On the one hand, it seems strangely based on the principles of Romney, a candidate who has always been guided by abortion opportunism. These all-transparent planes are filtered through special lines for practical reasons. The rule of law is not an easy concept, neither to apply nor to avail oneself of it. As Tamanaha (2004:4) notes, the rule of law is “in the peculiar state of being the preeminent legitimizing political ideal in today`s world without agreeing on what exactly it means.” The definition of the manual provides at least a starting point. Mr. Jackson assumed that Parliament had the right to tax America, but he had serious doubts about the usefulness of the current law. The second and third criteria of angels open other avenues of criticism. Kerr LCJ is correct when he says, with respect to the second criterion, that civil recovery proceedings “do not involve guilt for a particular crime” (Walsh 2005: para. 29).
However, they allow the state to lay general criminal charges, footnote 40 a lack of specificity that would simply not suffice in criminal proceedings. With regard to the third and final part, while civil recovery is presented as compensation for illegally acquired profits, it is essentially a penalty for criminal misconduct. Focusing solely on the restitution of illegal profits without recognizing all the effects of the civil recovery order is trivial – a person subject to such an order will suffer not only from the deprivation of his property, but also from the etiquette and stigma of being a “criminal”, if not in the law, at least in the eyes of his fellow citizens. Footnote 41 To suggest that, in such circumstances, the individual is not punished, that there is no criminal responsibility, and that the undisputed actual recovery procedure focuses exclusively on property is totally dishonest with respect to civil recovery. Footnote 42 It seemed only a courageous and decent impulse far from being expressed where political opportunism has too often silenced it. [T]he rule of law concerns the government`s relationship with the law [. It is both a legal norm and a political idea or principle of governance that encompasses values that are reflected in the legal system and that should be respected by stakeholders in the drafting, development, interpretation and application of the law. (Turpin and Tomkins 2007:76) The reasons for this increasing procedural hybridization are themselves context-specific and therefore variable, but a common aspect in each of the illustrations listed above is a certain degree of political expediency motivated by normative considerations. Control orders were originally conceived as hybrid administrative measures playing a leading role in the “war on terror”, while the hybrid nature of DPVO results from the policy objective of more effectively combating domestic violence against women and girls, their conception as explicitly protective, and not punitive.
This value-based approach is also evident with respect to civil reparations, whose political position is that crime should not be profitable and that assets resulting from criminal activities should expire. The instrumentality inherent in the introduction of each of these hybrid measures is obvious, but not problematic in itself. What is worrisome, however, is how such a legislative privilege of opportunism over human rights and due process considerations is increasingly becoming the norm. Footnote 3 Most interesting, however, is Luhmann`s rejection of the classical idea that legitimacy is the objective consequence of legality. Not only does he reject this position, but he also argues that legitimacy is rather the contingency formula for politics. As Thornhill (2006:83) explains, “the legitimate political system is a political system that has woven a convincing network of legitimacy from its own completely contingent operations” and therefore does not rely on the legal for any constitutive contribution. The difference between the legal and political systems is striking here: while the legal system is paralyzed by its own inherent flaw, the political system actually behaves as if it were legitimate by creating ex nihilo an internal communication to the system and organizing it in a way that is both predictable and coherent. In this way, it can then rely on such a self-reference to the extent that these systemic operations become significant from the outside (Thornhill 2006: 82-83, 95), for example: the requirement of a certain margin for electoral victory or the need for a referendum to support the constitutional amendment. The conditions under which political systems can claim legitimacy are very different and, moreover, both contextual and contingent. It is also worth noting here the difference between Luhmann`s concept of political legitimacy and the aforementioned Lockeian form: although government is legitimate for Luhmann if its policies and legislation are accepted as such by its citizens, it is neither for the behavior of this government nor for the substance of its policies that determines its legitimacy in this regard.
an objective or substantive “substantive” requirement. To the extent that political legitimacy depends on the fulfilment of conditions or the achievement of thresholds, they exist only to the extent that they are set by the political system as conditions for its own actions. When states have had the opportunity, they have often played with definitions of humanity to achieve political opportunism, to strengthen their power, or to give an advantage to a particular group. Legitimacy criteria are criteria of value that 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 certain forms of generation and/or some kind of acceptance of the law as criteria of legitimacy. […] Legitimacy is not an objective feature of the applicable law, but an assessment based on presumed political beliefs. […] The legality of legal processes in the broad sense of dynamic legal theory is interpreted as a sign of legitimacy, but in fact the judgment of legitimacy differs from the proof of legality. But what about legal legitimacy? Although we have presented it as a problematic term for a theoretical construction of the system, it is explained here by the existence and functioning of the structural coupling of the rule of law, a structural coupling that links the legal system to the norms set by the political system. Through this coordinated structural link, political-systemic restrictions – namely procedural rights – are extended to the legal system, embodying criteria of value in the “black box” of legal legitimacy. Although these due process rights are “a central element of the arsenal of values in whose name the political system legitimizes itself” (Philippopoulos-Mihalopoulos 2010:154), these rights act as a shield against the structural violence created by unrestricted functional (de)differentiation, and this applies to all functional systems, not just political ones. Through a combination of rights such as systemic restrictions and the rule of law as a structural link between the political and legal systems, we can understand legal legitimacy. Legal legitimacy is not sufficient to be valid only, but presupposes that the functioning of the legal order is consistent both with the minimum restrictions imposed on it by the procedural rights which it has itself recognised as legally valid and in the light of the political values which serve to guarantee the content of the rule of law and the structural link between the political and legal systems.
The last criterion was also treated with disdain, with civil recovery being described as a preventive measure: “After all, the person who has to hand over the property brings in nothing but the restitution of what he has acquired illegally. (ibid.: paragraph 38) Kerr LCJ also rejected the argument that the Engel criteria should cumulatively lead to civil compensation being considered punishable: in such programmes, the rules of procedure are set in the legal system. Its task in this regard is the recursive application of standards to the application of standards (Luhmann 2004:158), all of which are undertaken to achieve the primary function of the legal system, i.e. the stabilization of normative expectations over time. This is what emerges from our case study: When existing enforcement strategies were deemed inappropriate to combat the complexities of organized crime, the introduction of civil redress through POCA in 2002 was a direct response to disappointment in the normative expectation that crime should not bear fruit. This is not to say that the autopoietic legal system at all times deals with questions of the moral content of the law or the political motivation for changes in the law – for example, there is no consideration of the ideology of crime control underlying the “follow money” approaches, or the open political and normative instrumentality of civil restoration, which in fact could not exist. No, if the civil remedy has led to a restructuring of systemic legal programming and thus to a reorientation of its Code of Criminal Law and Civil Procedure, the system itself is aware of this only as internal reactions to the system`s repeated disappointment with its normative expectations. In addition, civil recovery, by virtue of its inclusion in the unity of the legal system, confers validity on the intrinsic systemic value.
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