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Expediency, legitimacy, and the rule of law: a systems perspective on civil/criminal procedural hybrids

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posted on 2023-06-21, 06:01 authored by Jennifer Hendry, Colin King
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.

History

Publication status

  • Published

File Version

  • Published version

Journal

Criminal Law and Philosophy

ISSN

1871-9791

Publisher

Springer Verlag

Issue

4

Volume

11

Page range

733-757

Department affiliated with

  • Law Publications

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2016-09-14

First Open Access (FOA) Date

2016-09-14

First Compliant Deposit (FCD) Date

2016-09-14

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