The recent media furore surrounding the UK government's hostile environment policy and the tr... more The recent media furore surrounding the UK government's hostile environment policy and the treatment of the Windrush generation drew attention to the use of criminal law for regulatory purposes within the context of immigration. The proliferation of immigration offences, and the reproduction of criminal provisions in immigration laws, signals a blurring of the lines between the civil and criminal legal realms: while immigration law purports to be administrative in character it is often effected through criminal law, which is used against citizens and non-citizens in breach of immigration rules when immigration measures alone are ineffective. These 'crimmigration' measures can be understood as examples of hybrid proceduralism. The civil/criminal procedural hybrids used in 'crimmigration' processes are borne of ideologically motivated political expediency, and disproportionately disadvantage vulnerable populations, who are frequently portrayed as deviant. They priv...
This Special Issue considers the situated and contextualized development of socio-legal, or law a... more This Special Issue considers the situated and contextualized development of socio-legal, or law and society, scholarship within two materially different legal and academic cultures, namely Germany and the United Kingdom, with a view to achieving a better understanding of why and how such differences in understanding and practice have arisen. The contributions are grouped into three themes. The first reflects upon the influence of institutional contexts and scholarly traditions in terms of the development of those approaches that come under the banner of socio-legal studies. The second features contributions that adopt a comparative perspective in terms of selected areas of law, pointing to notably different approaches taken in Germany and the UK, and considering the development of these respective situations. The third looks at the key contemporary trends, theoretical applications, and methodological approaches taken within both countries’ socio-legal academic contexts.
In recent years an increasing quantity of UK legislation has introduced blended or 'hybridised' p... more 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.
Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcement... more 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 a 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.
The aim of this paper is to develop an analytical framework for legal integration (integration th... more The aim of this paper is to develop an analytical framework for legal integration (integration through law / integration of law) in the European Union from the perspective of legal culture. We advance a relational conception of legal culture that builds on the tension between, and the reciprocal adaptation of, legal rules and social norms (process) in a given institutional order (unit). Drawing on Paul Bohannan's notion of double institutionalisation of law, we first analyse the relationship between legal rules and social norms in the state legal order. Secondly, we submit that due to the enhanced level of integration of the European polity as compared to traditional international law-type entities it is possible to cognise a European Union legal culture which is simultaneously distinct from and mutually constitutive of the legal cultures of its Member States. We conclude that from the perspective of legal culture, the challenges of European integration are not adequately described either in terms of a 'conflict of laws' or in terms of a 'clash of cultures'. Rather, legal integration in the European Union should be understood as building on parallel but interlocking processes of double institutionalisation of law at the European and the national levels.
An obvious downside of any slogan or motto is that it is necessarily a simplified version of what... more An obvious downside of any slogan or motto is that it is necessarily a simplified version of what it attempts to convey. Thus while they may provide a handy hook, the very 'catchiness' and accessibility of mottoes often serve to disguise the complexity of the concept(s) at their heart. This paper submits that the European Union watchword of unitas in diversitate, or 'united in diversity', suffers from this problem, in particular in terms of its utilisation in Europeanisation debates involving law and legal culture. The aim of this paper is to present the argument that the optimal way of conceptualising 'unity in diversity' in the European Union is as an expression of unity without uniformity and diversity without fragmentation, and this will be done in two sections. This paper will firstly analyse the concepts of 'unity' and 'diversity' and then their juxtaposition, while the second section will look to considerations of culture in order to determine whether it can be seen as either a positive or negative factor in the process of the Europeanisation of law. In doing so it will present two alternative dichotomies of the concept, namely: culture as grounds for unity or grounds for diversity, and culture as instrumentalist or contextualist.
The long-running saga of the prominent Kadi case raises a variety of issues, not least the Court ... more The long-running saga of the prominent Kadi case raises a variety of issues, not least the Court of Justice of the European Union (CJEU)'s overt acknowledgment of the European Union (EU) as a 'virtuous international actor' (de Búrca 2009) in terms of rights protection, and the monism / dualism / pluralism issue in terms of global governance. This chapter will consider these from the standpoint of autopoiesis or 'systems' theory in order to present a fresh perspective on both legal-systemic unity and considerations of 'justice' vis-à-vis human rights.
Abstract: This chapter submits that the convergence thesis central to the early 'Integration... more Abstract: This chapter submits that the convergence thesis central to the early 'Integration through Law'School no longer captures the reality of legal integration in a post-Lisbon European Union. Instead of viewing 'Integration through Law'in the EU as being the ...
Abstract In 1989, Rudolf Wiethöltner alleged that we are witnessing a 'failure of law&am... more Abstract In 1989, Rudolf Wiethöltner alleged that we are witnessing a 'failure of law'in terms of its obligation to achieve 'just law'. This paradox at the very heart of lawin essence, the impossibility of the realisation of legal justice twinned with the law's inability to cease ...
