Hm. I was also thinking about the whole system, and I'm really not sure why a legal system needs to be able to answer such questions.
> What we don't have or can't have is a court case where the judge says, "The legality of this is indeterminate."
Why not? In reality judges can say "the legality of this is not for this court to decide" after all, can't they? And while (IIRC) the Supreme Court must use the law to establish new law, even then they can say "the law says nothing about this - go bug the legislative, not judicial". And then the legislative doesn't really need to use the existing law itself to codify new laws (as I get it, they can even pass laws that contradict the Constitution - it'll be up to the judicial to strike them down as such).
The way I understand how things are in real world, a legal system should be able to state if something is illegal, but it has no need to be able to universally state whenever something is legal or (and doesn't normally do so, save for doing it as a way to make exceptions from broader rules) or not. Kinda like how criminal law decrees one as "guilty" (proven to have done something illegal) or "not guilty" (not proven to have done something illegal) but never declares one innocent (and it doesn't need to - it works without it). Maybe this is where I'm possibly getting confused?
Can you please help me understand why do you think a legal system needs to be able to always answer that legality question, and particularly what's the use case for it (what does such property tries to achieve in practice)?
> What we don't have or can't have is a court case where the judge says, "The legality of this is indeterminate."
Why not? In reality judges can say "the legality of this is not for this court to decide" after all, can't they? And while (IIRC) the Supreme Court must use the law to establish new law, even then they can say "the law says nothing about this - go bug the legislative, not judicial". And then the legislative doesn't really need to use the existing law itself to codify new laws (as I get it, they can even pass laws that contradict the Constitution - it'll be up to the judicial to strike them down as such).
The way I understand how things are in real world, a legal system should be able to state if something is illegal, but it has no need to be able to universally state whenever something is legal or (and doesn't normally do so, save for doing it as a way to make exceptions from broader rules) or not. Kinda like how criminal law decrees one as "guilty" (proven to have done something illegal) or "not guilty" (not proven to have done something illegal) but never declares one innocent (and it doesn't need to - it works without it). Maybe this is where I'm possibly getting confused?
Can you please help me understand why do you think a legal system needs to be able to always answer that legality question, and particularly what's the use case for it (what does such property tries to achieve in practice)?