The Hiroshima Law Journal Volume 41 Issue 1
2017-06-23 発行

法哲学における不法概念の一考察

Concept of Unlawfulness in Legal Philosophy
Der Begriff des Unrechts : eine rechtsphilosophische Überlegung
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abstract
The traditional view of the concept of unlawfulness (Unrecht) as studied through that of law (Recht) derives from a passive definition of not-lawfulness (Nicht-Recht).
“Iniuria ex eo dicta est, quod non iure fiat (Digesta.47.10.1pr).” Contrarily, it has also been said that, “Was nicht verboten ist, ist erlaubt” (“Wallensteins Lager” by Schiller). This, however, seems rather a tautology. At the very least, not-lawfulness alone does not adequately reflect that which is wrong and unjust. In other words, it broadly includes illegal conducts that are neither wrong nor unjust. This is problematic in a time of active legislation, especially in criminal law. Therefore, this paper attempts to shed light on the active side of unlawfulness itself. First, achievements and problems are examined from an overview of traditional theories. Then, following the argument about the distinction between illegality and unlawfulness, the present paper will draw a distinction between passive disturbance of legal interests and active wrongdoing.
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