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De lege ferenda is a Latin term that means “the law as it should be” or “the law of the future.” The phrase is often used in legal definitions in contrast to de lege lata, or, “the law as it exists.” It is usually found in discussions that promote a change to current law, or a development of a new law to support new or future circumstances.
Throughout history, even the greatest of legal systems have undergone regular adaptations. New technology, changing social norms, and even war prompt frequent additions and changes to existing laws. De lege ferenda, when used in context, indicates that the speaker or writer is going to propose an idea that would alter existing law through addition or repeal, or promote a new law. It serves as a kind of keyword to let an audience know that what is being proposed does not conform to current law.
There are a variety of reasons why a person, whether a legislator, executive, philosopher, activist, or regular citizen, may recommend alterations de lege ferenda. Sometimes, a change might be called for by the revelation of new information. Laws banning the recreational use of opium became common in the late 19th and 20th century at least in part after it became unavoidably apparent that the drug caused chemical addiction. The first laws banning opium, therefore, departed from de lege lata to create de lege ferenda.
Changes in societal perceptions are also a major reason why challenges are made to the law as it exists. Laws making segregation illegal, allowing interracial marriage, prohibiting discrimination, and giving women and minorities the right to vote, are all instances of de lege ferenda prevailing over existing law. Generally, invoking social change through law proves an uphill battle, many that insist on such alterations must wait decades for these changes to be implemented.
Studying legislative history, or all of the documents and pertinent information that went into creating de lege lata, can also sometimes lead to an alteration of the law. Some people study legislative history in order to get a better understanding of the intent of the legislators. If the existing law can be shown to definitively conflict with the legislative intent, such as by alterations in word meaning over time, or the creation of new technology not specified in an original law, a de lege ferenda argument can sometimes be built. Using legislative history is a controversial area, however, and some regions refuse to accept laws based on arguments of misinterpreted intent.
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