Substantive vs. Procedural law

All legal systems around the world have to make a difference between the substantive and procedural types of legal norms. Here we will explain the specific difference between these two and how does this division affect the legal system and the application of law.

Post5bSubstantive law, also called material law in many countries which base their legal systems on the Roman tradition, represents all norms which regulate the way society should work. More precisely, these rules govern the behavior of legal subjects within it. It defines basic and other rights and responsibilities in many, if not all, branches of law, from civil to criminal law. It is usually codified (in continental legal systems) or found in precedents (in common law systems).

Procedural law comprises all the rules which regulate how a proceeding should be handled. Whether it is a civil, criminal, lawsuit or administrative proceeding, procedural laws have to be applied. These rules exist so that the substantive laws are applied the right way, the way the legislator demands.They are here to ensure the legality and the correct, fair and consistent application of substantive laws.

Post5aStructural differences

The easiest way to explain the differences between these two types of legal norms is to use an example. Let’s say that a person committed a crime and will go to trial. The rules which will decide his fate, meaning the punishment for his actions is the substantive laws. Types of crimes, punishments, and many other institutes of criminal law (for the sake of this example) make up substantive law. It tells us how to handle and explain the facts of the case.

Post5The job of procedural law is to make sure that the proceedings during which the substantive laws are applied flow by the law. Back to our example: this means that the accused has to be given all the legally guaranteed rights he has at his disposal during the process. So, while the substantive law will be applied to determine whether the crime exists or not, the rules of procedural law will determine the application of these laws during the proceedings. The reason behind the procedural law is not only to ensure the right application of substantive law, but it is also to enforce the way the case will proceed so that the desired goals can be achieved.

Summary

Post5dWhile substantive laws are about the meaning of rights, powers, and duties, procedural law is about the order,  the form by which laws have to be applied. Substantive law is interested in the facts and the way they have to be handled, while procedural law explains the way the legal process has to unfold, step by step. The procedural law can be applied to non-legal contexts, but the substantive law cannot. Substantive law is there to provide the legal solution to a certain case and how the case is handled, while procedural law deals with how the law will be executed and the manner in which a case will proceed.