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ID 44525
file
title alternative
Concept of Unlawfulness in Legal Philosophy
Der Begriff des Unrechts : eine rechtsphilosophische Überlegung
creator
NDC
Law
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.
journal title
The Hiroshima Law Journal
volume
Volume 41
issue
Issue 1
start page
1
end page
21
date of issued
2017-06-23
publisher
広島大学法学会
issn
0386-5010
ncid
language
jpn
nii type
Departmental Bulletin Paper
HU type
Departmental Bulletin Papers
DCMI type
text
format
application/pdf
text version
publisher
rights
許可なく複製・転載することを禁じる。
department
Graduate School of Social Sciences
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