In law, a non liquet is any 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". Strictly, a finding of non liquet could result in a decision that the matter will always remain non-justiciable, whereas a lacuna denotes within that concept a lacking hence that the matter should in future be governed by law. Loopholes are a subset of lacunae. A lacuna describes every specific matter about which no law exists, but a body of public, judicial or academic opinion believes it should, to address a particular issue. A loophole, where properly defined by contrast, denotes that a set of laws addressing a certain issue exists, but can be circumvented due to a technical defect in that law.
All cases which establish a new rule or exception fill lacunae in the existing law. If in a higher court in the jurisdiction, each of these are decisions thereafter considered to be a binding precedent; in England and Wales if in the various divisions of the High Court or below then these are of persuasive precedent value.
Wider scope of morality
Moral principles and norms are broader than the intended reach of any system of laws which permits human autonomy and diversity of thinking or action.
“It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.”
If this one-to-one relationship is accepted, this defines a definitive master set from which the subset, true legal lacunae are all contained.
A non liquet applies to facts with no answer from the governing system of law. It is prominent in international law as global forums such as the International Court of Justice and United Nations ad hoc tribunals are reluctant to invent or heavily mould law to redress a moral-legal lacuna. One last resort in substantively deciding disputes is to seek the system to embrace accepted procedural or non-controversial law of civilized nations. An instance is the Case Concerning Barcelona Traction, Light, and Power Company, Ltd which took the doctrine of estoppel into international law. Such out of constrained confines jurisdiction has been heavily limited or ruled out by most treaty contracting parties as to their substantive obligations. Rather than use the term non-justiciable, the forum may flag up that it would like the clarity to decide on such matters in future by stating it is non liquet. Luhmann criticses such indecision as opposed to the paradigm of law being a complete system. English jurisprudence holds that municipal courts enforcing international law are not constrained to declare an area non liquet.
