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It is said that unlawful means "not permitted by law" and illegal means "forbidden by law".

However, I cannot recall ever seeing the phrase "it is illegal to ..." when reading legal text. Instead, the phrasing used is "it is unlawful to...".

Why does legal text never (or at least very rarely) seem to say that something is illegal rather than merely unlawful? Is there a legal/technical reason, or does it just sound fancier?

  • I would be hard pressed to identify a situation where they had different legal meanings. Both forms are fairly commonly used and it may come down to the style guide of the particular legislative services department or legislative committee staff (each of which drafts statutes on the advice of legislators in many jurisdictions on a bipartisan basis), than due to any actual difference in meaning. – ohwilleke Dec 20 '17 at 20:12
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I found an example of "is illegal" in RCW 78.52.467: "If the department believes that any oil, gas, or product is illegal...". There are some examples of "shall be illegal", e.g. RCW 39.84.050 "It shall be illegal for a director, officer, agent", where "illegal" is used predicatively. I tenatively conclude than the latter kind of use is less frequent that the adjectival use.

Black's Law Dictionary 2nd Pocket ed does not include "illegal" except in some "illegal"+noun constructions, but it does list "unlawful" alone. "Unlawful" has been used since 1387 (J. Trevisa translation of Ranulf Higden Polychronicon), whereas "illegal" only goes back to 1626. Legal language tends to be very conservative, so the fact that "unlawful" got there first (aided no doubt by the fact that it is an Anglo-Saxon construction, not a medieval Latin borrowing) gives the term priority in legal usage. It sounds more legal to say "(un)lawful" that "(il)legal".

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    Now I want to try to use "unlawful and illegal" and see if anyone accepts that construction! – Cort Ammon Dec 20 '17 at 2:47
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Because we have synonyms. Also, one take is because, semantically, there is a difference in degree. Something illegal would be expressly proscribed by a law; something unlawful would mean something is not expressly authorized.

Another take, however, says that illegal means against the law while unlawful is an act that is a contravention of rules in a given context. An example of this explanation would be catching the ball with your hands in a soccer/futbol game (assuming you are not tending goal)... It would be unlawful, but not illegal.

Finally, this answer over at StackExchange English provides another take.

Addition:

According to Grammarphobia.com, in Black's Law Dictionary, illegal is "forbidden by law; unlawful." Unlawful is "not authorized by law; illegal." However, unlawful includes two other parts: "criminally punishable" and "involving moral turpitude."

However, earlier editions of Black's, such as the 1910 second edition say:

‘Unlawful’ and ‘illegal’ are frequently used as synonymous terms, but, in the proper sense of the word, ‘unlawful,’ as applied to promises, agreements, considerations, and the like, denotes that they are ineffectual in law because they involve acts which, although not illegal, i.e., positively forbidden, are disapproved of by the law, and are therefore not recognized as the ground of legal rights, either because they are immoral or because they are against public policy. It is on this ground that contracts in restraint of marriage or of trade are generally void.”

Finally, according to Oxford's English Dictionary, illegal comes from the French word illégal or the Latin illegalis whereas unlawful comes from Old English.

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  • Thanks! But if we go with the idea that they're synonyms, then shouldn't they both be used to a degree? Why is only one of them used? – user541686 Dec 19 '17 at 21:33
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    "something unlawful would mean something is not expressly authorized." I always thought that everything was legal except for whatever the law makes illegal. Therefore, nothing needs express authorization. Is that not the case? – Matt Dec 19 '17 at 21:36
  • @Mehrdad, for all intents and purposes they are synonyms. They are used colloquially as synonyms by nearly everyone and they are often used even in technical or legal writings interchangeably. That said, semantically, I'm sure you can see how illegal / unlawful could be analogized to bad / not good. That said, this isn't really even a legal question, but I provided you three various opinions. – A.fm. Dec 19 '17 at 21:57
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    Funny, in software engineering we use exactly the opposite convention: It's "illegal" to write invalid code, but not unlawful (the compiler will yell at you, but the police won't try to arrest you). – Kevin Dec 20 '17 at 5:51
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    At least in America, it seems like your second paragraph is contrary to common usage. In American Football, for example, there are a number of illegal plays: illegal block, illegal shift, illegal formation, illegal touch... but unlawful usually refers only to the law. The police won't get involved if you make an illegal block in a football game, but they might if you sneak into the game and commit unlawful entry. – fluffysheap Dec 20 '17 at 11:07

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