Assignment Questions:

1. Critically discuss the importance of judges being bound to follow previous decisions of higher courts.

2. Compare and contrast any two jurisprudential theories.

3. What is the difference between the literal and historical approaches to constitutional interpretation? Critically discuss.

4. To what extent are decisions of the European Court of Justice more important in Irish law than decisions of the European Court of Human Rights? Critically discuss.

Jurisprudence or legal theory is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.^[1]

Modern jurisprudence began in the 18th century and was focused on the first principles of natural law, civil law, and the law of nations.^[2] General jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists.^[3]

This article addresses three distinct branches of thought in general jurisprudence. Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason, and it is from these laws of nature that human laws gain whatever force they have.^[3] Analytic jurisprudence (Clarificatory jurisprudence) rejects natural law’s fusing of what law is and what it ought to be. It espouses the use of a neutral point of view and descriptive language when referring to aspects of legal systems.^[4] It encompasses such theories of jurisprudence as “legal positivism”, which holds that there is no necessary connection between law and morality and that the force of law comes from basic social facts;^[5] and “legal realism”, which argues that the real-world practice of law determines what law is, the law having the force that it does because of what legislators, lawyers, and judges do with i