Illegal – Wikipedia

Illegal (O illegal ) ^[first] in law, indicates human behavior contrary to the legal system, as it constitutes violation of a duty or an obligation placed by a legal rule (called primaria ), to whom another rule (called secondary ) Richales a penalty. ^[2]

The behavior that constitutes the offense can be commissivi (i.e. a action ), when an obligation or negative duty (not to do), or omissive (i.e. a omission ), when instead they violate an obligation or positive duty (to do or give). The contrast between behavior and primary rule is called anti -juridicity .

According to Marco Tullio Cicero: “Allowed to say that the laws, which is more important. Nor is it that everyone can, it is allowed” (“What is allowed by the laws and customs of the ancestors is legitimate. Not everything that can be done is lawful”). This definition shows that even in ancient civilizations the distinction between lawful and unknown was very clear. Moreover, the Hammurabi code, one of the oldest collections of known laws, is essentially what in modern terms would be said to be a criminal code. This code shows how it soon emerged in the history of civilization the need to regulate the reaction against the offenses, subtracting it from the private initiative of the damaged (revenge) and demanding it to an authority, but also to limit, with predetermination in legislative seat, the power of the authority to decide whether and to what extent to apply the sanction.

In the oldest civilizations, the offense, as a violation of a legal rule, is not yet distinct from the violations of the rules belonging to other regulatory systems (religious, moral etc.), a mixture which is still present in the rights of religious matrix (yes Think about Sharia Islamic).

Another distinction that emerges only later is that between civil and criminal offenses; In fact, initially the crime was seen more as a private offense than as an offense to the community; In this perspective, there was no clear difference between crime and civil offense, as in the current systems, and it was the same person offended by the crime (or his family group) to assume the role of punishment or, banned revenge, that of accuser. In the same Roman civilization the distinction between civil offense ( offense ) and criminal offense ( crime ) is stated only in the republican era and is not so clear (think of the theft, offense sanctioned with the obligation to pay a multiple of the value of the stolen thing – according to the cases, double, triple or quadruple – sanction this which combines compensation and afflictive function).

While in the oldest systems the responsibility was objective, with the evolution of civilization we tend more and more to connect responsibility to the voluntarity of behavior ( guilty liability , connected to guilt or willful misconduct). Moreover, in the current systems, objective liability, if it tends to be overcome in the criminal field, still has a not negligible role in the civil field, where, however, it is not so much expression of backwardness as, rather, of the precise choice of the legislator to allocate the consequences negative of certain activities based on risk and not of fault. It should be added that in non -state systems, objective responsibility can still have a very significant role: just think of sports system.

Legal systems may have various categories of offense, in relation to the violated rule, the type of sanction that follows or the methods for its imposition. Two categories that are found in the generality of the state systems are those of civil and criminal offenses.

L’ officer , what can be contractual O non -contractual , consists in the violation of a rule placed to protect a private interest in which a compensation sanction that is, aimed at reintegrating the damage suffered by the bearer of the protected interest, imposed by the judge in the context of civil jurisdiction.

L’ criminal offense O crime Instead, it consists in the violation of a rule placed to protect the public interest, as relating to the ethical-political-social order of the State, which follows one punitive sanction , the pity , aimed at dealing with the offender, imposed by the judge in the context of criminal jurisdiction.

In certain systems, the minor severity violations of the rules placed to protect the public interest are sanctioned by an organ of the public administration, rather than by the judge: this is the case of Administrative offenses of the Italian legal system, the subject of a general discipline modeled on that of the crimes (so -called paragliding model ) contained in the law 24 November 1981, n. 689.

Obviously the concept of offense is not limited to the state judges’ systems: so we speak, for example, of sporting illegal , in relation to the sports system, or of International illicit , in relation to the international system.

The offense is a legal fact as a legal rule reconnects to it, as a consequence, the rise of a subjective legal situation, the responsibility , that is, the duty to submit to the expected sanction; We can therefore speak of illegal fact .

In the current systems, usually, in order to arise responsibility, the behavior must be voluntary, so that the offense is configured more precisely as a legal act (and, in particular, mere act); We can therefore speak of illegal act . However, there is also no lack of cases of objective liability , in which, that is, the consequences occur regardless of the voluntarity of the behavior; In these cases, the offense is not configured as a legal act but as a mere fact.

It should be borne in mind that the terms in certain systems illegal fact (so in Italy) and illegal act (So ​​in Germany and Switzerland) they are also used with a more restricted meaning, to indicate a particular species of offense, the non -contractual civil one.

• Ferrini, Illegal (in general) , in Nov. Dig. It. , We, 1938