ORIGINAL PAPER
Expediency, Legitimacy, and the Rule of Law: A Systems
Perspective on Civil/Criminal Procedural Hybrids
Jennifer Hendry
1
•
Colin King
2
Published online: 2 September 2016
The Author(s) 2016. This article is published with open access at Springerlink.com
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 limita-
tions upon systemic operations, this paper employs a systems-theoretical approach to
critique this balancing act between expediency and principle, and queries the circum-
stances under which legislation contravening the rule of law can be said to lack legitimacy.
Keywords Systems theory Autopoiesis Expediency Legitimacy Rule of law Due
process Civil and criminal procedure Procedural hybrids Proceeds of crime 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.
Alexander M. Bickel (1962: 64, 68)
& Colin King
colin.king@sussex.ac.uk
Jennifer Hendry
j.hendry@leeds.ac.uk
1
School of Law, University of Leeds, Leeds, England, UK
2
Sussex Law School, University of Sussex, Brighton, England, UK
123
Crim Law and Philos (2017) 11:733–757
DOI 10.1007/s11572-016-9405-6
1 Introduction
There has been a marked increase in recent years in the quantity of legislation passed by
the UK Parliament that provides for hybridised procedural approaches to specific legal
issues. By ‘hybridised’ procedures, we mean those blended processes in either civil or
criminal law that rely upon mechanisms normally associated with the other type, or those
that omit procedural dimensions normally required by their own sort, and thus blur the
lines between the civil and the criminal.
1
Many examples can be cited of the use of civil
processes to target criminal behaviour, for example, in relation to anti-social behaviour
(e.g., Anti-Social Behaviour Orders (ASBOs) under the Crime and Disorder Act 1998, s. 1,
recently replaced by the Injunction under Part 1 of the Anti-social Behaviour, Crime and
Policing Act 2014
2
), domestic violence (e.g., Domestic Violence Protection Notices
(DVPNs) and Domestic Violence Protection Orders (DVPOs) under the Crime and
Security Act 2010, ss. 24–29), forced marriage (e.g., Forced Marriage Protection Orders, as
inserted in the Family Law Act 1996 by the Forced Marriage (Civil Protection) Act 2007),
sexual offences (e.g., Sexual Harm Prevention Orders and Sexual Risk Orders introduced
under the Anti-social Behaviour, Crime and Policing Act 2014, replacing other civil orders
under the Sexual Offences Act 2003), serious/organised crime (e.g., Serious Crime
Prevention Orders under Part 1 of the Serious Crime Act 2007 and Civil Recovery Orders
under Part 5 of the Proceeds of Crime Act (POCA) 2002), and terrorism (e.g., Control
Orders introduced under the Prevention of Terrorism Act 2005, then abolished in 2012 and
replaced by Terrorism Prevention and Investigation Measures (TPIMS)).
The reasons for this increasing procedural hybridisation are themselves context-specific
and thus variable, but one common aspect across each of the illustrations listed above is a
degree of normatively motivated political expediency. Control orders were initially con-
ceived of as hybrid administrative measures with a starring role in the ‘War on Terror,’ for
example, while the hybrid nature of DVPOs results from the policy goal of combating
more effectively domestic violence against women and girls, their conception as expressly
protective, not punitive. This value-based approach can also be seen in terms of civil
recovery, the policy position behind which is that crime should not pay, and that assets
arising from criminal activity ought to be forfeited. The inherent instrumentality behind the
introduction of each of these hybrid measures is overt, although not in itself problematic.
What is concerning, however, is the manner in which such legislative privileging of
expediency over considerations of human rights and due process is becoming increasingly
normalised.
3
The aim of this paper is to draw attention to the rising frequency of such procedural
hybridisation (see Ashworth and Zedner 2008: 29–31), and to demonstrate that hybrid
orders illegitimately circumvent criminal law procedural protections.
4
We employ a sys-
tems-theoretical approach to critique what, we argue, is a prioritisation of expediency over
1
For the purpose of this analysis, a ‘hybrid’ process is defined as one that contains characteristics of two
previous discrete legal categories: see, for example, Bronitt and Donkin (2012).
2
There are provisions for other civil measures post-conviction—for example, ‘CRASBOs’ (Criminal Anti-
Social Behaviour Orders) were replaced by Criminal Behaviour Orders under the Anti-social Behaviour,
Crime and Policing Act 2014. Another example of post-conviction civil powers is the power to grant
Restraining Orders under the Protection from Harassment Act 1997 s. 5.
3
As Zedner (2007: 203) notes, ‘Security of the individual from the state rests in adherence to the rule of law
and yet the security of living under the rule of law has no meaning if laws themselves do not abide by its
basic precepts’.
4
Our focus in this paper is on the use of civil processes to tackle behaviour that is essentially ‘criminal’.
