Legal Research: Mandatory and Persuasive Authorities

    Why must mandatory authority be followed?

Mandatory authority must be followed because it is binding on the court. The lower courts have to follow the decisions from the higher courts in the same jurisdiction. This is also in accordance with the doctrine of stare decisis. Under Article 8 of the Civil Code, court decisions in interpreting and applying the laws and the Constitution shall form part of the legal system of the Philippines.

  How can a problem be resolved if there are no primary/mandatory authorities?

If there are no mandatory/primary authority, a problem can be resolved by looking into the persuasive authority.

·         Case laws from one jurisdiction may be a persuasive authority in the courts of another jurisdiction.

·         Precedent-a judicial decision that creates a rule that other courts must follow when deciding later cases that are similar or identical to the case that created the rule

·         Court opinion- the written decision issued by a court

·         Jurisdiction- a court’s power to hear matters and issue binding decisions

·         Trial court- bottom of the judicial hierarchy in a jurisdiction; persuasive primary authority; similar cases are not bound by the opinions, nor the appellate courts are

·         Appellate court- middle of the judicial hierarchy in a jurisdiction; considered the intermediate court; its opinions bind the trial courts

·         Supreme Court- the court of last resort; highest in the judicial hierarchy; its opinions bind the appellate and trial courts

  What are the two kinds of case law? Which of the two is considered mandatory?

·        Original- when the case is the first of its kind to be heard such that there are no precedents to follow in order to decide on it, the court decides and it becomes the first decision for such kind of case in which later cases have to follow unless it is overruled

·         Declaratory- application of an already existing order

ALTERNATIVE ANSWER:

·         Binding- a mandatory precedent; requires all lower courts to follow the ratio decidendi of higher courts when the facts of a case are similar; binding in the same jurisdiction

·         Persuasive- decisions of lower courts or courts in other jurisdictions that can influence the decision of the court in a particular case

  What is considered as an official repository of primary authorities in this jurisdiction?

The official repository of the primary sources is the Official Gazette.

Republic Acts and other legislative enactments or statutesà Official Gazette by the National Printing Office; Laws and Resolutions published by Congress

Supreme Court decisionsà Philippine Reports, Official Gazette

   Distinction between mandatory and persuasive authorities.

   Mandatory authority has to be followed and it is almost always primary while persuasive authority may or may not be followed. For primary source authority, it is mandatory when it is within the jurisdiction but persuasive when outside the jurisdiction. For secondary source authority, it is never mandatory but it is always persuasive.

  When is it possible for the courts to rely on persuasive authorities?

The courts can rely on persuasive authority only when there is no mandatory authority to be followed. The basis for persuasiveness are the following:

•          Factual similarity
•          Reasoning
•          Stature of the jurist
•          Level of the court from which the decision came