Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids

Abstract

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.

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