The difference between procedural law and substantive law. Also called adjectival law, as opposed to that body of law that the courts are established to administer called substantive law, it means the rules according to which the substantive law is administered, e. Each federal administrative agency is empowered to administer a particular statute or statutes. Yale law school yale law school legal scholarship repository.
Principles and working vocabulary key terms actual cause actus reus administrative law attendant circumstances beyond a reasonable doubt burden of proof butfor test canon law capital felony case law civil law code of hammurabi common law compensatory damage constitutional law constructive intent corpus delicti courts. However, although procedural law is often used as a convenient shorthand term for the non substantive laws applicable to. The same law may be procedural as well as substantive. Procedural law provides the process that a case will go through whether it goes to trial or not. Pace law library research guides international criminal law substantive law search this guide search. Substantive law defines how the facts in a case will be handled. Jan 31, 2016 substantive and procedural law what is procedural law. However, although procedural law is often used as a convenient shorthand term for the nonsubstantive laws applicable to arbitration, it would be wrong to. The procedural law is all about the initiation and prosecution of civil and criminal proceedings. On the other extreme, substantive law alludes to the law that deals with the subject matter of the case and states the rights and obligations of the parties concerned. Law that establishes the rules of the court and the methods used to ensure the rights of individuals in the court system. Procedural law definition, examples, cases, processes.
Due process refers to the legal rights owed to a person in criminal and civil actions and is supported by the 14th amendments right to life. Since the beginning of the 19th century a strong thread of english law has been woven into the fabric of that system. Uncitral model law 281 and 282, as well as institutional rules. The body of law that prescribes formal steps to be taken in enforcing legal rights. The procedural law can be distinguished from the substantive law on the following grounds. Substantive law definition, examples, cases, processes. It also defines what creates a criminal issue and a tort claim 2. Substantive law is the substance of the case, and procedural law provides the procedure that would be best to handle the substance of each particular case. The part of the law that creates, defines, and regulates rights, including, for example, the law of contracts, torts, wills, and real property. Substantive law requires that the prosecutor prove every element of a crime in order for someone to be convicted of that crime.
Procedural law, on the other hand, is a set of rules used to govern the flow of legal cases. General principles of procedural law and procedural jus cogens. Pdf the procedural foundation of substantive law researchgate. Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. Embodying this systematization and formalization, procedural law constitutes the sum total of legal rules designed to ensure the enforcement of rights by means of the courts. Not so, unless i qualify my statement by adding, for the purpose in hand. Among the several, often booklength, sections of the digests most often one or two are devoted to law.
Philips encyclopedia of life support systems eolss accompanied by a purpose to commit another crime. Thus, whereas substantive law would describe how two people might enter into a contract, procedural law would explain how someone alleging a breach of. Sources of procedural law as sources of procedural law, we must understand the ones that refer to the foundation or fundamental concepts that allow us to judge the legitimacy and validity of legal rules that procedural law comprises. Marx noted that substantive law has its own indispensable inherent procedural forms. Substantive law and procedural law work hand in hand to move cases forward. General principles of procedural law and procedural jus cogens s. But the particular task of restating substantive law, whether in text. Aug 08, 2017 procedural law is the body of law that deals with the technical aspects, such as duties and procedures for obtaining redress for a wrong. Substantive equality and procedural justice iowa law. In chinese, procedural law and substantive law are represented by these characters. Aug 22, 2017 substantive law also defines types of crimes and their severity. Administrative law is a combination of substantive and procedural law. Substantive law and procedural law are the two main categories within the law. Because substantive law is calibrated to achieve some outcome, fidelity to that law may require that it remain hinged to the corresponding procedural law that was presumed its adjunct.
There are restrictions on applying new substantive law as statutory or case law retroactively. Procedural law deals with and lays down the ways and means by which substantive law can be enforced. Aug 24, 2017 the procedural law applies to both legal and nonlegal matters. In doing this, restatements seem on the surface to be concerned with rules. Substantive law legal definition merriamwebster law dictionary. This article argues that substantive law is also inherently procedural. Seat of arbitration, procedural law lex arbitri and. In particular, procedural techniques have largely assimilated the english patterns. The areas of procedural and substantive fairness most often exist in the minds of employers, h. Clearly, the court functions in the system of modern law, and it is not called upon to question this dichotomy as such. Both public and private law may be substantive law or procedural law. Procedural law is the rules of conducting a legal action. Substantive law international criminal law research. Legal rights themselves are created and defined by substantive law.
The nigerian supreme court has highlighted the essential difference between substantive and procedural law as follows. Whether or not a dismissal has been effected in acc. Different rules generally govern civil procedure and criminal procedure, or the procedure followed in trials and in appeals. This special procedural law was adopted in 1989, to much controversy, and is known as the administrative litigation law the all.