Abstract: Most of the debate about online social networking sites, such as Facebook, has thus far... more Abstract: Most of the debate about online social networking sites, such as Facebook, has thus far revolved around questions of privacy and access to personal information. Users of such services, should they choose to exercise them, have a myriad of privacy options that ...
This Special Issue considers the situated and contextualized development of socio-legal, or law a... more This Special Issue considers the situated and contextualized development of socio-legal, or law and society, scholarship within two materially different legal and academic cultures, namely Germany and the United Kingdom, with a view to achieving a better understanding of why and how such differences in understanding and practice have arisen. The contributions are grouped into three themes. The first reflects upon the influence of institutional contexts and scholarly traditions in terms of the development of those approaches that come under the banner of socio-legal studies. The second features contributions that adopt a comparative perspective in terms of selected areas of law, pointing to notably different approaches taken in Germany and the UK, and considering the development of these respective situations. The third looks at the key contemporary trends, theoretical applications, and methodological approaches taken within both countries' socio-legal academic contexts.
Comparative legal studies, whether taken as discipline or method, has long been engaged with the ... more Comparative legal studies, whether taken as discipline or method, has long been engaged with the conundrum of translation. That is to say, with the question of whether or not it is possible to assert that a legal term, feature or process used in one locus has an equivalent in another, and the extent to which legal features specific to one legal setting, system, culture or mentalité can be ‘understood’ by individuals situated or educated in a different one. Translation is not only an important issue in terms of the focus and content of comparative law, however, but also informs and indeed frames the debate at second order level by permeating both the worldview and method of its proponents. This chapter will discuss how translation and its (im)possibility became the defining criterion within the debate and draw attention to the effect that this second order polarization has had upon contemporary comparative legal studies.
The long-running saga of the prominent Kadi case raises a variety of issues, not least the Court ... more The long-running saga of the prominent Kadi case raises a variety of issues, not least the Court of Justice of the European Union (CJEU)’s overt acknowledgment of the European Union (EU) as a ‘virtuous international actor’ (de Búrca 2009) in terms of rights protection, and the monism/dualism/pluralism issue in terms of global governance. This chapter will consider these from the standpoint of autopoiesis or ‘systems’ theory in order to present a fresh perspective on both legal-systemic unity and considerations of ‘justice’ vis-à-vis human rights.
Legal norms have always crossed borders, be these national, cultural or functional, but recent le... more Legal norms have always crossed borders, be these national, cultural or functional, but recent legal and social changes have made the study of the circumstances under which law and norms are transferred from one context or locus to another more important than ever before. Post-colonial, supranational and global processes have not only drawn attention to this legal 'movement' or transfer but have also raised challenges to conventional conceptions of legal spaces and borders, and these feature alongside legal pluralism at the forefront of contemporary comparative legal studies debates. These two concepts - transfer and pluralism - find themselves inextricably linked by their conceptual relevance to different legal orders and to issues of conflict, contestation and interaction in terms of law, society, culture and legal culture, but are rarely (if ever) conceptualized with relation to each other. This paper submits that framing normative transfer in terms of legal pluralism adds another dimension to each concept, and attempts to illustrate this with reference to the example of nation state-internal normative pluralism in post-colonial societies with indigenous communities.
This chapter submits that the convergence thesis central to the early ‘Integration through Law’ S... more This chapter submits that the convergence thesis central to the early ‘Integration through Law’ School no longer captures the reality of legal integration in a post-Lisbon European Union. Instead of viewing ‘Integration through Law’ in the EU as being the ultimate endpoint of a causal development that starts with diverse domestic situations and ends with European outcomes, the enterprise should be reconceptualised as a ‘Europeanisation of law’, comprising open-ended and juridified processes of social learning.
In this chapter I argue for a systems-theoretical approach that conceptualizes European legal integration through social learning as ongoing processes of legal system-internal differentiation. This ‘double fragmentation’ thesis relies upon the differentiation of the Rechtssystem on the dual bases of jurisdiction (Member State) and legal field or ‘sector’ (for example, contract law, competition law, etc), and provides for an understanding of the Europeanisation process as one premised upon the maintenance of a ‘unity in diversity’ balance.
The recent media furore surrounding the UK government's hostile environment policy and the tr... more The recent media furore surrounding the UK government's hostile environment policy and the treatment of the Windrush generation drew attention to the use of criminal law for regulatory purposes within the context of immigration. The proliferation of immigration offences, and the reproduction of criminal provisions in immigration laws, signals a blurring of the lines between the civil and criminal legal realms: while immigration law purports to be administrative in character it is often effected through criminal law, which is used against citizens and non-citizens in breach of immigration rules when immigration measures alone are ineffective. These 'crimmigration' measures can be understood as examples of hybrid proceduralism. The civil/criminal procedural hybrids used in 'crimmigration' processes are borne of ideologically motivated political expediency, and disproportionately disadvantage vulnerable populations, who are frequently portrayed as deviant. They priv...
