courts of other provinces or countries, academic writing — is persuasive: a judge may adopt it for the strength of its reasoning, but need not.

The common law family's shared inheritance makes persuasive authority unusually portable. A point unresolved in one country is routinely argued with cases from the others, and final courts read each other's judgments — which is how doctrines migrate across the common law world.

An example

An Ontario judge facing a novel question may be pointed to a British Columbia decision, a UK Supreme Court judgment, and an Australian High Court case. None binds; all may persuade.

In Canada

Pre-1949 Privy Council decisions once bound Canadian courts as their own hierarchy's rulings; today English authority, like all foreign authority, persuades but does not bind.