Illegality and Its Grounds for Exclusion: Limits, Scope, and Interpretive Issues

Abstract

To synthesize and analyze the main research, doctrinal contributions, regulations, and theoretical approaches related to unlawfulness and its grounds for exclusion in contemporary criminal law. This study is based on a review of the doctrinal literature and a structured analysis of recent constitutional and criminal case law. The study highlights the evolution of the concept of unlawfulness from a formalist perspective toward a substantive and rights-based understanding, aimed at the substantial protection of legal interests against the punitive power of the State. The classical, finalist, and functionalist approaches are systematically compared; it is emphasized that current legal doctrine and case law move beyond rigid conceptions by applying the pro-persona principle and contextual criteria in the assessment of grounds for justification (e.g., self-defense versus the fear of a perfect response). Likewise, the distortions generated by punitive populism in restricting these grounds for exclusion are identified. Illegality constitutes a dynamic and constantly evolving category influenced by the constitutionalization of criminal law. Grounds for exclusion should not be interpreted as mere secondary legal exceptions, but rather as essential normative instruments that legitimize rationality and limit the state’s right to punish.