Know your words: Unlawful

Posted on Tue 09 Aug 2011 @ 9.00am UTC



HOW MANY TIMES have you seen or heard these words being used?

  • unlawful
  • illegal
  • illegitimate
  • illicit
  • immoral
  • unlicensed
  • criminal

Do you know their meanings, or the nuances (subtle differences in meaning) they impart?

At the most basic level, all of these words describe one thing: not in accord with law.

Such is the sad state of education today (worldwide): many people seem unsure how to use these words, sometimes even by lawyers themselves.

Set yourself on fire for not knowing how to use these words if you are:

  • either a 25-year-old and read fairly regularly (e.g. one magazine a week)
  • or educated to senior secondary level with English language as one of your school subjects
  • or a lawyer
  • or an English speaker who is at least one of the above

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Today, we’ll look at the word unlawful and its related forms, and go on to the other words in separate posts for the rest of the week.

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unlawful, unlawfully, unlawfulness

These words date from 1250-1300 from the Old English unlaweful, which is related to the Middle English laghful of 1250-1350.

All these words mean ‘against the law‘ — not legal, not lawful, not in keeping with the law, not permitted or allowed by law.

In fact, using the phrase ‘against the law’ is a very safe way of saying things in lieu of either unlawful or illegal. This is mainly because ‘against the law’ fully covers the meanings of both unlawful and illegal, but both of which by themselves have their own subtle (therefore legally dangerous) meanings.

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unlawful (adj)

more unlawful (comparative), most unlawful (superlative)

Primary meanings

This adjective has three main meanings:

  1. not permitted by law
  2. not recognised or authorised or justified by law: an unlawful marriage
  3. without reason or excuse in law: an unlawful killing

The chief meaning is sense 1:

The sale of alcohol to minors is unlawful.

It is unlawful to set off fireworks within city limits.

Secondary meanings

Unlawful has two other meanings, both archaic:

  • against accepted morality or conventionillicitimmoral
  • illegitimateborn out of wedlock

Be warned that those two secondary meanings are antiquated and outdated, and therefore dangerous for today’s use. Both were commonly used in an earlier time but rare in present-day usage.

Those two archaic definitions still exist in dictionaries mainly for interpreting antiquated texts. Don’t use them unless for special effect, i.e. you wish to suggest the older time, as in religious or historical novels.

Usage

Unlawful and illegal are frequently used interchangeably. Most major dictionaries (including law dictionaries) state the two words have slightly different meanings, that unlawful is to go against or contradict the rules that apply in a particular context (and may not necessarily be illegal) whereas illegal specifically refers to breaking or violating statutes (law) or some codified regulations (as in organised sports):

an illegal seizure of property

an illegal block in football

an unlawful claim to the inheritance

to take unlawful advantage of the trading situation

the use of unlawful violence

They claimed the ban was unlawful.

That’s dynamite on paper, but that still doesn’t help us figure out how something not permitted is different from forbidden by law.

The biggest problem is the extremely close meanings of the two words. Something that is not allowed by law (unlawful) is arguably also something forbidden by law (illegal). Where to draw the line? The subtle meaning differences sometimes challenge even lawyers.

At the end of the day, it is easier all round just to rely on conventional law-school understanding that:

  • illegal is something that is prohibited/banned by specific statute or is illegal at law on the grounds of public policy
  • unlawful is something that is not justified by any legal principle or right, or by any statutory powers given to a particular person

And that makes sense, too, mainly because something like unlawful killing has to be unlawful rather than illegal insofar as (a) no country could ever possibly legislate a ban on the killing of a person (since it happens in real life regardless of any law), and (b) any legislation simply defines the killing of a person is a criminal act unless justified at law (such as an execution or in military combat).

The word illicit also has a similar meaning of breaking the rules, but this tends to encompass things that are forbidden or disapproved of by custom or society (an illicit love affair).

Exposition

Let’s try explaining the meaning of unlawful in another way:

For example, a jury decided on 7 April 2008 that Princess Diana and Dodi al-Fayed had been unlawfully killed by grossly negligent driving of their driver and also of the vehicles tailing their car.

In English law, unlawful killing is a possible verdict returned by an inquest in England and Wales when someone has been killed by one or several unknown persons. It means the killing was done without lawful excuse and in breach of criminal law. Unlawful killing includes murder, manslaughter, infanticide and causing death by dangerous driving. The appropriate standard of proof is that the unlawful killing must be beyond reasonable doubt (i.e. when the evidence was so overwhelmingly obvious that death would result, that no other thing is taken into account). If this standard is not met, a verdict of accidental death or death by misadventure should be considered on the balance of probabilities. A verdict of unlawful killing generally leads to a police investigation, with the aim of gathering sufficent evidence to identify, charge and prosecute the culprit(s).

(By the way, homicide is simply the killing of one human being by another, and not necessarily a crime unless the circumstances of the homicide fall within outlawed behaviour. You’re watching too much American TV shows if you think homicide is a crime.)

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unlawfully (adv)

more unlawfully (comparative), most unlawfully (superlative)

This adverb chiefly means not lawful or against the law in the sense of something (usually an action) is:

  1. acting contrary to or in defiance of the law
  2. not conforming to the law
  3. not permitted by law

In other words, it describes something that goes against the law on purpose in some way:

John and Mary were unlawfully married
because John was still married to Lisa at the time.

Unlawfully also has a specialised legal meaning in pleadings (court presentations). This word is often used in indictments in the description of an offence. It is necessary to use unlawfully when a statute creates an offence (when the offence in question didn’t exist at law) to describe that offence (1 Moody, Cr. Cas. 339), but it is unnecessary whenever the offence already existed at law and is manifestly illegal (1 Chitty, Crim. Law 241).

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unlawfulness, unlawfulnesses (n)

Unlawfulness is both an uncountable (mass) noun and a countable noun.

As an uncountable noun, it means the state/quality of being unlawful/illegal. In other words, it is the quality of failing to conform to law.

As a countable noun, it means an unlawful act.

Examples:

“It’s also a license to do good; to disclose injustice and unlawfulness
and inequities; and to encourage their swift correction.”

(John McCain, quoted in USA Today, 14 April 2008)

“We told the police that they are simply compounding the
unlawfulness of the last two years.”

(Gareth Peirce, quoted in USA Today, 10 March 2004)

Unlawfulness is sometimes confused with lawlessness (which is anarchy: a state of chaos, confusion, disorder or irresponsibility through lack of law)

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IN TOMORROW’S INSTALMENT

Unlawful and illegal are very close in meaning, and many people often confuse the two. Find out how the two words differ.

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Posted in: Colour Section