Bénédict Winiger
Author’s affiliation: University of Geneva

Objective and subjective illegality: Swiss specificity or legal paradox

Jurisprudence 6/2022 Section: Articles Page: 28-35

Keywords: illegality, subjective illegality, objective illegality, Roman law, historical roots, Swiss law, Swiss Code of Obligations, German law, Austrian law, necessary defence

Abstract: This paper deals with a paradox from our point of view. The Czech civil doctrine considers illegality as an objective category. In contrast, Swiss jurisprudence and doctrine have distinguished between objective and subjective illegality since the late 19th century. The basis for subjective illegality is already to be found in Roman law, which directly influenced Swiss legislation, in particular the 1911 Code of Obligations (Obligationenrecht). The author examines the development of the concept of subjective illegality in Swiss law and makes comparisons with German and Austrian law. He concludes that the distinction between subjective and objective illegality is also relevant with regard to the necessary defence and its justification in criminal law. In contrast to Swiss law, he suggests that subjective illegality is also found in most European legal systems, but is not properly elaborated by doctrine.

Available in ASPI logo ASPI Download