734 Crim Law and Philos (2017) 11:733–757
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principle, and engage with the following fundamental question: can a legislative provision,
properly passed according to the requirements and procedures of the enacting Parliament
but which contravenes those higher legal principles comprising the rule of law, lack
legitimacy? These issues are scrutinised in terms of the rule of law, which we conceptu-
alise not only as a composite of legal standards, normative aspirations, and quality
benchmarks but also as a structural coupling between the political and legal systems; we
rely upon this insight to analyse the introduction of these hybrid orders and procedures.
Our conclusion will be that, in spite of their undisputed legal validity, their effective
circumvention of rule of law standards places them squarely in a position of questionable
legitimacy. The first section of this paper will articulate what we understand by ‘legiti-
macy’ in this context, with specific discussion of this composite group of ‘rule of law’
standards in systems-theoretical terms, while the second will provide a comprehensive
analysis of civil/criminal procedural hybridisation, and will present our case study of civil
recovery. The third section will reintroduce the core question and argue the thesis that, in
spite of their undisputed legal validity, such hybridised measures lack legitimacy because
they exceed both the legal system’s self-imposed limitations and those resulting from its
structural couplings
5
with the political system. Our conclusion presents the increasing
reliance on procedurally hybrid approaches as an over-emphasis upon expediency at the
expense of principle.
It should be noted here that this paper employs a systems-theoretical perspective in
leading its principal argument. This perspective provides a fresh insight into both ongoing
debates on procedural hybrids (see, e.g., Bronitt and Donkin 2012; Zedner 2007) and legal-
theoretical discussions of the rule of law. The advantages of a systems perspective on
procedural hybridisation lie in how the theory’s emphasis on functional differentiation and
the boundaries between systemic operations highlights issues often left unseen by con-
ventional analyses. Systems theory draws clear dividing lines between the concepts at the
heart of this analysis—validity and legitimacy, the legal and the political—and this clarity
provides an invaluable foundation for critique. This study also contributes usefully to the
further development of systems theory itself, as the issues raised by considering procedural
hybrids test both its positivistic
6
and descriptive nature, not least by presenting it with the
obstacle of normativity. Indeed, it is with normativity that we will begin, for it is in terms
of two specific normative dimensions that this analysis establishes its parameters relative to
the competing concepts of expediency and principle. These normative dimensions can be
articulated in terms of our selected case study, namely civil recovery under POCA 2002
Part 5. Civil recovery under POCA perfectly illustrates the contentious nature of civil/
criminal hybrid procedures in that civil recovery allows the State to go after ‘criminal’
proceeds albeit by circumventing enhanced procedural protections of the criminal process.
7
5
In what is a highly selective contact between systems, structural coupling is the ‘form in which the system
presupposes specific states or changes in its environment and relies upon them’ (Luhmann 1992: 1432). The
terminology, structure, and detail of autopoietic systems theory are discussed below.
6
As Ewald (1988: 39) states, autopoiesis is ‘indisputably the daughter of Kelsen’s Pure Theory.’ Siltala
(2000: 205) echoes this by observing that ‘the theory of legal autopoiesis… defines the concept of law in
essentially circular and self-referential terms under the normativistic and methodological premises of
Kelsen’s Pure Theory of Law’. See also Kelsen (1967).
7
We deliberately select civil recovery as our case study, not least because there is already an extensive
literature on other hybrid procedures such as ASBOs, control orders, sexual prevention orders, etc.: see
Ashworth and Zedner (2014, 2008); Walker (2013); Hoffman and MacDonald (2010); Shute (2004).
Another reason for this choice is that the literature tends to focus on those hybrid orders that carry a threat of
imprisonment for breach of the civil order. There is no threat of imprisonment with civil recovery under
Crim Law and Philos (2017) 11:733–757 735
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The first normative dimension to consider, as mentioned above, is the value-based
motivation behind the adoption of procedural hybrids according to policies that can be
cited as undoubtedly politically expedient in character. This was clearly reflected in the
build up to POCA by then—Prime Minister Tony Blair, who in September 1999 stated that
‘we want to ensure that crime doesn’t pay. Seizing criminal assets deprives criminals and
criminal organisations of their financial lifeblood’ (Performance and Innovation Unit 2000:
13). Civil recovery is presented as a key strategy in the fight against serious crime. Initiated
as a result of perceived inadequacies of existing criminal processes in controlling high-
level and high-value organised crime, civil recovery enables the seizure of ‘criminal’
proceeds in the absence of a criminal conviction and on a reduced standard of proof.
This normative stance—that crime should not pay—is unlikely to prove particularly
controversial, or to give rise to much political contestation. If someone has committed a
criminal offence then that person should undoubtedly be denied the benefit of that offence.