This contextualization of substantive law within a procedural framework will be subconscious when not deliberate. Because procedural law is a means for enforcing substantive rules, there are different kinds of procedural law, corresponding to the various kinds of substantive law. Substantive law and procedural law work together to ensure that in a criminal or civil case, the appropriate laws are applied and the proper. Again, salmond makes the interesting observation that procedural law is concerned with affairs inside the courts of justice while substantive law deals with matters in the world outside. Conversely, the substantive law cannot be applied to nonlegal matters.
Pdf the substanceprocedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. These statutes are the substantive law that is enforced by the agency. Difference between substantive and procedural law business law. Jan 16, 2020 procedural law is the set of rules by which courts in the united states decide the outcomes of all criminal, civil, and administrative cases substantive law describes how people are expected to behave according to accepted social norms. The law of evidence doesnt come under the purview of substantive or procedural law, but under adjective law, which defines the pleading and procedure via which substantive laws are brought into practice. They are the laws that nonlawyers usually think of when they think about what law is. Substantive law refers to the body of rules that determine. Chapter 17 applicable procedural law international. It defines crimes and punishments, as well as civil rights and responsibilities. Procedural law sets the steps in place through due process. Internal and external procedural issuesthe applicable procedural law must be identified. This chapter examines the effect of the superimposition upon. Substantive criminal law and criminal procedure steven semeraro, marjorie cohn, ruth b. Although charles clark acknowledged that the line between substantive and procedural law is shadowy at best, 142 he seemed simultaneously to embrace the notion that procedure is normatively distinct from and subordinate to substantive law.
The procedural law applies to both legal and nonlegal matters. Procedural law vs substantive law difference and comparison. Substantive law establishes the rights and obligations that govern people and organizations. Abstract this chapter deals with the interaction between procedural law and substantive private law in the context of a partially harmonised but mainly non. Most, if not all, modern legal professions either encourage or offer practitioners some form of postqualification practical training in order to refresh their knowledge of substantive law while informing them of procedural and other developments that. Substantive law is then relied upon to determine the rights that are afforded to the accused. Neeraj sharma assistant professor what is substantive law the part of the law that creates, defines, and regulates the rights, duties, and powers of parties. Mar 03, 2015 substantive vs procedural law identifying the distinction between substantive and procedural law is simple as the terms themselves indicate the difference. Substantive law is a statutory law that deals with the legal relationship between people or the people and the state. Substantive criminal law, criminal procedural law and. The procedural foundation of substantive law scholarly.
Substantive law and procedural law are terms used to describe and distinguish two different types of law. Substantive law and procedure toward preserving and insuring the efficient operation of an independent judiciary as we know it today. It focuses upon two major divisions within law, namely, the divisions between public and private law and between substantive and procedural law. In substantive law, there is independent power to decide the fate of a case. It is for this reason that the distinction between substantive and procedural issues seems obvious to our contemporaries. The substance procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. There are even digests on specific aspects of substantive law, mainly on inheritance and on adoption. In one, procedure is substantive because procedure affects the outcome of cases.
Substantive law is inseparably linked with procedural law. Substantive and procedural laws procedural law crimes. Parties have not chosen the substantive law parties have chosen the substantive law absent the choiceof law agreement, arbitral tribunal has broad power to rule on the applicable substantive law this power is given to the tribunals by many national laws see e. I will contend that fullers secular or procedural natural law, as described by moffat, does not cover the theoretical position that could be occupied by a substantive natural lawyer, that such a. It regulates the creation and exchange of property and contracts. Procedural regulations enter into and condition all substantive law s becoming actual when there is a dispute. Federal question claim if the action is a federal question claim, federal substantive and procedural law will control. Procedural law consists of the set of rules that govern the proceedings of the court in. Substantive law refers to the body of rules that determine the rights and obligations of individuals and collective. However, the vast majority of commentary focuses on substantive rather than procedural concerns. A guide to online and print resources, including substantive and procedural law, secondary sources, journals and news. The role of substantive law and procedure in the legal process. If this is the first time you use this feature, you will be asked to authorise cambridge core to connect with your account.
No wonder the question often arisesexactly what is procedural law and how do i research it. Why procedure is more important than substantive law. General principles of law have long been central to the practice and scholarship of both public and private international law. In germany, the expressions formelles recht and materielles recht were developed in the 19th century, because only during that time was the roman actio split into procedural and substantive components. Whats the difference between procedural law and substantive law. Nov 18, 2017 under criminal law, substantive law defines different types of crimes, along with the penalties set for every crime. Substantive lawthe part of the law that creates, defines, and regulates rights, including, for example, the law of contracts,torts, wills, and real property. General concept of substantive law and procedural law. The concept and historical background of the evidence law.
