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 privilege specific policy goals over considerations of human rights, civil liberties, and due process.
Defense date: 26/06/2009 ; Examining Board: Bruno De Witte (EUI), Christian Joerges (Supervisor, former EUI, University of Bremen), Hans Lindahl (Tilburg University), Hans-W. David Nelken (University of Macerata) ; First made available online: 27 July 2021 ; This thesis argues for a sociologically observable equilibrium between the competing forces of legal unity and legal diversity within the European Union (EU) in order to conceptualise the contested process of the Europeanisation of law as a contingent, reciprocal one that has no endpoint in either uniformity or discontinuity. The main point of departure is the concept of legal culture, which provides for an institutionally-bounded and territorially-delimited jurisdiction with a unique socio-historical context. Member State legal cultures, within the overarching EU legal space, are conceptualised as a segmentary form of legal system-internal differentiation on the basis of territory, whereby communications originating in and pertaining to a particular Member State are conditioned in terms of the legal-cultural context of that Member State. This thesis argues that this "fragmentation" is a force of diversity within the Europeanisation process, which operates against a unifying force, understood here to be a similarly legal-system internal differentiation on the basis of areas of law and their related epistemic communities. This thesis advances the argument that, instead of viewing the existence of legal diversity within the EU as being essentially problematic for the process of Europeanisation of law, legal diversity should be reconceptualised as a productive counterweight to any purported legal unity in the EU and re-entered into the process in order to maintain its openness. While the concept of legal unity provides the framework for the operation of the Europeanisation process, that of legal diversity within that framework provides the means by which the process remains open-ended and fully contingent. Legal unity, in turn, is positioned as a counterbalance to legal diversity in that it places restraints upon the diversifying forces of both nationalism and fragmentation within the EU, thus maintaining the overarching framework within which the process of Europeanisation can occur. Legal "unity in diversity", conceptualised both as a precondition of the process of the Europeanisation of law and as a default aim, sits in stark contrast to the two main theoretical approaches to the Europeanisation of law, namely deracinated formalism and autochthonous culturalism. This thesis proposes a middle way that avoids the pitfalls of these two extreme schools of thought by operationalising the conundrum of unitas in diversitate in a way that both maintains the critical openness of the ongoing Europeanisation of law process, and facilitates a form of organically-evolving social validity for this process and the resultant legal structure of the EU.
This article advances a novel account of ad hominem criminalisation that draws upon a distinct theory of the Rule of Law and its egalitarian foundations. Employing the recent and controversial example of Knife Crime Prevention Orders, as established by the Offensive Weapons Act 2019, it argues that the concept of civic equality is central to understanding the vice of ad hominem criminalisation as an aberrant form of government by law. This vice consists in the manner that such criminalisation individualises, differentiates and instrumentalises the regulatory subject, placing them outwith the bounds of civic equality as established by the Rule of Law.
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.
