If you were to ask a lawyer or a legal translator to explain the difference between “illegal” and “unlawful”, it would be interesting to hear the answer. An English-speaking lawyer with a sense of humour might suggest that one of them refers to a sick bird (“ill eagle”). Jokes aside, however, the lawyer might find it difficult to provide a technical answer. The difficulty arises in relation to both the English terms – “illegal” and “unlawful” – and also the Chinese terms, which comprise three possibilities: feifa, weifa and bu hefa.
The most likely answer that the lawyer will give is that “illegal” or feifa is more serious in tone and is more likely to be used in relation to criminal offences. Although correct, this is only part of the answer.
The position in English
When considering the difference between “illegal” and “unlawful”, a good place to start is the Oxford English dictionary. This contains the following definitions:
Unlawful: not conforming to, permitted by, or recognized by law or rules;
• the use of unlawful violence
• they claimed the ban was unlawful
Illegal: contrary to or forbidden by law, especially criminal law;
• illegal drugs
• an illegal immigrant
The dictionary goes on to explain the difference as follows:
Illegal and unlawful have slightly different meanings, although they are often used interchangeably. Something that is Illegal is against the law, whereas an unlawful act merely contravenes the rules that apply in a particular context. Thus handball in soccer is unlawful, but it is not illegal. A third word with a similar meaning is illicit: this tends to encompass things that are forbidden or disapproved of by custom or society, as in an illicit love affair.
Even this explanation, in my respectful opinion, provides only part of the answer. An additional point of distinction is that an “unlawful act” may arise in a situation in which there is no express prohibition, but the act nonetheless results in non-compliance with the relevant law or rules (e.g. a traffic accident). In addition, an unlawful act does not necessarily lead to the imposition of a penalty. An “illegal act”, on the other hand, is used to describe an act that breaches an express prohibition and usually results in the imposition of a penalty. It is most commonly used in relation to a criminal offence.
A further point of distinction is that, in the context of both the criminal law and the civil law, the term “unlawful” often implies an act that is done without lawful justification or authority.
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com