This Special Issue considers the situated and contextualized development of socio-legal, or law a... more This Special Issue considers the situated and contextualized development of socio-legal, or law and society, scholarship within two materially different legal and academic cultures, namely Germany and the United Kingdom, with a view to achieving a better understanding of why and how such differences in understanding and practice have arisen. The contributions are grouped into three themes. The first reflects upon the influence of institutional contexts and scholarly traditions in terms of the development of those approaches that come under the banner of socio-legal studies. The second features contributions that adopt a comparative perspective in terms of selected areas of law, pointing to notably different approaches taken in Germany and the UK, and considering the development of these respective situations. The third looks at the key contemporary trends, theoretical applications, and methodological approaches taken within both countries’ socio-legal academic contexts.
In recent years an increasing quantity of UK legislation has introduced blended or 'hybridised' p... more 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.
Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcement... more 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 a 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.
The aim of this paper is to develop an analytical framework for legal integration (integration th... more The aim of this paper is to develop an analytical framework for legal integration (integration through law / integration of law) in the European Union from the perspective of legal culture. We advance a relational conception of legal culture that builds on the tension between, and the reciprocal adaptation of, legal rules and social norms (process) in a given institutional order (unit). Drawing on Paul Bohannan's notion of double institutionalisation of law, we first analyse the relationship between legal rules and social norms in the state legal order. Secondly, we submit that due to the enhanced level of integration of the European polity as compared to traditional international law-type entities it is possible to cognise a European Union legal culture which is simultaneously distinct from and mutually constitutive of the legal cultures of its Member States. We conclude that from the perspective of legal culture, the challenges of European integration are not adequately described either in terms of a 'conflict of laws' or in terms of a 'clash of cultures'. Rather, legal integration in the European Union should be understood as building on parallel but interlocking processes of double institutionalisation of law at the European and the national levels.
An obvious downside of any slogan or motto is that it is necessarily a simplified version of what... more An obvious downside of any slogan or motto is that it is necessarily a simplified version of what it attempts to convey. Thus while they may provide a handy hook, the very 'catchiness' and accessibility of mottoes often serve to disguise the complexity of the concept(s) at their heart. This paper submits that the European Union watchword of unitas in diversitate, or 'united in diversity', suffers from this problem, in particular in terms of its utilisation in Europeanisation debates involving law and legal culture. The aim of this paper is to present the argument that the optimal way of conceptualising 'unity in diversity' in the European Union is as an expression of unity without uniformity and diversity without fragmentation, and this will be done in two sections. This paper will firstly analyse the concepts of 'unity' and 'diversity' and then their juxtaposition, while the second section will look to considerations of culture in order to determine whether it can be seen as either a positive or negative factor in the process of the Europeanisation of law. In doing so it will present two alternative dichotomies of the concept, namely: culture as grounds for unity or grounds for diversity, and culture as instrumentalist or contextualist.
The long-running saga of the prominent Kadi case raises a variety of issues, not least the Court ... more The long-running saga of the prominent Kadi case raises a variety of issues, not least the Court of Justice of the European Union (CJEU)'s overt acknowledgment of the European Union (EU) as a 'virtuous international actor' (de Búrca 2009) in terms of rights protection, and the monism / dualism / pluralism issue in terms of global governance. This chapter will consider these from the standpoint of autopoiesis or 'systems' theory in order to present a fresh perspective on both legal-systemic unity and considerations of 'justice' vis-à-vis human rights.
Abstract: This chapter submits that the convergence thesis central to the early 'Integration... more Abstract: This chapter submits that the convergence thesis central to the early 'Integration through Law'School no longer captures the reality of legal integration in a post-Lisbon European Union. Instead of viewing 'Integration through Law'in the EU as being the ...
Abstract In 1989, Rudolf Wiethöltner alleged that we are witnessing a 'failure of law&am... more Abstract In 1989, Rudolf Wiethöltner alleged that we are witnessing a 'failure of law'in terms of its obligation to achieve 'just law'. This paradox at the very heart of lawin essence, the impossibility of the realisation of legal justice twinned with the law's inability to cease ...
Abstract: Most of the debate about online social networking sites, such as Facebook, has thus far... more Abstract: Most of the debate about online social networking sites, such as Facebook, has thus far revolved around questions of privacy and access to personal information. Users of such services, should they choose to exercise them, have a myriad of privacy options that ...
