Unlawful vs. Illegal: Understanding the Difference and What Constitutes an Unlawful Act

The terms unlawful and illegal are often used interchangeably. In many cases, we use these terms to refer to actions that are either expressly prohibited by law or do not conform with legal precepts and rules. However, despite their similarities, the terms apply to different contexts. 

Understanding the difference between an unlawful and illegal act helps ensure you are law-abiding and better aware of your rights and how to protect them.

What Is the Difference Between Unlawful and Illegal?

Unlawful and illegal acts each have different legal implications and involve different factors, with illegal acts having more severe consequences. 

Illegal acts relate to actions specifically prohibited by law. These are mostly criminal actions, and the law prohibiting such actions usually outlines the factors to be considered when considering the illegality of the action and the procedure by which the person who does such an act may be cautioned or punished.

On the other hand, the term “unlawful” relates to actions that are not permitted or that result in noncompliance with a law despite not being expressly prohibited. The term also refers to actions that violate rules applicable to a specific context, such as commercial relationships. It mostly relates to civil contexts or non-criminal court cases.

Illegal vs. Unlawful: Are They Interchangeable?

Depending on the context, illegal and unlawful may be used interchangeably. This is possible where the action in question is considered a civil and criminal wrong. 

An example is assault. You may refer to an assault as both illegal and unlawful. Most state laws criminalize assault and prescribe penalties. However, victims are also at liberty not to press charges for assault but seek damages and compensation under tort law instead. 

Essentially, when viewed as a criminal action, an assault is illegal, as it is expressly prohibited by law. When viewed as a non-criminal action, an assault is unlawful, as it goes against legal rules, and the victim of the assault is entitled to compensation in law.

What Are the Legal Implications of Being Unlawful vs. Illegal?

The implications of an unlawful action differ from one that is considered to be illegal. An unlawful action usually results in a “legal wrong” against someone else. The victim of a legal wrong is entitled to compensation. This compensation can only be granted by a court order. Therefore, when you commit an unlawful action against someone, they can sue you.

Compensation for an unlawful action may be monetary or in the form of an injunction. An injunction is a court order restraining the doing or continuation of an action.

In most cases, an illegal action results in criminal charges. Upon conviction, the penalty for the offense depends on the law criminalizing the offense and the judge’s discretion.

What Constitutes an Unlawful Act?

An unlawful act is one that, though not expressly prohibited by law, is not permitted by law or generally frowned on by the justice system, and doing such an act may result in an award of compensation against you by a court of law or, in some cases, an administrative body.

Examples of unlawful acts include breach of contract, nuisance, defamation, assault or battery, and negligence. In some cases, unlawful actions that are more flagrant or egregious may be considered as having become illegal. Examples include criminal defamation, assault, and criminal negligence.

Performing a Wrongful or Unlawful Act

In certain cases, intent is irrelevant in committing an unlawful act. What is considered is whether, based on an objective assessment, you could have reasonably avoided the commission of the act. For example, in the case of negligence, the court will assess the following:

• Was there a duty of care on your part?
• Did you breach this duty of care?
• Did it result in damages or injury to the person you owed this duty of care?

If all three factors are present, you will most likely be deemed negligent, even if you did not intend to be, except there are other mitigation factors in your favor, such as contributory negligence. Contributory negligence comes into play if other people were involved in causing harm to the person to whom you owed the duty of care.

That being the case, certain unlawful actions require intent. They are mostly referred to as “intentional torts”, and include battery or assault, as it must be proven that the perpetrator intended to cause harm to the victim or that a reasonable person would know that the action would cause harm to the victim.

Another example is defamation. The court will generally assess the following:

• Did you make a statement?
• Did it negatively affect the person’s reputation?
• Was it untrue and did the person know it to be untrue?

If all of the above are affirmative, you will most likely be deemed to have defamed the person unless you can prove that the statement was true or that there are other mitigating factors. 

Legal consequences for unlawful acts include civil liability. The affected person can sue you and seek monetary compensation, an injunction, an order of the court directing you to do certain actions, or even all the remedies if there are justifiable facts to request them.

What Constitutes an Illegal Act?

Illegal acts are those that are expressly prohibited by law. They are usually criminal actions with statutory penalties. Examples include theft, perjury, fraud, murder, attempted murder, conspiracy to commit a crime, accessory to a crime, sexual assault, assault with a deadly weapon, and burglary. 

You will likely face jail time if you are accused of an illegal act. In the circumstances, you should engage a licensed attorney quickly. 

Examples of Illegal Actions

Under federal law, illegal actions are classified into felonies, misdemeanors, and infractions. A felony is punishable by death, life imprisonment, or a minimum jail sentence of more than one year. A felony offender may also be sentenced to a maximum fine of $250,000. 

A misdemeanor is punishable by a minimum jail sentence of more than five days and a maximum jail sentence of one year. A misdemeanor offender may also be sentenced to a maximum fine of $100,000.

An infraction is punishable by a maximum jail sentence of five days and/or a maximum fine of $5,000.

A conviction for an illegal act is entered into a person’s criminal record, and a potential employer may view this. Certain offenses also require a convicted offender’s name to be entered into a registry. An example is sex offenders. 

The terms “unlawful” and “illegal” may be viewed as two peas in a pod, but they are different in many ways. While both terms have specific contexts where they may be used interchangeably, they each mean different things and apply to different situations.

Understanding the nuances between both terms can help you to understand the gravity of each category and the actions that they apply to.