Talk:Non liquet
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Mistake[edit]
I think there is a mistake here: I don't know how it's seen in common law, but according to German law (which should be nearer to Roman law anyway) non-liquet is broadly (also?) used when some fact has not been proven to the satisfaction of the court (if you are fit in German law, look at § 286 I of the German ZPO). Because there is neither proof nor counterproof as to the fact, the legal result is a matter of the burden of proof. In my view, it is NOT true when this article states non-liquet would be a situation where there is no legal solution. It's just plain wrong. This is my first Wikipedia talk entry. could somebody think the thing over and implement it? —Preceding unsigned comment added by 158.143.215.32 (talk • contribs) 21:33, 10 November 2006
- You are not right. However, the phrase: not liquet is so seldom used that it is almost forgotten now. The more popular are terms such as gap or legal gap or lacuna. This concern civl law legal system as well as common law legal system. Not liquet means something which is not clear.
This is also the case in legal systems which derive from the Spanish legal system, where non liquet refers also to not deciding a case, no matter if it is because of the lack of evidence or to the lack of legal norms. — Preceding unsigned comment added by 86.40.27.27 (talk • contribs) 17:47, 11 January 2011
I don't think there is a mistake. The problem is that the phrase is used differently in some domestic legal systems from the standard usage in international law. The solution is to reflect both usages. — Preceding unsigned comment added by 76.114.133.194 (talk) 16:14, 11 January 2014 (UTC)
Analogy[edit]
From the now-disambig page lacuna: In law, a lacuna arises when there is no previous authority directly dealing with the issue of the case at hand. As legislation is necessarily incomplete, judges therefore often have to resort to analogy to reach a judgment. Use or not as you will. Sanguinity 18:43, 25 November 2006 (UTC)
- The non liquet definition is not wrong, but as the entry above shows, the same legal term can have different connotations in different legal systems (another illustrative example is provided, e.g., by the different meanings of the concept of "public order" in civil and common law systems); this should probably be pointed out in a complete version of this entry. For a discussion of the concept of non liquet in international law (and a rejection of it), see Hersch Lauterpacht, The Function of Law in the International Community (1933). —Preceding unsigned comment added by 85.180.227.107 (talk • contribs) 14:31, 27 November 2006
This is not non liquet[edit]
The article is about lacunae, not about non liquet. Lacunae are a kind of problem, non liquet is a kind of solution (actually, the non-solution solution). Velho 20:30, 16 July 2007 (UTC)
The Free Dictionary has another definition for non liquet in the common law tradition, which may or may not be relevant here but is definitely different: a verdict given by a jury when a matter is to be deferred to another day of trial. 140.247.250.194 20:46, 27 September 2007 (UTC)
Black's Law Definition[edit]
The 9th Ed. of Black's Law Dictionary gives the following definition: "non liquet (non li-kwet or li-kwet). [Latin “it is not clear”] 1. Civil law. The principle that a decision-maker may decline to decide a dispute on the ground that the matter is unclear. • Even British judges formerly sometimes said Non liquet and found for the defendant. 2. Int'l law. A tribunal's nondecision resulting from the unclarity of the law applicable to the dispute at hand. • In modern usage, the phrase appears almost always in passages stating what a court must not do: tribunals are routinely disallowed from declaring a non liquet. — Abbr. n.l."
I'm sorry that I'm unable to provide a proper citation or link as I'm using my Westlaw account to provide the definition. The text currently in the article is a direct copy (links, external references and discussion) of the following: http://www.websters-dictionary-online.org/definitions/Non%20Liquet?cx=partner-pub-0939450753529744%3Av0qd01-tdlq&cof=FORID%3A9&ie=UTF-8&q=Non%20Liquet&sa=Search#906
To offer my limited International Law and law student perspective, here's how I understand non liquet and lacuna.
Non liquet refers to when the applicable system of law does not provide an answer to the resolution of a legal claim. In such instances, the court will declare non liquet and decline to make a ruling on the merits. In common law legal systems, non liquet should theoretically be impossible because the common law generally fills in gaps in statutory law. If there is no existing common law, then the courts will look to typical things like history and tradition to try and fashion the appropriate legal standard. However, in International Law, since the field is simply too large for treaties and international custom to provide guidance in every scenario, non liquet is more likely to be declared and a judgment on the merits withheld.
Lacuna (or plural lacunae) refers to a gap in the law that, per the aforementioned discussion, may result in non liquet. I'm pretty sure U.S. courts can't declare non liquet. However, I do think it's plausible that a U.S. court would rule against the party with the burden of proof on the issue since that party is tasked with identifying the applicable legal standard and presenting the facts that support judgment in his or her favor. Yet, U.S. courts have an independent duty to discern and apply the applicable law; so, I image they're still bound not to declare non liquet. This, of course, leads the discussion to an area more appropriate for a well versed legal scholar.
— Preceding unsigned comment added by Elreynolds04 (talk • contribs) 03:37, 27 January 2011 (UTC)
Misconception[edit]
The sentence: "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." is misleading and incorect, in my opinion. Lacuna and loophole have the same meaning. In loophole the law also does not exist and that is why some people can take advantage of it. Law does not exist because it is undergeneral as a rule, like in tax law which oversights some behaivours on the part of people which enable them not to pay a tax and so on. — Preceding unsigned comment added by Soonerthanlater2 (talk • contribs) 00:09, 19 August 2018 (UTC)
Loophole[edit]
Im my opinion, a loophole is the same as a lacuna in law or legal gap. If it is otherwise, please add some source as a reference. — Preceding unsigned comment added by Legalexpert2 (talk • contribs) 18:06, 6 November 2018 (UTC)
example section[edit]
The following section as offering an example of non liquet must be rewritten (if not omitted).
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.[1] Note that municipal courts enforcing international law are not constrained to declare an area non liquet.[2]