Part 5 of the POCA allows the “executing authority” to recover in civil proceedings property that is or constitutes property acquired through unlawful conduct (POCA, at p. 240). Footnote 31 Given the perceived inadequacies of existing criminal procedures and the associated difficulties in obtaining a criminal conviction, post-conviction recruitment was often impossible – therefore, the benefits of non-conviction approaches were increasingly proclaimed in this regard purely instrumental. Nevertheless, and although these processes have progressed in terms of efficiency, it is difficult not to deplore their introduction as a preference for instrumentality rather than due process considerations, not least because there are obvious reasons for improving the procedural safeguards inherent in criminal proceedings. As Roberts and Zuckerman (2010:247) explain about the increased standard of proof: “This asymmetric standard is not a natural or inevitable event in the allocation of the burden of proof; Rather, it is an additional obligation that goes beyond the prosecutor`s obligation to prove guilt, the presumption of innocence and his invigorating liberal philosophy of respect for persons. By requiring this increased standard of proof, criminal proceedings are established to be inherently risk-averse, footnote 32, when an unlawful conviction is perceived to be far worse than an unlawful acquittal. Footnote 33 The “asymmetric standard” of the criminal law can therefore be seen as a prophylactic measure against an erroneous outcome of the trial (i.e., a false conviction) or, in the language of systems theory, as a “bulwark” against systemic excesses. Footnote 34 We consider this, first, in relation to the “civil” nature of the POCA Part 5 proceeding and, second, with respect to the due process concerns arising from this type of hybrid proceeding. But what about legal legitimacy? Although we have presented it as a problematic term for a systemic theoretical construction, 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 constraints – namely the right to due process – are extended to the legal system, incorporating value criteria into the “black box” of legal legitimacy. Although these procedural rights are “a central element of the arsenal of values in the name of which the political system legitimizes itself” (Philippopoulos-Mihalopoulos 2010: 154), these rights act as a shield against the structural violence that arises from unrestricted functional (de)differentiation, and this applies to all functional systems, not just political systems.

Through a combination of rights such as systemic constraints and the rule of law as a structural coupling between political and legal systems, we can understand legal legitimacy. Legal legitimacy is not sufficient to be legally valid, but requires that the functioning of the legal order corresponds both to the minimum restrictions imposed on it by the procedural rights which it itself has recognised as legally valid, and to the political values that serve to guarantee the content of the rule of law and the structural coupling between the political and legal systems. 37 Defined here as considerations of aspects which go beyond what falls within the strictly legal field. As Bedjaoui notes, “A decision dictated by opportunism is… which, while remaining legal, is inspired by feelings of relevance, wisdom or prudence”, Bedjaoui, M., “Opportunism in the decisions of the International Court of Justice”, (2001) 71(1) BYIL 1CrossRefGoogle Scholar, p. 3. Before proceeding with this argument, a number of concepts require further explicit attention, including legitimacy. Not only does Niklas Luhmann despair of the concept of legitimacy (2004: 261), footnote 9, which can rightly be considered a highly controversial term because of its countless uses and conceptions (Gallie, 1995), although there is a preliminary consensus in some areas of study.

Footnote 10 A concept perhaps more familiar to politics than law, political legitimacy can be understood contractually as the acceptance of authority by the people, usually an established system of democratic government based on Locke`s two principles: consent to the governed and majority rule. The challenge arises when we look beyond this basic concept and try to clarify or refine it, for example to examine whether political legitimacy is based on descriptive or normative reasons or whether it has procedural or substantive requirements. Such arguments cannot be based on an objective basis, but can be based on contingent political values. Indeed, if we change our position to a more explicit legal perspective, it becomes clear that while legitimacy is an important concept of law, the task of giving it content does not fall to law, but to political and moral philosophy. The reason for this, as Weinberger (1999: 347, emphasis added) explains, that: [T]he rule of law concerns the relationship of government to 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 should be respected by stakeholders in creating, developing, interpreting and applying the law. (Turpin and Tomkins 2007:76) Legitimation criteria are value criteria 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 forms of production and/or a kind of acceptance of the law as criteria for legitimation. […] Legitimacy is not an objective characteristic of a valid law, but an assessment based on presupposed political beliefs.

[…] The legality of legal procedures 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 evidence of legality. The statement that concludes the previous section is solid and, as such, requires both explanation and justification. The final section of this paper argues – in relation to the idea of the rule of law (formally conceived) as a structural linkage – that due process rights include the minimum procedural standards that policy and law must respect, and that these contingent values serve to combine legal and political legitimacy. In doing so, we examine the attrition of the extended procedural safeguards normally applicable in criminal proceedings by mixed civil-criminal measures and examine systemic self-sufficiency with respect to the concept of legitimacy. However, it is not a question of the legal validity of a practice in which a civil standard of proof is used in a criminal law mechanism that we have reservations about. Rather, we question the legitimacy of civil recovery, particularly with respect to the procedural norms contained in the rule of law, which we believe are undermined by the disastrous combination of legislative surpluses in the implementation of the POCA and the subsequent judicial failure to protect individual due process rights before the courts. Alexander Campbell, in his classic work The Christian System, published in 1839, devoted the entire 27th chapter to a study of opportunism. If you have never read this scientific research before, I encourage you to do so. In this chapter, he lists twelve points that he believes are crucial to our correct perception of opportunism, which he called “the circumstances of the Gospel and the Church of Christ.” It was his assertion that “God`s people are left to their own discretion” when it comes to the use of a tool. There is no need for complete agreement in the Church on this point, for “no class of men—apostles, teachers, soldiers—has ever agreed on questions of expediency.” He gave an example: “That `marriage is honorable in all things` is clearly taught; But who has ever read a verse about how the most important of all social institutions should be realized? Therefore, these tools are left to the best judgment of individual companies.