Under criminal law, substantive law defines different types of crimes, along with the penalties set for every crime. Difference between substantive and procedural law compare. General principles of procedural law and procedural jus. Strong abstract general principles of law have long been central to the practice and scholarship of both public and private international law.
By procedural law, we mean the law that prescribes the methods, procedure and machinery for the enforcement of rights and obligations. Substantive law article about substantive law by the free. Substantive law legal definition of substantive law. South african law is an uncodified civil law system with romandutch law, and originally roman law, as its major formative element. Substantive law governs the behavior of all of us in ordinary life. The procedural law determines how a proceeding concerning the enforcement of substantive law will occur. That there are other fields in which legal scholarship is needed is unquestioned. Procedural law governs the process of litigation and relates lo actions of civil and criminal proceedings. The dividing line between substantive law and procedural law, a characteristic feature of the paradigm of modern legal thought, has reached its limits in certain. If that kind of study is to be effective in guiding an existing institution which claims to be applying precepts, standards, and principles of substantive law, it becomes. Substantive law, on the other hand, deals with the substance of your charges.
It is the machinery by which substantive laws are set and kept in motion. Procedural law establishes the legal rules by which substantive law is created, applied and enforced, particularly in a court of law. Others might have a vague idea but do not fully understand its meaning. What substantive law says should be means nothing except in terms of what procedure says that you can make real. Interaction of substantive law and procedure oxford. A body of law that strictly conforms to due process, procedural law also regulates the steps in processing a case. The article analyses the fundamental premises of the differentiation between substantive and procedural rules in private international law and arbitration. The statutory law regulates the procedural law, whereas substantive law is governed by the act of parliament.
In particular, laws that provide how the busines of the court is to be conducted. The distinction between the substantive and procedural law is not an always easy and clearcut. Parties have not chosen the substantive law parties have chosen the substantive law absent the choiceoflaw agreement, arbitral tribunal has broad power to rule on the applicable substantive law this power is given to the tribunals by many national laws see e. The author opens the paper with the general differentiation between substantive and procedural.
Elements are the specific acts needed to complete a crime. For example, substantive law is used to decide whether a crime was a hate crime, whether a murder was committed in selfdefense, and so on. Procedural regulations enter into and condition all substantive laws becoming actual when there is a dispute. The factual material contents of these relations form the objective basis upon which substantive law defines mutual rights and responsibilities of the participants in the relations. Substance and procedure in the conflict of laws yale law school. However, many of us probably have not heard of the above terms. In summary, substantive law is based on statutory or written laws passed by legislature. Definitions and scope 3 it has been noted that there is a clear distinction between the substantive and procedural laws of arbitration. Substantive law defines the elements of a case, while procedural law focuses on the burden that is on the plaintiff to prove any wrongdoings to a jury that fit within the elements provided. Rather, substantive law has an associated procedure that must be applied by the enforcing court if the substantive law is to achieve the level of deterrence its drafters intended. For example, burglarywhich is defined as entering a building without permission and with the intent to commit another.
Main abstract the substanceprocedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. The substanceprocedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. Procedural law is the set of rules by which courts in the united states decide the outcomes of all criminal, civil, and administrative cases substantive law describes how people are expected to behave according to accepted social norms procedural laws govern how court proceedings dealing with the enforcement of substantive laws are conducted. Study of the echr caselaw article 6 1 summary the dividing line between substantive law and procedural law, a characteristic feature of the paradigm of modern legal thought, has reached its limits in certain cases considered by the court. Jun 19, 2018 substantive law provides the elements of the case to show the possibility of what is right and wrong, and procedural law defines the burden of proof by which the plaintiff needs to prove those elements to the jury. Therefore, substantive law defines the rights and duties of the people, but procedural law lays down the rules with the help of which they are enforced. Statutory or written law that governs the rights and obligations of everyone within its jurisdiction. Substantive law provides the elements of the case to show the possibility of what is right and wrong, and procedural law defines the burden of proof by which the plaintiff needs to prove those elements to the jury. To apply any other procedure leads to over or underenforcement of the substantive mandate. Originally from international arbitration law and practice, third edition17. A working definition of procedural law is the rules and principles that govern the. Difference between procedural law and substantive law.
This section deals with the fields of law in a more general way. Difference between procedural law and substantive law with. Substantive criminal law, criminal procedural law and judicial cooperation in criminalcustoms matters in the eu dr. This is in contrast to substantive law, which refers to the actual laws by which a crime may be charged, or which govern how the facts of the.