The first year of law school usually includes an introduction of some kind to the doctrine of stare decisis (or precedent) and the related concepts of dicta and holdings. For the basics, see the Lexicon entry on holdings. The core idea is that majority opinions usually have a holding, which is a rule implied by the reasoning necessary to reach the decision in the case, given the legally salient facts.
This time the Lexicon is focusing on the idea of persuasive authority. The basic idea is intuitive. The reasoning in a decision can persuade even if it does not bind. But what does that mean? How does the persuasion work? This Lexicon entry investigates those questions. As always, the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.
Four Ways That Persuasive Authority Can Persuade
Although the notion that authority can persuade might seem obvious, there are actually at least four different ways in which a persuasive authority might influence judges: 1) persuasion by reasons, 2) persuasion by epistemic authority, 3) persuasion by predictive power, and 4) persuasion by legitimation. Let's take a look at each of these four ideas.
Persuasion by Reasons
First, persuasion by the force of reasons is independent of the person or institution that provides the reasons: in this regard, the reasons of Supreme Court Justices are equally persuasive as the same reasons when provided by a student law review note. Persuasion by reasons operates through what Jürgen Habermas felicitously describes as the "unforced force of the better argument." A sound argument has true premises and a valid or otherwise reasonable argumentative structure. The premises of an argument might be supported by evidence, intuition, or some other form of support. Valid arguments can have many different structures. Deductive arguments are valid if the conclusion logically follows from the premises. Inductive arguments do not guarantee the truth of their conclusions but purport instead to make their conclusions more likely. "Inference to the best explanation" or "abduction" is yet a third category of reason: if you are not familiar with this idea, take a look at the Stanford Encyclopedia of Philosophy article on Abduction.
In sum, a cited authority can persuade through the arguments that it makes and the evidence that it cites. This kind of persuasion does not depend on the author's credentials or institutional power. It depends on the quality of the reasons offered by the source that is cited.
Persuasion by Epistemic Authority
Second, consider persuasion by epistemic authority. Of course, most of us are inclined to regard what is written by a Supreme Court Justice or an eminent scholar as more persuasive than what is written in student notes, even though it is sometimes the case that the latter are sometimes correct when they disagree with either of the former. This is because we regard some persons or institutions as epistemic authorities. In the sense I am using the term, an “epistemic authority” is someone to whom some group defers because of the authority’s expertise.
In law, the idea of epistemic authority is usually based on the fact that some judges or scholars are viewed as especially learned, trustworthy, and smart. Thus, the opinions of some Supreme Court Justices may be viewed as epistemic authorities because of the belief in the legal expertise of the Justices. Or the author of a respected treatise (Wigmore on Evidence, for example) might be viewed as an epistemic authority on matters within the scope of the author's expertise.
The relationship that creates epistemic authority might be viewed as dyadic—a relationship between a pair consisting of the possible epistemic authority and the individual who might defer to the epistemic authority. A given lower court judge, say Learned Hand, might not view a given Supreme Court Justice, say Tom Clark, as an epistemic authority or even as an epistemic peer or equal. But many judges, lawyers, and scholars are likely to view Supreme Court Justices as epistemic authorities, at least on some topics. Likewise, an eminent scholar might regard herself as without epistemic peers on the topic of her expertise: if this were the case, she might not regard any source as having true epistemic authority.
Persuasion by Predictive Power
Third, opinions of the some courts may persuade because of their predictive value. Lower court judges may view the opinions of the Supreme Court as persuasive because they provide a basis for predicting the future behavior of the Court and hence the likelihood that the Court would reverse a lower court’s decision. Lower court judges may wish to avoid reversal, and hence may view dicta that is clearly endorsed by the majority of a higher court as a good source of predictions about the likely decisions of that court in the future. Even if lower court judges do not care about reversal for personal, they may believe that it is a good idea for lower courts to cooperate with higher courts to enhance the stability, certainty, and predictability of the law. This aspect of persuasive authority is likely to degrade over time as the composition of the higher court changes.
Persuasion by Legitimation
Fourth, there are some legal authorities (such as opinions of the Supreme Court) that may have what we might call “legitimating authority.” Given legal culture, legal arguments may be viewed as requiring legitimacy. For example, if a lawyer can cite a Supreme Court opinion as the basis for an argument, this may be sufficient to establish the legitimacy of the argument. A student note may not have same legitimating force--even if the reasons offered by the student note provide cogent arguments while the Supreme Court opinion might not even provide a supporting argument. Some arguments are "on the table" whereas others are "off the wall."
Integrating the Four Types of Persuasion
Putting these pieces together, we might postulate that the full persuasive force of a statement by a purported authority is a complex function of the reasons it provides, the epistemic authority of the author, the predictive value of the statement (if any), and its legitimating effect. Different judges may have different “persuasion functions”—some may count reasons heavily and predictive value lightly, or vice versa.
Types of Persuasive Authority
In law, we use the word "authority" to designate a source cited by a lawyer, judge, or scholar in support of a legal argument. The conventional view is that the holdings of decisions of a higher court are binding on lower courts within the scope of the hierarchy of authority. Those same decisions may be persuasive authority in other jurisdictions. And dicta in a higher court decision may be persuasive authority, even if it is not binding. Treatises and scholarly articles are never binding authority, but they may be persuasive.
Provisions of constitutions, statutes, regulations, and rules are usually thought of as binding authority, but this idea is subject to a complex set of qualifications. A statute that has been given an authoritative construction may only be binding "as construed," even if the construction is tantamount to judicial amendment or nullification of the statute. This is a large topic, and this Lexicon entry can do no more than to note the existence of the complications.
A Qualification re the Idea of Authority
In this Lexicon entry, I am using the word "authority" to refer to cited sources--a standard usage in law. In legal philosophy, the same word is sometimes used to refer to the concept of authority--in the sense in which a legal system claims authority over persons within its jurisdiction. One theory of authority (associated with Joseph Raz) maintains that the notion of a peremptory or exclusive reason is baked into our notion of authority. Just to be clear: I am not using the word "authority" in that sense.
The notion of persuasive authority may seem simple, but I hope this Lexicon entry has given you a sense of the complications.
Related Lexicon Entries
- Legal Theory Lexicon 005: Holdings
- Legal Theory Lexicon 017: The Rule of Law
- Legal Theory Lexicon 063: Interpretation and Construction
- Amy Allen, The Unforced Force of the Better Argument: Reason and Power in Habermas’ Political Theory, 19 Constellations 353 (2012).
- Alvin Goldman & Thomas Blanchard, Social Epistemology,Stanford Encyclopedia of Philosophy (2015).
- Scott Shapiro, Authority in The Oxford Handbook of Jurisprudence and Philosophy of Law (Jules Coleman and Scott Shapiro eds. Oxford: Oxford University Press 2002).
- Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Washington University Law Review 1 (2014).
- Linda Trinkaus Zagzebski, Epistemic Authority: A Theory of Trust, Authority, and Autonomy in Belief (Oxford University Press, 2012).
(First Posted on January 3, 2015)