De lege lata, also known as lex lata, is a Latin phrase that means “as the law is,” or “the law that exists.” This term is often used in contrast with a similar term, de lege ferenda, which means “the law as it should be.” In legal terminology, the concept is often used to compare and contrast an existing law to a proposed law.
Law is not always comprehensive. History has shown that, rather than being an absolute, law is often made to shift and change with corresponding changes of the time. Addenda, amendments, and repeals are frequently made to change the law from a current state to a future one based on new concerns or changing social politics. In order to understand how to change a law, de lege lata must first be understood.
For example, understanding this concept can be important if a lawmaker wishes to repeal or change a law based on a theory of legislative intent. This is a controversial subject, as some lawyers, politicians, and judges feel that all decisions and laws should be based on what the law actually says, rather than what it was meant to say. Studying legislative history to better understand legislative intent in order to effect a change in law that will make it de lege ferenda as opposed to de lege lata is prohibited in some systems and encouraged in others.
One of the problems that may lead to renewed study and controversy over de lege lata is that laws are often written in formal and archaic language. Words change meaning and fall out of use altogether along the march of time, making it vitally important to make sure that what the law says is what the law actually means. Arguments over what the best interpretation of a particular law take place both regularly and vigorously throughout legal circles.
In contrast, de lege ferenda is often interpreted very narrowly. There are many possible ideas and maxims that presumably could be law, but these are not the basis of this concept. To be truly contrasted with de lege lata, a law must be either proposed or at least feasibly conceived. This can help limit debate on changes or new laws to those that are truly legislatively conceivable, as opposed to ideas that may be good but are often impractical or impossible to make into law.
