COMSATS University Islamabad The Doctrine of Precedent Discussion Questions

Workshop – TW 3 & 4 – Student QuestionsQuestion 1 (Austin – 7/8/21)
Hi Tim,
In Lecture 1, you said that one common and main definition of law is: “The law is a system
of rules made by the state and enforceable by prosecution or litigation”.
I think this definition neglects the judicial aspect of Common Law systems, particularly the
Doctrine of Precedent. Theoretically, each court decision is supposed to be based on an
earlier decision (precedent). This means that a judge would not hand down a sentence
based on a rule made by the state (i.e. through Parliament), but rather the judge would be
handing down a sentence based on previous cases (in other words, the actions of previous
convicts and their court case influences the sentencing decisions of the current case at
hand).
The phrase “made by the state” in your definition implies that laws that are only made
through Parliament and neglects the fact that judges can also “make a law” in the sense that
they use the Doctrine of Precedent to hand down a sentence, which can effectively reinterpret a statute. Just my thoughts.
Question 2 (Zyla – 6/8/21)
Why does the state/territory court hierarchy does not include high court of Australia
(original jurisdiction)?
Question 3
What if both parties do not agree to the arbitrator? Will they then have to bring the matter
to Court? Is there a penalty?