It is when focus shifts to the mechanics of implementation, however, that concerns arise
(see Gledhill 2011: 81). This very issue is the second normative dimension of this analysis,
namely the tension created by the juxtaposition of the realisation of the stated policy goals
(see Performance and Innovation Unit 2000) with the requirements of due process, or,
rather, the apparent conflict between the goals of controlling high-level, high-value
criminal activity and ensuring the adequate observance of the alleged perpetrator’s civil
and political rights (Ivory 2014). This paper submits that, in their effective bypassing of
enhanced procedural protections, this hybrid measure is contrary to the rule of law and thus
lacking in necessary legitimacy (on the point that the legislative remedy of civil recovery
has gone too far in its attempt to remedy an existing inadequacy in the law, see Hendry and
King 2015). Although this critique may appear prima facie to be a legal-theoretical one, it
is important to note that this opens civil recovery up to challenge on the grounds that it
violates due process rights that are inherent in the criminal process.
8
2 Legitimacy and the Rule of Law
Before we proceed with this argument, a number of concepts require further explicit
attention, not least that of legitimacy. Niklas Luhmann is not alone in despairing of the
concept of legitimacy (2004: 261),
9
the myriad uses and conceptions of which mean it can
rightfully be considered an essentially contested concept (Gallie 1995), even if within
certain fields of study there does exist a tentative consensus.
10
A concept perhaps more
familiar to politics than law, political legitimacy can be understood in a contractarian vein
as the popular acceptance of authority, typically an established system of democratic
Footnote 7 continued
POCA, although it can be viewed as a ‘parallel system […] of questionable justice’ to circumvent criminal
procedural protections (see Zedner 2009: 81) or a ‘shadow criminal justice system’ (Ferzan 2014: 517,
referring to the dissenting judgment of Stevens J in Allen v Illinois, 1986).
8
For consideration of political willingness to circumvent the criminal law, see MacDonald (2007:
616–618).
9
See opening quote above.
10
For example, international lawyers concern themselves with issues of legal authority, while public
lawyers focus upon the underlying democratic process, and criminologists often employ both normative and
sociological understandings. On legitimacy and why people obey the law, see, e.g., Tyler (2006a), Jackson
et al. (2012); on the ‘character’ of legitimacy, see, e.g., Bottoms and Tankebe (2012); on legitimacy in the
context of police cooperation, see, e.g., Hufnagel (in press).
736 Crim Law and Philos (2017) 11:733–757
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government according to the twin Lockean principles of consent of the governed and
majority rule. The contestation arises when we look beyond this basic conception and
attempt further specification or refinement, such as considering whether political legiti-
macy is premised upon descriptive or normative grounds, or whether it has procedural or
substantive requirements. Such arguments cannot be premised upon an objective foun-
dation but rather cite contingent political values. Indeed, if we shift our viewpoint to adopt
a more expressly legal perspective, then it becomes apparent that, while legitimacy is an
important concept for law, the task of furnishing it with content is one that rests not with
law, but with political and moral philosophy. The reason for this, as Weinberger (1999:
347, emphasis added) explains, is that:
Criteria of legitimacy are value-criteria which depend on philosophical and political
opinions. The criteria may concern the content of the law—this is the position of
natural law theorists—or they may postulate some forms of generation and/or some
kind of acceptance of the law as criteria of legitimacy. […] Legitimacy is not an
objective feature of valid law but a valuation based upon presupposed political
convictions. […] Legality of legal processes in the broad sense of the dynamic theory
of law is interpreted as a sign of legitimacy, but in fact the judgment about legitimacy
is distinct from the proof of legality.
This distinction is important for the purposes of this analysis, as it draws attention to the
way in which legitimacy is dependent on criteria that are markedly and essentially extra-
legal. Indeed, while legal theoretical discussions of the content, source(s), pedigree, or
reception of the law may inform (the selection of) such criteria, issues of legitimacy are
wholly separate from those of legal validity. In other words, while it is certainly possible to
establish legitimacy as a condition for or objective corollary of legality, this duty belongs
not to law but rather to politics. And this takes us to the crux of the matter, which is that
legitimacy can only be introduced to law through politics, a state of affairs that even in
democratic situations gives rise to undeniable contingency. The next section submits that
the vehicle of this introduction is the rule of law.
2.1 The Rule of Law
The rule of law is not a straightforward concept either to employ or to rely upon. As
Tamanaha (2004: 4) observes, the rule of law ‘stands in the peculiar state of being the
preeminent legitimating political ideal in the world today, without agreement upon pre-
cisely what it means’. The textbook definition at least provides a starting point.
[T]he rule of law concerns the relationship of the government to the law [… It] is
both a legal rule and a political idea or principle of governance comprising values
that should be reflected in the legal system and should be respected by those con-
cerned in the making, development, interpretation and enforcement of the law.
(Turpin and Tomkins 2007: 76)
Immediately apparent within this definition is the concept’s duality. The rule of law is
simultaneously a legal rule and a value-laden political principle that is, importantly,
determinative of all aspects of law’s operation. More than this, however, is the manner by
which the rule of law embodies the law’s legitimacy, even although this legitimacy is
wholly contingent on the context of the political circumstances and indeed values at hand.
Legal legitimacy is thus a black-box concept—an empty vessel to be filled with animating
(political) values. The benefit of this is evident: by keeping any and all consideration of
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