Unlawful / Illegal

In the Times Online law section (every Tuesday, subscription should be free – it was when I joined), one column is called ‘Your Shout’. Here, people from the College of Law, the solicitors’ college for training for exams, answer questions. Now I have been to the College of Law twice, six months at Chester and six at Lancaster Gate – this was in the old days when the courses were shorter – and there were some good people there. But their understanding of etymology seems a bit weak!

(Actually, if you go to the law section and click on the Your Shout title in the left-hand margin, you do get a list of all the old ones, but November 11th is not up there yet).

On November 11th (I haven’t got the link but it will be in the archive, which costs money to use), someone asked what the difference is between unlawful and illegal. The answer, quite correct, was that they mean the same thing. The writer went on to say, however, that this was a case of two interchangeable words, resulting from the fact that before 1731, French was the language of the law. Later, the old French terms were used alongside the English. Unlawful is an English word, whereas illegal is a French one.

bq. Many legal documents, particularly old deeds, wills and trusts, retain the habit of doubling up terminology in phrases such as “beneficial and equitable” ownership, “goods and chattels” and “give and devise”. In each case the first word derives from English, the second from French, but they mean the same thing.

Just a minute – these examples are doublets. Who says ‘unlawful and illegal’, and where is the Anglo-Saxon? Law looks like French loi to me, and legal looks Latin. I also have grave doubts about ‘beneficial and equitable’ as representing ‘English’ (do they mean Anglo-Saxon?) and French.

There are many doublets in legal usage, and they aren’t all combinations of synonyms. Some of them actually mean two different things. And ‘unlawful and illegal’ is not one of them. As long-term German Internet users might write,

bq. This column is always happy to “translate” any incomprehensible terminology that readers find in their legal documents.

Yes, well…Any suggestions? This could be fun.

The letters column this week continued the amusement. There was one suggestion that illegal means criminal and unlawful means contrary to civil law or administrative regulation. I understand the feeling, but I don’t think there is a difference. However, the distribution of the terms is probably different. Another letter I didn’t understand:

bq. When reading law desultorily (and ultimately unsuccessfully) at Cambridge in the late Sixties, I was taught that “unlawful” means “unsanctioned by law” and would apply to adultery, for example, so that not everything unlawful is “illegal” in its dictionary sense of “against the law”, that is, an offence.

There seems to be a feeling that unlawful is a bit weaker than illegal. I am not going to get to the bottom of these terms now, but let me give one example. In English contract law, one of the topics is contracts that are ‘illegal’, either by statute or at common law. These are a very disparate bunch. There are contracts to commit a crime, which are criminal themselves. Then there are contracts in restraint of trade (wettbewerbsbeschränkende Absprache), which may be illegal because they are against public policy, but some of which are absolutely legal.

It may well be that I would use the word unlawful in less serious cases and illegal in more serious ones, but they are indeed synonyms, I think.

Garner, in A Dictionary of Modern Legal Usage, says illegal, illicit and unlawful are fundamentally synonymous, although illicit has moral overtones.

bq. Illegal is not synonymous with criminal, although some writers mistakenly assume that it is. (See undocumented alien.) Anything against the law – even the civil law – is, technically speaking, ‘illegal.’ See illegal contract, nonlegal & unlawful.

This is beginning to remind me of a New Yorker cartoon with the caption ‘It’s lawyerly, all right. But it’s not legal.’

3 thoughts on “Unlawful / Illegal

  1. My condolences on your double visit to the College of Law a.k.a. Law Parrot Factory that has now – after a Solicitors’-centred gap of many years – re-introduced Bar Finals (Bar Vocational Course). A long time ago I did revision crammer courses at the Lancaster Gate branch before it moved into a disused British Library Warehouse on Storey Street off Tottenham Court Road. Now, for the first time, it offers a distance-learning LLB in conjunction with the the Open University.

    I agree with your comments on the non-difference between unlawful and illegal. Eng. & Welsh indictments gloss over the problem with drafting like ‘X did, contrary to law, on the… steal a packet of crisps from the Y store’.

    Some doubling-up is indeed otiose, maybe the tenant yielding up, delivering up and surrendering – yes, first one vaguely Anglo-Saxon and the last one Latin – tenanted premises at the end of the lease. ‘Devising and bequeathing’ (rather than giving), though, refer to two different kinds of property: first one land and the second one ‘chattels’. In their turn, chattels could include a lease (chattel real)that goods do not. Also there are old Eng. probate & succession cases that say chattels include money and banknotes. Effects, contents, belongings, goods, money etc. might be a user-friendlier way of making the point.

    Elmer Doonan in Drafting Techniques mistakenly – in my view suggests – ‘sole and exclusive’ is a tautology when I have known US attorneys blow their top over the suggestion that a sole agency: original manufacturer plus one distributor – is the same as an exclusive agency: manufacturer cut out of the picture.

    As a translation technique, there is some merit in including two terms for one, even though some Notaries Public deprecate the practice and won’t certify two words translated for one term. If one’s off-target, the chances are that the other will be on-target.

  2. actually, there is a difference between unlawful and illegal. illegal is something that is against the law and is also considered to be a crime. unlawful, however, means that the action is against the law but is not necessarily a crime.

  3. @eric: Well, I can’t confirm that from my own reading (mainly English law). I think both illegal and unlawful can mean either criminal or not. For instance, we have a crime of ‘unlawful entry’, and there are ‘illegal contracts’, some of which are criminal (such as a contract to commit a crime) and some aren’t (contracts in restraint of trade that stop people from working for competitors can be perfectly legal, or against the law but not criminal).

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