This Special Issue considers the situated and contextualized development of socio-legal, or law a... more This Special Issue considers the situated and contextualized development of socio-legal, or law and society, scholarship within two materially different legal and academic cultures, namely Germany and the United Kingdom, with a view to achieving a better understanding of why and how such differences in understanding and practice have arisen. The contributions are grouped into three themes. The first reflects upon the influence of institutional contexts and scholarly traditions in terms of the development of those approaches that come under the banner of socio-legal studies. The second features contributions that adopt a comparative perspective in terms of selected areas of law, pointing to notably different approaches taken in Germany and the UK, and considering the development of these respective situations. The third looks at the key contemporary trends, theoretical applications, and methodological approaches taken within both countries' socio-legal academic contexts.
Comparative legal studies, whether taken as discipline or method, has long been engaged with the ... more Comparative legal studies, whether taken as discipline or method, has long been engaged with the conundrum of translation. That is to say, with the question of whether or not it is possible to assert that a legal term, feature or process used in one locus has an equivalent in another, and the extent to which legal features specific to one legal setting, system, culture or mentalité can be ‘understood’ by individuals situated or educated in a different one. Translation is not only an important issue in terms of the focus and content of comparative law, however, but also informs and indeed frames the debate at second order level by permeating both the worldview and method of its proponents. This chapter will discuss how translation and its (im)possibility became the defining criterion within the debate and draw attention to the effect that this second order polarization has had upon contemporary comparative legal studies.
The long-running saga of the prominent Kadi case raises a variety of issues, not least the Court ... more The long-running saga of the prominent Kadi case raises a variety of issues, not least the Court of Justice of the European Union (CJEU)’s overt acknowledgment of the European Union (EU) as a ‘virtuous international actor’ (de Búrca 2009) in terms of rights protection, and the monism/dualism/pluralism issue in terms of global governance. This chapter will consider these from the standpoint of autopoiesis or ‘systems’ theory in order to present a fresh perspective on both legal-systemic unity and considerations of ‘justice’ vis-à-vis human rights.
Legal norms have always crossed borders, be these national, cultural or functional, but recent le... more Legal norms have always crossed borders, be these national, cultural or functional, but recent legal and social changes have made the study of the circumstances under which law and norms are transferred from one context or locus to another more important than ever before. Post-colonial, supranational and global processes have not only drawn attention to this legal 'movement' or transfer but have also raised challenges to conventional conceptions of legal spaces and borders, and these feature alongside legal pluralism at the forefront of contemporary comparative legal studies debates. These two concepts - transfer and pluralism - find themselves inextricably linked by their conceptual relevance to different legal orders and to issues of conflict, contestation and interaction in terms of law, society, culture and legal culture, but are rarely (if ever) conceptualized with relation to each other. This paper submits that framing normative transfer in terms of legal pluralism adds another dimension to each concept, and attempts to illustrate this with reference to the example of nation state-internal normative pluralism in post-colonial societies with indigenous communities.
This chapter submits that the convergence thesis central to the early ‘Integration through Law’ S... more This chapter submits that the convergence thesis central to the early ‘Integration through Law’ School no longer captures the reality of legal integration in a post-Lisbon European Union. Instead of viewing ‘Integration through Law’ in the EU as being the ultimate endpoint of a causal development that starts with diverse domestic situations and ends with European outcomes, the enterprise should be reconceptualised as a ‘Europeanisation of law’, comprising open-ended and juridified processes of social learning.
In this chapter I argue for a systems-theoretical approach that conceptualizes European legal integration through social learning as ongoing processes of legal system-internal differentiation. This ‘double fragmentation’ thesis relies upon the differentiation of the Rechtssystem on the dual bases of jurisdiction (Member State) and legal field or ‘sector’ (for example, contract law, competition law, etc), and provides for an understanding of the Europeanisation process as one premised upon the maintenance of a ‘unity in diversity’ balance.
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Papers by Jen Hendry
In this chapter I argue for a systems-theoretical approach that conceptualizes European legal integration through social learning as ongoing processes of legal system-internal differentiation. This ‘double fragmentation’ thesis relies upon the differentiation of the Rechtssystem on the dual bases of jurisdiction (Member State) and legal field or ‘sector’ (for example, contract law, competition law, etc), and provides for an understanding of the Europeanisation process as one premised upon the maintenance of a ‘unity in diversity’ balance.
In this chapter I argue for a systems-theoretical approach that conceptualizes European legal integration through social learning as ongoing processes of legal system-internal differentiation. This ‘double fragmentation’ thesis relies upon the differentiation of the Rechtssystem on the dual bases of jurisdiction (Member State) and legal field or ‘sector’ (for example, contract law, competition law, etc), and provides for an understanding of the Europeanisation process as one premised upon the maintenance of a ‘unity in diversity’ balance.