vustudents
09-07-2011, 12:41 AM
1. Introduction:
Statute law is either substantive or procedural substantive law confers the rights procedural law is the mode by which a legal right is enforced. The distinction between substantive and procedural law is drawn by each system along the lines of expediency and not is the same place for all purposes. The distinction between these two is very important as every lawyer has to got it touch with them in their daily routine.
2. Law Of Procedure:
I. Definition:
(i) According to Salmond:
“The law of procedure may be defined as that branch of law which governs the process of litigation. It is the law of actions and includes all legal proceedings whether civil or criminal.
Criticism:
Salmond has ignored that less spectacular and unattractive said of procedural law, which goes under the name of “conveyancing” such as drawing sale deeds, partnership deeds, cheques and other bills of exchange.
II. Elements Of Procedural Law:
Following are the elements of judicial procedure or procedural law.
(i) Summons:
This is to give opportunity to all the parties interested, to present themselves before the Court and making the case heard.
(ii) Pleading:
Pleadings bring to light the matters in-issue between the parties. In civil law, it consists of plaint, written statement and replication. In criminal law, it includes complaint and written statement.
(iii) Proof:
Proof is the process by which the parties supply the Court with data necessary for the decision of the case.
(iv) Judgment:
A judgment is the decision of the Court. It may be in the form of decree or order.
(v) Execution:
It is the use of the physical force of the state in enforcing the judgment when voluntary submission to it is withheld.
3. Substantive Law:
(i) According to Salmond:
Substantive law relates not to the process of litigation but to its process and subject-matter.
4. Distinction Between Substantive And Procedural Law:
(i) According to Holland:
Substantive law determines rights and procedural law determines remedies.
Criticism:
Salmond criticizes this view on the grounds:
(a) The whole law of remedies does not belong to procedure as a right to recover damages is a remedial right, but it belongs to substantive law and not to the law of procedure.
(b) According to Holland, there can be no right in the realm of procedure but the law of procedure also creates rights. A right of appeal is both a matter of substance and procedure.
(ii) According to Salmond:
The difference between substantive law and procedural law is one of form and not substance. A rule belonging to one class may, by a changed form, pass over into the other without materially affecting the practical issue, he refers to three classes of such cases.
(a) Equivalency of exclusive evidential fact:
An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. The rule of evidence is that a contract can be proved only by a writing. This corresponds to a rule of substantive law that a contract is void unless it is reduced to writing. In one case, the writing is the exclusive evidence of title. In other case the writing is a part of the title itself.
(b) Equivalency of conclusive evidential fact to fact proved:
A conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it. Procedural law says that the child under the age of 8 cannot have a criminal intention and substantive law exempts such a child form punishment.
(c) Equivalency of limitation of actions to prescription of rights:
The limitation of action is the procedural equivalent of the prescription of rights. The legal procedure destroys the bond between right and remedy and substantive law destroy the right itself.
5. Other Distinctions Between Substantive And Procedural Law:
(i) As to Purpose:
Substantive law is concerned with the ends which the administration of justice seeks.
Procedural law deals with the means and instruments by which those ends can be achieved.
(ii) Regulation:
Substantive law determines the conduct and relation of litigants in respect of the matters litigated.
(iii) Subject matter:
Substantive law regulates the affairs controlled by judicial proceedings.
Procedural law regulates the conduct of affaris in the judicial proceedings.
(iv) As to facts constitute a wrong:
What facts constitute a wrong is determined by substantive law?
Want facts constitute proof of a wrong is a question of procedure.
(v) Nature:
Substantive law deals with the ends which the administration of justice seeks.
Procedural law deals with the means and instruments by which the administration of justice achieve.
(vi) As to connection:
Substantive law is related and connected with public at large.
Procedural law is connected with the parties before the Court.
(vii) As to abolition of Punishments:
The abolition of capital punishment is an alteration of the substantive law.
The abolition of imprisonment for debt merely an alteration in the law of procedure as the imprisonment for debt is merely an instrument to enforce payment.
(viii) Scope:
Substantive law relates to matters outside the Court.
Procedural law deals with matters inside Courts.
(ix) Appearance:
Substantive law provides substance of law in the shape of statute.
(x) Branch of law:
Procedural law is that branch of the law which governs the process of litigation.
(xi) Supremacy:
Substantive law is substance in nature.
Procedural law is subordinate in nature.
6. Conclusion:
To conclude, I can say, that the substantive law which defines our rights and duties is of course important to all of us, but unless the adjective law of procedure is a working machine, constantly these obligations in terms of Court orders and actual execution, the substantive law might as well not exist.
