Substantive And Procedural Law
Q. Explain the difference between substantive law and law of procedure.(1996)(1995),(1993)
1. Introduction:
Statute law is either substantive or procedural. Substantive law confers the rights and procedural is the mode by which a legal right is enforced. The distinction between substantive and procedural law is drawn by each legal system along the lines of expediency and not in the same place for all purposes. The distinction between these two is very important as every lawyer has to get in touch with them in his daily routine.
2. Law Of Procedure:
(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.
Salmond has ignored that less spectacular and unattractive side of procedural law, which goes under the name of ”Conveyancing” such as drawing sale deeds, partnership deeds, chequse and other bills of exchange.
(II)Elements Of Prcedural Law:
Following are the elements of judicial procedure or procedural law.
(i) Summons:
This is give an opportunity to all the parties interested, to present themselves before the court and making the case heard.
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 complaints and written statement.
Proof is the process by which the parties supply the court with the data necessary for the decision of the case.
A judgement is the decision of the court. It may be in the form of decree or order.
It is the use of the physical force of the state in enforcing the judgement 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 purpose and subject-matter.
4. Distinction Between Sub-Stantive And Procedural Law:
(I)According to Holland:
Substantive law determines right and procedural law determines remedies.
Salmond critcizses this view on two grounds.

  1. The whole law of remedies dose 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.
  2. According to Holand, there can be no rights 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 of substance. A rule belonging to one class may, by a change form, pass over into the other without materially affecting the practical issue. He refers to three classes of such cases.

  1. 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 cases the writing is a part of the title itself.

  1. Equivalency of Exclusive Evidential Fact To Fact Proved:

A conclusive evidential fact is equivalent to and tends to take the place of the pact 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 from punishment.

  1. Equivalency of Limitation of Actions to Prescription of Right:

The limitation of actions is the procedural equivalent of the prescription of rights. The legal procedure destroys the bond between right and remedy and substantive law destroys 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.
Substantive law determines the conduct and relation of litigants in respect of the matters litigated.
Procedural law regulates the conduct and relations of courts and litigants in respect of the litigation itself.
(III)Subject Matter:
Substantive law regulates the affairs controlled by judicial proceedings.
Procedural law regulates the conduct of affairs in the judicial the conduct of affairs in the judicial proceedings.
(IV)As To Facts Constitute A Wrong:
What fact constitute a wrong is determined by substantive law.
What facts constitute proof of a wrong is a question of procedure.
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 Punishment:
The abolition of capital punishment is an alteration of the substantive law.
The abolition of imprisonment for debt is merely an alteration in the law of procedure as the imprisonment for debt is merely an instrument to enforce payment.
Substantive law relates to matters outside the court.
Procedural law deals with matters inside courts.
Substantive law provides substance of law in the shape of statute.
Procedural law is the law of actions meanings by actions.
(X)Branch Of Law:
Procedural law is that branch of the law which governs the process of litigation.
All the residue is substantive law.
(XI) Supremacy:
Substantive law is supreme 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 translating these obligations in terms of court orders and actual execution, the substantive law might as well not exist.

Sponsored Links