Dethroning the Hierarchy of Authority
47 Pages Posted: 29 Mar 2018 Last revised: 3 Apr 2018
Date Written: March 21, 2018
The use of authority in legal argument is constantly evolving—both the types of information deemed authoritative and their degree of authoritativeness—and that evolution has accelerated in recent years with dramatic changes in access to legal information. In contrast, the uncontroversial and ubiquitous “hierarchy of authority” used as the cornerstone for all legal analysis has remained entirely fixed. This article argues that the use of the traditional hierarchy as the dominant model for legal authority is deeply flawed, impeding a deeper understanding of the use of authority in legal argument. Lawyers, judges, and academics all know this, and yet no scholarly treatment until now has tackled the problem.
The traditional model of authority offers only two essential classifications: the distinction between binding (mandatory) and non-binding (persuasive) authority, and the distinction between primary and secondary authority. These two simplistic classifications are of limited use in answering critical questions about how legal authors actually construct legal analysis, and how and why they should. The weight of authority is not binary, the use of sources is not static; and the current legal culture countenances reliance on just about any source. Yet, surprisingly, there has been little effort to update the model of legal authority: the hierarchy metaphor and its exclusive focus on “binding” authority stands virtually unchallenged as a proxy for the value of legal sources. This article proposes that we shift to a holistic, pluralistic view of legal authority in order to better understand its many complexities, thereby dethroning the hierarchy as the ruling principle of authority.
Keywords: authority, mandatory, persuasive, binding, hierarchy of authority, primary, secondary, delegalization
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