Statute law is either substantive or procedural substantive law confers the rights procedural law is the mode by which a legal right is enforced. The distinction between substantive and procedural law is drawn by each system along the lines of expediency and not is the same place for all purposes. The distinction between these two is very important as every lawyer has to got it touch with them in their daily routine.
2. Law Of Procedure:
I. Definition:
(i) According to Salmond:
“The law of procedure may be defined as that branch of law which governs the process of litigation. It is the law of actions and includes all legal proceedings whether civil or criminal.
Criticism:
Salmond has ignored that less spectacular and unattractive said of procedural law, which goes under the name of “conveyancing” such as drawing sale deeds, partnership deeds, cheques and other bills of exchange.
II. Elements Of Procedural Law:
Following are the elements of judicial procedure or procedural law.
(i) Summons:
This is to give opportunity to all the parties interested, to present themselves before the Court and making the case heard.
(ii) Pleading:
Pleadings bring to light the matters in-issue between the parties. In civil law, it consists of plaint, written statement and replication. In criminal law, it includes complaint and written statement.
(iii) Proof:
Proof is the process by which the parties supply the Court with data necessary for the decision of the case.
(iv) Judgment:
A judgment is the decision of the Court. It may be in the form of decree or order.
(v) Execution:
It is the use of the physical force of the state in enforcing the judgment when voluntary submission to it is withheld.
3. Substantive Law:
(i) According to Salmond:
Substantive law relates not to the process of litigation but to its process and subject-matter.
4. Distinction Between Substantive And Procedural Law:
(i) According to Holland:
Substantive law determines rights and procedural law determines remedies.
Criticism:
Salmond criticizes this view on the grounds:
(a) The whole law of remedies does not belong to procedure as a right to recover damages is a remedial right, but it belongs to substantive law and not to the law of procedure.
(b) According to Holland, there can be no right in the realm of procedure but the law of procedure also creates rights. A right of appeal is both a matter of substance and procedure.
(ii) According to Salmond:
The difference between substantive law and procedural law is one of form and not substance. A rule belonging to one class may, by a changed form, pass over into the other without materially affecting the practical issue, he refers to three classes of such cases.
(a) Equivalency of exclusive evidential fact:
An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. The rule of evidence is that a contract can be proved only by a writing. This corresponds to a rule of substantive law that a contract is void unless it is reduced to writing. In one case, the writing is the exclusive evidence of title. In other case the writing is a part of the title itself.
(b) Equivalency of conclusive evidential fact to fact proved:
A conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it. Procedural law says that the child under the age of 8 cannot have a criminal intention and substantive law exempts such a child form punishment.
(c) Equivalency of limitation of actions to prescription of rights:
The limitation of action is the procedural equivalent of the prescription of rights. The legal procedure destroys the bond between right and remedy and substantive law destroy the right itself.
5. Other Distinctions Between Substantive And Procedural Law:
(i) As to Purpose:
Substantive law is concerned with the ends which the administration of justice seeks.
Procedural law deals with the means and instruments by which those ends can be achieved.
(ii) Regulation:
Substantive law determines the conduct and relation of litigants in respect of the matters litigated.
(iii) Subject matter:
Substantive law regulates the affairs controlled by judicial proceedings.
Procedural law regulates the conduct of affaris in the judicial proceedings.
(iv) As to facts constitute a wrong:
What facts constitute a wrong is determined by substantive law?
Want facts constitute proof of a wrong is a question of procedure.
(v) Nature:
Substantive law deals with the ends which the administration of justice seeks.
Procedural law deals with the means and instruments by which the administration of justice achieve.
(vi) As to connection:
Substantive law is related and connected with public at large.
Procedural law is connected with the parties before the Court.
(vii) As to abolition of Punishments:
The abolition of capital punishment is an alteration of the substantive law.
The abolition of imprisonment for debt merely an alteration in the law of procedure as the imprisonment for debt is merely an instrument to enforce payment.
(viii) Scope:
Substantive law relates to matters outside the Court.
Procedural law deals with matters inside Courts.
(ix) Appearance:
Substantive law provides substance of law in the shape of statute.
(x) Branch of law:
Procedural law is that branch of the law which governs the process of litigation.
(xi) Supremacy:
Substantive law is substance in nature.
Procedural law is subordinate in nature.
6. Conclusion:
To conclude, I can say, that the substantive law which defines our rights and duties is of course important to all of us, but unless the adjective law of procedure is a working machine, constantly these obligations in terms of Court orders and actual execution, the substantive law might as well not exist.