Abstract:Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcement's armoury in the fight against organised crime in the UK. It allows for criminal assets to be forfeited to the State even in the absence of criminal conviction, the stated objective being to undermine the profit incentive of criminal activity. Until now, NCB asset forfeiture has principally been critiqued from a criminological point of view, specifically concerning the Packer models and the civil / criminal dichotomy -aside from this, however, it remains rather underdeveloped theoretically. This paper addresses this lack of legal theoretical engagement with NCB asset forfeiture by providing an initial contribution from systems-theoretical perspective. This contribution makes use of systems theory's unique insights to critique the perceived 'failure of law' that gave rise to the NCB approach, and challenges the legitimacy of that approach in terms of procedural rights.

Legal outcomes often depend on the adjudication of what may appear to be straightforward distinctions. In this article, we consider two such distinctions that appear in medical and family law deliberations: the distinction between religion and culture and between therapeutic and non-therapeutic. These distinctions can impact what constitutes 'reasonable parenting' or a child's 'best interests' and thus the limitations that may be placed on parental actions. Such distinctions are often imagined to be asocial facts, there for the judge to discover. We challenge this view, however, by examining the controversial case of B and G [2015]. In this case, Sir James Munby stated that the cutting of both male and female children's genitals for non-therapeutic reasons constituted 'significant harm' for the purposes of the Children Act 1989. He went on to conclude, however, that while it can never be reasonable parenting to inflict any form of non-therapeutic genital cutting on a female child, such cutting on male children was currently tolerated. We argue that the distinctions between religion/culture and therapeutic/non-therapeutic upon which Munby LJ relied in making this judgement cannot in fact ground categorically differential legal treatment of female and male children. We analyse these distinctions from a systems theoretical perspective-specifically with reference to local paradoxes-to call into question the current legal position. Our analysis suggests that conventional distinctions drawn between religion/culture and the therapeutic/non-therapeutic in other legal contexts require much greater scrutiny than they are usually afforded.

In recent years an increasing quantity of UK legislation has introduced blended or 'hybridised' procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. Keywords Systems theory Á Autopoiesis Á Expediency Á Legitimacy Á Rule of law Á Due process Á Civil and criminal procedure Á Procedural hybrids Á Proceeds of crime Á Civil recovery And that is exactly why the legitimacy of law is questioned time and again-acutely or hopelessly, out of frustration or anger, full of value-perspectives that are beside the point for law. Niklas Luhmann (2004: 261) No good society can be unprincipled; and no viable society can be principle-ridden… Our democratic system of government exists in this Lincolnian tension between principle and expediency.

Knife Crime Prevention Orders (KCPOs) were introduced by the Offensive Weapons Act 2019 with the stated aim of providing additional tools for police to use in combatting increasing rates of knife crime in England and Wales. This article situates KCPOs within a continuous policy trend of procedural hybridization, and highlights the worrying manner in which such criminalization, underpinned by a preventive logic and facilitated by this hybrid procedure, enables new forms of ‘othering’. Drawing a threefold distinction within the concept of the regulatory subject—the responsible, the rational/virtuous and the difficult/other—it argues that preventive hybrids generate a self-fulfilling category of ‘difficult’ subjects, while simultaneously denying them the procedural protections normally afforded to the responsible subject of classical criminal law.