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Non liquet

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In law, a non liquet is a situation where there is no applicable law. Non liquet translates into English from Latin as "it is not clear".[1] According to Cicero, the term was applied during the Roman Republic to a verdict of "not proven" where the guilt or innocence of the accused was "not clear".[2] Lacuna is a related word which means "gap, void, defect, want, or loss" and is used to indicate a gap in the law.[3] Lacunae are distinct from loopholes, in which a law exists but which can be circumvented legally due to an unforeseen or unintended inadequacy in said law. A lacuna, on the other hand, is a situation in which a law or provision is lacking in the first place.

That is to say, a court comes to the conclusion that the situation engaged in a case has no answer from the governing system of law. This is of particular relevance to international law since international courts, be it the International Court of Justice or ad hoc tribunals, cannot invent law to redress a lacuna. As has now become the practice, the last resort that can be taken recourse to in deciding contentious cases is the widely accepted law of civilized nations (see generally Barcelona Traction, as accepting the doctrine of estoppel as part of international law). The ex aequo et bono jurisdiction has to date never been accepted by states, and it is believed[citation needed] that states would never accept it. Thus, absence of determinable international law leads to the court declaring something non liquet. But it has been argued by many that invoking of the non liquet doctrine is opposed to the notion of law being a complete (and autonomous) system.[4] Note that municipal courts enforcing international law are not constrained to declare an area non liquet.[5]

More specifically, non liquets, called also lacunas or legal gaps, can be divided into:

  • extra legem gap (gap outside the law), called also an uprovided case or casus omissus – arises when a specific case or legal issue is not explicitly dealt with in written law
  • intra legem gap (gap within the law), called also an interpretational gap or indeterminacy gap – occurs when there is a statutory provision which regulates the case at hand, but this provision is vague or equivocal
  • contra legem gap (gap against or contrary to the law) – comes into being when there is a statutory provision which applies to the case at hand but this provision leads in this case to an unwanted outcome
  • technical gap, called also an intrinsic gap, constructional gap, gap of passivity, vertical gap or sui generis gap – consists in the lack of a larger part of statutory law which according to law should be enacted (issued), especially such that disenable passing of a judicial or administrative decision or working of the institution which are envisaged by the law.
  • gap of conflict or collision, called also a praxeological (teleological) gap, logical gap or gap by contradiction – takes place when two or more statutory provisions contradict each other
  • de lege ferenda gap, called also a gap of demand – is a gap that cannot be filled in another way than by an amendment to a statute made by the legislature.

The other kinds of non liquets are: a) axiological gaps (evaluative, subjective gaps), b) real gaps (objective gaps), c) fake gaps (seeming gaps), d) evolutionary gaps. The first are dependent on evaluation on the part of those who assert that they occur. The second exist in a way that is independent of such evaluation. The third are the result of misconception and in fact are not gaps. The four are gaps that have come into being due to recent changes in the life of society (its cultural, political, economical and moral background) or due to the technological advance and growth of knowledge and wisdom.

In common law (case law) a counterpart of a legal gap is the so-called case of first impression.

Gaps are filled by recourse to analogy (legis and iuris), reasoning from a legal principle(s), an argument a fortiori, an argument a contrario, other kinds of inferences from norms or some other less constrained judicial considerations.[6]

See also

References

  1. ^ Black's Law Dictionary (8th ed. 2004)
  2. ^ See Charton T. Lewis, A Latin Dictionary, liqueo[1] and Cic. Clu. 18.76. Deinde homines sapientes et ex vetere illa disciplina iudiciorum, qui neque absolvere hominem nocentissimum possent, neque eum de quo esset orta suspicio pecunia oppugnatum, re illa incognita, primo condemnare vellent, non liquere dixerunt.[2]
  3. ^ Garner BA. (2001). A dictionary of modern legal usage, p. 496. Oxford University Press. See also Charton T. Lewis, A Latin Dictionary[3]
  4. ^ See for example Luhmann, Law as a Social System (Oxford, 2004), at p. 281.
  5. ^ Nourse LJ to that effect in [1988] 3 WLR 1118 : 80 ILR 135
  6. ^ See Maciej Koszowski, The Scope of Application of Analogical Reasoning in Statutory Law. American International Journal of Contemporary Research no. 1/2017 (v. 7), pp. 17-22, 24-27.

Bibliography

Maciej Koszowski, The Scope of Application of Analogical Reasoning in Statutory Law. American International Journal of Contemporary Research no. 1/2017 (v. 7): 16-34.

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