What is the difference between formal and substantive unlawfulness?

The essence of unlawfulness refers to those actions or omissions that contravene the provisions of the legal system. In other words, it refers to conduct that is contrary to the law, that violates legal rules and principles and is therefore considered unlawful.

Law is a set of rules that regulate social coexistence, establishing rules that must be complied with by all members of a community. The purpose of these rules is to guarantee the common good and the protection of the rights and interests of individuals. Therefore, any action that is contrary to the provisions of the legal rules is considered unlawful.

Unlawful actions can be committed by both natural and legal persons, and are classified into two categories: crimes and misdemeanours. Crimes are serious conducts that infringe upon protected legal assets, such as life, physical integrity, liberty, property, among others. Misdemeanours, on the other hand, are less serious conducts that do not infringe fundamental legal rights, but are still considered unlawful.

The essence of what is unlawful is based on the existence of a normative system that regulates human conduct, and which establishes the consequences that derive from non-compliance. These consequences may be of a civil, criminal or administrative nature, depending on the scope of application of the norm that has been infringed.

It should be noted that unlawfulness does not always imply that conduct is morally reprehensible. In other words, an action may be considered unlawful without this meaning that it is morally wrong. In fact, there are situations in which conduct that is morally acceptable may be unlawful if it contravenes the law.

What is formal unlawfulness?

Formal unlawfulness refers to the contravention of a legal norm without considering the content or purpose of the norm. In other words, it is an infringement of the legal norm in itself, regardless of whether the conduct is morally reprehensible or not.

In other words, formal unlawfulness occurs when a person engages in conduct that is expressly prohibited by law, regardless of the fact that his or her action has not caused damage or injury to a legal good protected by the legal system.

An example of formal unlawfulness could be the non-compliance with a traffic regulation that establishes a maximum speed limit on a road. If a driver exceeds this speed limit, he is engaging in formal unlawful conduct, as he is contravening an established legal rule, without necessarily causing damage or injury to a protected legal interest.

It should be noted that formal unlawfulness is not the same as typicality, which refers to the fact that the conduct carried out complies with what the law establishes as a crime or misdemeanour. Typicality is another of the necessary conditions for legal liability to exist, but it does not necessarily imply the existence of formal unlawfulness.

What is material unlawfulness?

Material unlawfulness refers to the contravention of a legal norm that protects a legal good, i.e. a socially relevant interest that the legal system considers worthy of protection. This is distinguished from formal unlawfulness, which refers to the contravention of a legal rule without considering the content or purpose of the rule.

It occurs when a person engages in conduct that causes damage or injury to a legal asset protected by the legal system, regardless of the fact that his or her action has not been expressly prohibited by law.

In addition, material unlawfulness takes into account the purpose of the rule, i.e. the social interest that it is intended to protect. Therefore, even if a conduct is not expressly prohibited by law, if it causes damage or injury to a legal good protected by the legal system, it is considered unlawful.

What are the differences between formal and substantive unlawfulness?

Formal unlawfulness refers to the contradiction of a conduct with a legal norm. In other words, it occurs when a conduct goes against what the law establishes, regardless of the purpose of the rule in question or the legal good it protects. For example, driving a vehicle without possessing the corresponding licence is a conduct that is considered formally unlawful, since it goes against what is established by the rule, regardless of whether or not any damage has been caused.

In contrast, material unlawfulness refers to the contradiction of a conduct with a protected legal good. In this case, conduct is considered to be unlawful if it violates a legal right protected by the legal system, regardless of whether or not there is a rule specifically prohibiting such conduct. For example, if a person physically assaults another person, he will be considered to have committed a materially unlawful conduct, as he has violated the legal good of the victim's physical integrity, even if there is no rule explicitly prohibiting such conduct.

Another important difference between formal and material unlawfulness is that formal unlawfulness takes into account only the form of the rule, i.e. the contradiction of a conduct with what the law establishes. On the other hand, material unlawfulness takes into account the purpose of the rule and the legal good that it protects. In this way, the aim is to protect the relevant social interests that the legal system has deemed worthy of protection, regardless of whether or not there are rules prohibiting the conduct in question.

Furthermore, another relevant difference is that in formal unlawfulness it is sufficient for there to be a contradiction between the conduct and the norm for the requirement of unlawfulness to be met. In material unlawfulness, on the other hand, it is necessary that the conduct has affected or violated a legal right protected by the legal system.