State the eight (8) desiderata which, according to Fuller, would provide coherence and logic and order in a legal system. (6 marks)
LAW531: Jurisprudence I. April 2005.
In The Morality of Law, Lon Fuller identified eight desiderata, or principles of legality, which captured the essence of the rule of law. They are:
- Laws must be general and specifies rules prohibiting or permitting certain kinds of behaviour;
- Laws must be widely promulgated. The public needs to be able to access them and know what the laws require.
- Laws are prospective in nature. It prescribes the individual’s future behaviour, not prohibiting the behaviour of a past action.
- Laws must be clear. The citizens should be able to identify what laws prohibit, permit, or require.
- Laws must be non-contradictory. Within the same jurisdiction, one law should not prohibit an action concurrently as another prohibits the same thing.
- The law must not ask for the impossible.
- Laws must remain relatively constant – not changing too frequently that it becomes impossible for citizens to comply.
- Finally, there needs to be a congruence between what the written statute declares and how officials enforce those statutes.
At the same time, one should note the problem with these desiderata: they are procedural and neglects the content of the law.
