8 Ways to Fail to When it Comes to Making Law

Laws made by Parliament are called ‘Statutes’ or ‘Acts’. A law begins with a Bill which could come from a Ministry, a member of Parliament or a Senator. Said Bill then needs to be tabled either before the Dewan Rakyat or Dewan Negara. In general, once a Bill goes through three readings in each House and passes, it is presented to the Yang di–Pertuan Agong for royal assent. Upon assent, the Bill becomes an Act. If he does not assent within 30 days, the Bill automatically becomes an Act anyway. The process of making law seems straight forward enough. However, is it possible to fail when it comes to making law? According to Lon Fuller, there are in fact eight ways to fail when it comes to making law. These failures were illustrated by Fuller in the story of King Rex.

Story of King Rex

For context, in the story, King Rex was a mess of a judge and legislator. Based on his bungled attempts to create and maintain a system of legal rules, we can see that eight failures are as follows:

  1. A failure to achieve rules at all, so that every issue must be decided on an ad hoc basis
  2. A failure to publicize or at least to make available to the affected party, the rules he is expected to observe
  3. The abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change
  4. A failure to make rules understandable
  5. The enactment of contradictory rules
  6. The enactment of rules that require conduct beyond the powers of the affected party
  7. Introducing such frequent changes in the rules that the subject cannot orient his action by them
  8. A failure of congruence between the rules as announced and their actual administration  

Eight Desiderata

Fuller explains that these failures are mirrored by eight ‘desiderata’ or ‘eight kinds of legal excellence toward which a system of rules may strive’ and are embodied in the ‘inner morality of law’. The principles forming the inner morality of law are:

  1. Generality.
  2. Promulgation.
  3. Non-retroactivity.
  4. Clarity.
  5. Non-contradiction.
  6. Possibility of compliance.
  7. Constancy.
  8. Congruence between declared rule and official action

Therefore, if a law fails to conform to any of these eight principles, it cannot be properly called a law at all. It can thus be said that the law never even existed in the first place. However, Fuller’s approach to law making is not immune from criticism. Just because a law complies with Fuller’s ‘internal morality’ does not necessarily make the law an excellent one. For example, the apartheid (i.e. a system of institutionalised racial segregation) South African legal system probably satisfied all eight principles espoused by Fuller but it was frequently condemned by the United Nations for being a bad piece of legislation. However, in all fairness, it should be noted that Fuller contends that South Africa’s apartheid legislation departs from the demands of the internal morality of law because its legislation defined race arbitrarily. Even so, I personally find that his contention seemed rather forced but it merely goes to show that just because a law has met Fuller’s standards, it does not necessarily mean that the law is indeed good law.

In short, there are eight ways to fail to make law as per the story of King Rex. As such, to successfully make a good law, a law should ideally follow the eight desiderata laid down by Fuller. However, just because a law complies with the eight desiderata does not necessarily mean that Parliament has succeeded in its endeavour to make a law.