legal-concepts legal-terms
Can the judiciary &quot;legalize&quot; something?
<p>The headline for an <a href="https://www.nytimes.com/2017/05/24/world/asia/taiwan-same-sex-marriage-court.html" rel="nofollow noreferrer">article</a> in today's New York Times reads: "<em>Court Ruling Could Make Taiwan First Place in Asia to Legalize Gay Marriage</em>"</p>

<p>My question is whether this can truly be considered "legalization." This seems to be the case based on the <a href="https://www.merriam-webster.com/dictionary/legalize" rel="nofollow noreferrer">definition</a> of the word:</p>

<blockquote>
  <p>to make legal; especially :  to give legal validity or sanction to</p>
</blockquote>

<p>But for some reason I have the feeling that only those with legislative power (rather than interpretive power) can truly "legalize" something. I would argue (not very confidently) that if a court decides that something is legal based on interpretation of the <em>currently existing</em> laws, than that thing in some sense has <em>always</em> been legal. I think I'm wrong about this, but I just want to make sure.</p>

<p>Newspapers often say things that are not technically true by the standards of legal usage, especially in headlines which must be brief. "Legalize" is a popular or political concept, not a legal one. Instead, the legal concept underlying such court actions is that (1) an existing prohibition is unconstitutional, and thus such a law cannot exist, and (2) anything is legal unless it is specifically made illegal. "Legalize" is a reasonable term that describes what happens in such cases: to make something be legal (per (2) that means "remove a restriction").</p>
