Arguing from Authority

Question 1

Name the two areas of source which are referred to as ‘authoritative legal sources’

Answer 1

Texts
- statutes, statutory instruments, by-laws, contracts, wills

Cases
- ratio decidendi of past cases

Question 2

What sources do courts refer to as somewhat ‘authoritative’?

Answer 2

• dessenting judgements, judgements of foreign courts
• writings of scholars and reference works, such as dictionaries
• obiter dicta

Question 3

What are obiter dicta?

Answer 3

remarks of a judge which are not necessary to reach a decision but are made as comments, illustrations or thoughts

Question 4

Give the two kinds of reason

Answer 4

reasons for action (practical) and reasons for belief (theoretical)

Question 5

Explain what reasons for action are

Answer 5

• suppose someone had an accident and needs to be taken hospital, and you are in a position to help
• the fact that they are injured and need your help is a practical reason for you to assist them

Question 6

Explain what reasons for belief are

Answer 6

• suppose someone has just walked in from the street drenched in water ad saying “I wish I brought an umbrella with me when I left home”
• the fact is a reason for you to believe that it is raining right now

Question 7

What are content-independent reasons?

Answer 7

• a promise to have lunch with a friend gives you reason to do something, but that reason has nothing to do with the merits of what you promised
• the reason that you have is independent of the content of the promise - and thus independent of the merits of the action that you are promised to perform
• you promising to meet your friend for lunch gives you a content-independent reason for action

Question 8

In what situation would a substantive reason arise?

Answer 8

the fact that there is someone who has had a car accident and needs your help, gives you a substantive reason to do so

Question 9

Are all authoritative reasons content-independent?

Answer 9

Yes

Question 10

Are all content-independent reasons authoritative?

Answer 10

No

Question 11

Give two examples of individuals with practical and theoretical authority

Answer 11

Practical

• an army officer’s commands
• practical authority whose say-so gives the soldier practical reasons to do something
• they have authority

Theoretical

• doctor/scientists conclusions
• theoretical authorities whose say-so gives us theoretical reasons to do something
• they are authorities

Question 12

What is the key difference between theoretical and practical authority>

Answer 12

• the say-so of theoretical authority (doctor) gives us reason to believe that something is true
• but that reason does not purport to preclude us from balancing against it reasons drawn from our own well-informed view on whether what they say is true
• the say-so of practical authority (officer) gives us reason to act as they say
• and that reason does purport to preclude us from reasoning on the basis of our own view (however well-informed) on whether that is the right thing to do

Question 13

In the context of legal authority, what are content-independent practical reasons given by?

Answer 13

statutes, statutory instruments, by-laws, contracts, wills, ratio decidendi of past cases

• give us reason to act in a certain way

Question 14

In the context of legal authority, what are content-independent theoretical reasons given by?

Answer 14

obiter dicta, writings of legal scholars, reference works (dictionaries), decisions of foreign courts

• give us reason to believe that the views put forth by the relevant experts are true

Question 15

What is practical authority otherwise known as in the legal context? Give an example

Answer 15

binding

• the ratio decidendi of a precedent decision is said to constitute ‘binding’ authority

Question 16

What is theoretical authority otherwise known as in the legal context? Give an example

Answer 16

persuasive

• the obiter dicta are said to constitute ‘persuasive’ authority