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".
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". Lacuna is a related word which means "gap, void,
defect, want, or loss" and is used to indicate a gap in the law.
Lacunae are distinct from loopholes, in which a law exists but which
can be circumvented legally due to an unforeseen or unintended
inadequacy in the 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
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
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. Note that municipal courts enforcing
international law are not constrained to declare an area non
Law Dictionary (8th ed. 2004)
^ See Charton T. Lewis, A
Latin Dictionary, liqueo 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.
^ Garner BA. (2001). A dictionary of modern legal usage, p. 496.
Oxford University Press. See also Charton T. Lewis, A Latin
^ See for example Luhmann,
Law as a Social System (Oxford, 2004), at
^ Nourse LJ to that effect in  3 WLR 1118 : 80 ILR 135
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