When is a precedent persuasive

On the other hand, mandatory precedents by higher courts in the same jurisdiction will be binding on that court unless the court can show that the judgment reached in those cases involved some sort of misapplication of the law.

Another situation where a persuasive precedent can be seen is a case decided by a lower court in the same jurisdiction. Such a decision might be considered by higher courts during the determination of similar cases, but they will not be binding, only persuasive precedent.

Other sources include the writings of well-known and respected legal scholars in such items as law reviews and legal treatises.

Show Summary Details Overview persuasive authority. Subjects: Law. Reference entries persuasive authority in A Dictionary of Law 7 Length: 69 words. View all related items in Oxford Reference » Search for: 'persuasive authority' in Oxford Reference ».

All rights reserved. Sign in to annotate. Oxford: Oxford University Press, Fundamental Legal Conceptions. Persuasive Authority in the Law. The Harvard Review of Philosophy, n.

XVII, pp. Law and Content-Independent Reasons. Oxford Journal of Legal Studies, vol. Being Apart from Reasons. Springer, RAZ, Joseph. Practical Reason and Norms. Minnesota Law Review, vol. Playing by the Rules. Critical Notice. There may be no scope for a persuasive precedent if there is a binding precedent that must be applied.

A court can only choose to follow a persuasive precedent if no relevant binding precedent exists in its own hierarchy. Obiter dictum. Also worth noting is the possible impact of obiter dictum remarks on the development of a judgement.

Instead, obiter dictum remarks may provide some insight or explanation into how the judge interpreted the facts and legal principles, in order to reach his or her decision.

They are not binding or persuasive precedents but can provide important information and guidance for future judges.