If legality and legitimacy are often confused terms, the same applies to illegality and illegality. It may seem that the two concepts refer to the same thing, but in reality this is not the case. In the field of law, there are concepts that resemble those of non-experts in the field and can even be confused, but they are not really the same. This happens, for example, with legal and legitimate conditions. Legal actions are those that are not regulated by law for better or worse. In this way, a legal act does not enjoy legal protection, while there is no provision for an explicit condemnation. The main difference between legal and legitimate is that legality refers to something that is under a concrete reality, while legitimate is something that goes beyond the legal and is directly related within the person. But this definition may be too abstract, so it`s better to look at it from a more practical point of view. Norberto BOBBIO, 1950: Interpretazioni anglosassoni della filosofia del diritto.
Rivista internazionale di filosofia del diritto. 35 (1950) 1. 90-101. We have already seen in the legitimate definition or legal sense that the meanings around this term are not limited to mere legality. Underneath the concept of legitimacy lies the idea that something is not only legal, but that there is justice and reason in the execution of a particular action. 7With regard to the first, Atienza specifically links the meaning of this totalization to the transcendental or intercategorical character of ius philosophy. Thus, he points out that „the essential function of legal philosophers should be to act as a `mediator` between legal knowledge and practices, on the one hand, and the rest of social practices and knowledge, including philosophy, on the other. […] Its place is precisely in the frictions and cavities that occur during the operation of the same. Therefore, the philosophy of law can claim to be totalizing knowledge, insofar as its starting point and arrival are those other knowledge and practices” (Atienza 2015:5). However, it must be borne in mind that, no matter how exhaustive a legal system may be, it can never regulate all the issues that may arise in reality.
Therefore, there may be acts or behaviors that are not considered legal or illegal. We are then faced with a case of anarchy. An unlawful act contrary to criminal law is punishable by imprisonment, a fine or other incidental penalties. An act that violates administrative law is usually punishable by an economic fine, while an act that violates labour or civil law is generally punishable by its nullity. The clearest example of illegal behaviour in our legal system is prostitution. Today, this profession has no kind of regulation, so the people who exercise it cannot be sanctioned (the behavior is not illegal), but they also do not enjoy the protection that other workers have (the behavior is not legal). Everything that is legal tries to guarantee a healthy coexistence, based on the ethical and moral concepts that prevail in each society. In this way, conduct that violates the provisions of the law is classified as illegal and is punishable at the administrative or even criminal level. Based on everything we have seen so far about the legitimate definition, we can conclude that there is no better synonym for this concept than just, although we can also use other terms such as legal, lawful, reasonable, permissible, permitted or true. Manuel ATIENZA, 2015: The philosophy of law as a „regional” philosophy. URL: lamiradadepeitho.blogspot.com.es and iusfilosofiamundolatino.ua.es (May 6, 2017).
The illegal is that which violates legality, whether it is the law or the principle of legality itself. But beware, not all illegal acts will be punished criminally. There are acts that violate criminal law, but there can also be acts that violate labour law, civil law, administrative law, etc. First, it defines and monitors the legal concepts and methods that articulate the entire legal system; Second, it serves as a guide for the correct interpretation of the entire body of law and for its critical revision. The importance of legitimacy and legality always go hand in hand. These are two qualities that do not always occur in relation to the same problem. Not everything that is legal is always legitimate and not everything that is legitimate is always legal. For example, discrimination against certain groups is legal in some countries, but we can conclude that, according to our ethics and morals, it is not legitimate for us. On the contrary, it might seem legitimate to us to convict a criminal who caused the premeditated death of a person for forced labour (it seems fair to us to pay for what he did), but it would not be legal. The main difference between legality and legitimacy is that the concept of legitimacy or legitimacy also refers to an ethical and moral consideration. That is, it is a legal concept, but also a moral concept.
However, it may happen that a certain act or behavior is outside the confines of the legal system when we talk about illegality. It is legal what is determined by or in accordance with the law. For example, it is legal to exercise the right to strike under the conditions provided for by law. 11The lawyers` preference for legal philosophy is undoubtedly supported by an extremely powerful argument: the empirical reference to the legal category, to legal-positive concepts, to legal practice itself. The ius philosophy must be a „philosophy of positive law” based on the problems of today`s constitutional states and their complex legal-administrative mechanization or progressive constitutionalization, and not a speculative or unproductive (metaphysical or dogmatic) reflection.6 The crucial question, however, is whether this proximity to categorical legal experience cannot in itself constitute an obstacle – and not necessarily an advantage. when it comes to building a truly philosophical-critical discourse around the law. In other words, if the self-conception of the philosophy of law as the „philosophy of jurists” cannot also lead to making it dogmatically an anchor iurisprudentiae, in a reflection indistinguishable from the specialization of the legal guild, to a simple professional propaedeutic, a patchwork or a philosophical tinkering linked to the jurisprudence itself7, in short, to another part of the encyclopedia or legal ideology, which is understood in a broad (and not necessarily negative) sense. The situation could be compared, mutatis mutandis, to one that would simply admit that the philosophy of religion makes sense only to the extent that it is made and served by practitioners or theologians of a particular denomination. This risk of „dogmatism” was facilitated not only by the specialization and institutional positioning of the discipline mentioned above, but also and to a large extent by the methodology of legal positivism, in which prioritization of the doctrinal (or „internal”) point of view meant the isolation of the concept of law and its decoupling from other categories. At once scientific, social and political-moral.
The thesis of the separation between law and morality, the „purity” of legal theory, the neutral descriptive or evaluative study of „law that is” and not of what „should be”, or the consideration of an „external” perspective as scandalous to the jurist are manifestations of this methodology that lead to the conclusion that the philosophy of law must be alien to moral philosophy. political philosophy, social philosophy, etc. In other words, jurisprudential discourse is intended to be relevant only to lawyers and not an object of interest to „philosophers” or about which they have something interesting to say. 43 He is probably the one who understood this best when he asserts that constitutional judges take philosophical decisions not only occasionally, in a particularly difficult case (i.e. one that calls into question the appreciative foundations of established law), but also obviously, since the terms they use in their decisions („responsibility, meaning, intention, equality, freedom and democracy, for example”) are „difficult concepts” – i.e. ideas – that require reflective and argumentative practice on some of the more complex issues of political morality (i.e. the articulation of notions over fundamental practical values) (Dworkin 2010: 22, 29, 33). Legal is anything that is permitted or approved by law, that is, that leads to lawful behavior that is not sanctioned.