Substantive Law: An Introduction

Law could be broadly categorised into two parts one is substantive law and other is procedural law. The substantive law could be defined as the part of the law that creates, defines and regulate rights and obligation of persons among each other and between the states. The substantive law consists of written statutory legislations passed by the legislature. While procedural laws are those set of rules which regulates how those rights and responsibilities are enforced.

The substantive law refers to the categories of public and private law, including the law of contracts, the law of torts, real property and criminal law. For instance, the criminal law defines certain behaviour illegal and also lists the element which government must prove to convict a person guilty of a crime. In contrast rights of an accused person is guaranteed under Article 20 (2) and (3) of the Indian constitution, known as double jeopardy and self-incrimination respectively is part of the procedural law.

Most of the substantive law comes from common law and found their base in judicial decisions until the 20th century. The substantive law governs people and organisation in their daily interactions; these are the laws that non-lawyers think of when they think about what law is. We could say that procedural laws are a door to litigation while substantive laws are set to govern the society and courts were set up for its enforcement.

The procedural foundation of substantive law

Heading seems ironical? Right. The substance-procedure dichotomy is a popular target of critics because the procedural law is inherently substantive. But they ignore that substantive law is also inherently procedural. The construction of substantive law carries assumptions about the procedures that will apply when that substantive law is eventually enforced. Those procedures are ingredients of the substantive law and, if not applied, will lead to over- or under-enforcement of the substantive mandate. Yet the substance-procedure dichotomy encourages us to treat procedural systems as different leading to a problem of mismatches between substantive law and procedural law.

The procedure as a substance could be clearly summarised with the simple declaration that “Procedure is power” and any informed observers of the litigation process could understand the substantive capacity of the procedure. The argument that procedure is the part of substantive can be presented in two basic forms. The classic version is that procedure has substantive qualities because it affects the outcome of cases. The second version is that procedural reformers have a substantive agenda.

The substantive law relies on the procedure to bring out the substantive mandate. Substantive law without any procedure at all would be a vain and hollow thing. Although some substantive laws may be merely symbolic, it is surely true that “the best laws in the world are meaningless unless they can be meaningfully enforced.” Substantive law without procedural law would be a castle in the air. As castles in the air are seldom built, the substantive law would seldom be constructed without some procedure to vindicate that law.

Summarising the whole argument we come to the conclusion that understanding that procedure is substantive, and that substance is procedural, debunks two myths: first, that there is a substance-procedure are two completely different things, and second, that procedure is the inferior partner.


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