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Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process (in the U.S.) or fundamental justice (in other common law countries) to all cases that come before a court. Substantive law, which refers to the actual claims and defenses whose validity is tested through the procedures of procedural law, is different from procedural law.

In context of procedural law; procedural rights may also refer not exhaustively to rights to Information, rights to justice, rights to participation which those rights encompassing, general Civil and Political rights. In environmental law, these procedural Rights have been reflected within the UNECE Convention on "Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters" known as the Aarhus Convention (1998).

Legal procedure[edit]

Although different legal processes aim to resolve many kinds of legal disputes, the legal procedures share some common features. All legal procedure, for example, is concerned with due process. Absent very special conditions, a court can not impose a penalty - civil or criminal - against an individual who has not received notice of a lawsuit being brought against them, or who has not received a fair opportunity to present evidence for themselves.

The standardization for the means by which cases are brought, parties are informed, evidence is presented, and facts are determined is intended to maximize the fairness of any proceeding. Nevertheless, strict procedural rules have certain drawbacks. For example, they impose specific time limitations upon the parties that may either hasten or (more frequently) slow down the pace of proceedings. Furthermore, a party who is unfamiliar with procedural rules may run afoul of guidelines that have nothing to do with the merits of the case, and yet the failure to follow these guidelines may severely damage the party's chances. Procedural systems are constantly torn between arguments that judges should have greater discretion in order to avoid the rigidity of the rules, and arguments that judges should have less discretion in order to avoid an outcome based more on the personal preferences of the judge than on the law or the facts.

Legal procedure, in a larger sense, is also designed to effect the best distribution of judicial resources. For example, in most courts of general jurisdiction in the United States, criminal cases are given priority over civil cases, because criminal defendants stand to lose their freedom, and should therefore be accorded the first opportunity to have their case heard.

European history and concepts[edit]

"Procedural law" and "substantive law" in various languages[edit]

"Procedural law" in contrast to "substantive law" is a concept available in various legal systems and languages. Similar to the English expressions are the Spanish words derecho subjetivo and derecho material or derecho sustantivo, as well as the Portuguese terms for them, direito adjetivo and direito substantivo. Other ideas are behind the German expressions formelles Recht (or Verfahrensrecht) and materielles Recht as well as the French droit formel/droit matériel, the Italian diritto formale/diritto material and the Swedish formell rätt/materiell rätt; all of which, taken literally, mean "formal" and "material" law. The same opposition can be found in the Russian legal vocabulary, with материальное право for substantive law and процессуальное право for procedural. Similar to Russian, in Bulgarian материално право means substantive law and процесуално право is used for procedural. In Chinese, "procedural law" and "substantive law" are represented by these characters: "程序法" and "实体法".

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.

The substance of "Procedural law"/"Substantive law" in Europe[edit]

In the European legal systems the Roman law had been of great influence. In ancient times the Roman civil procedure applied to many countries. One of the main issues of the procedure has been the actio (similar to the English word "act"). In the procedure of the legis actiones the actio included both procedural and substantive elements. Because during this procedure the Praetor had granted, or denied, litigation by granting or denying, respectively, an actio. By granting the actio the praetor in the end has created claims. I.e. a procedural act caused substantive claims to exist. Such priority (procedure over substance) is contrary to what we think of the relationship nowadays. But it has not only been an issue of priority and whether the one serves the other. Since the actio had been composed of elements of procedure and substance it was difficult to separate both parts again.

Even the scientific handling of law, which developed during medieval times in the new universities in Italy (in particular in Bologna, Mantua), did not come to a full and clear separation. (The English system of "writs" in the Middle Ages had a similar problem to the Roman tradition with the actio.)

In Germany the unity of procedure and substance in the actio definitely was brought to an end with the codification of the Bürgerliches Gesetzbuch (BGB) which came into force on January 1, 1900. The expression Anspruch (§ 194 of BGB) - meaning "claim" - has been "cleared" from procedural elements. And this was the time for "founding" the terms formelles / materielles Recht. However, after World War II the expression formelles Recht obviously was found to be "contaminated" and to a broad extent has been replaced by Prozessrecht, narrowing the idea behind it to "law of litigation" (thereby excluding e.g. the law of other procedures and the law on competences).

See also[edit]

Literature[edit]

Europe in ancient and medieval times / Germany[edit]

  • Andreas Kollmann: Begriffs- und Problemgeschichte des Verhältnisses von formellem und materiellem Recht, edition: Duncker & Humblot, Berlin, Schriften zur Rechtsgeschichte no. 68, 1996

Notes[edit]

Further reading[edit]

  • Cardozo, Benjamin N. (1998). The Nature of the Judicial Process. New Haven: Yale University Press.
  • Frank, Jerome (1985). Law and the Modern Mind. Birmingham, AL: Legal Classics Library.
  • Levi, Edward H. (1949) An Introduction to Legal Reasoning. Chicago: University of Chicago Press.
  • Marshall, Thurgood (2001). Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences. Chicago: Lawrence Hill Books.
  • Miller, Arthur S. (1985). Politics, Democracy and the Supreme Court: Essays on the Future of Constitutional Theory. Westport, CT: Greenwood Press.
  • Tribe, Laurence (1985). God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History. New York: Random House.
  • Zelermyer, William (1977). The Legal System in Operation. St. Paul, MN: West Publishing.

External links[edit]


Original courtesy of Wikipedia: http://en.wikipedia.org/wiki/Procedural_law — Please support Wikipedia.
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51 news items

 
Lexology (registration)
Mon, 07 Jul 2014 00:19:25 -0700

The Amendments leave the provisions regulating anti-competitive agreements and abuse of dominance essentially untouched, and relate mainly to procedural law. This article provides a short overview of some of the notable changes, including with regard ...
 
Lexology (registration)
Fri, 11 Jul 2014 15:41:15 -0700

The court cited a number of Michigan state and Federal cases to conclude that the contractual choice of law provision only incorporated Rhode Island substantive law, not Rhode Island procedural law. As a result, issues of procedural law would continue ...
 
The Nation
Sat, 19 Jul 2014 10:03:45 -0700

The parading of criminal suspects at press conferences and getting them to stage re-enactments by the police are needless as per procedural law and are a human rights violation, a senior Lawyers Council of Thailand official said. Jessada Anujaree also ...
 
Vox
Wed, 16 Jul 2014 14:40:15 -0700

... has since 2006 been prevented from carrying out any executions due to a federal ruling that its lethal injection protocol violated the 8th Amendment and, after the protocol was amended, a state ruling that the new protocol violated California ...
 
DeHavilland (press release) (subscription)
Mon, 21 Jul 2014 07:48:45 -0700

Up until the end of last year, we think over 100,000 arrest warrants had been issued, which shows that it is now part of the armoury of criminal enforcement and criminal procedural law in the European Union. But we do acknowledge that a lot of work has ...
 
Lexology (registration)
Thu, 17 Jul 2014 08:56:15 -0700

... the RF SC Judicial Panel will be able to reverse or change the court order of a lower instance court only if there have been material violations of the substantive and/or procedural law rules, which impacted the outcome of the proceedings and where ...
 
Lexology (registration)
Tue, 08 Jul 2014 04:26:15 -0700

The Court of Cassation recognised that the New York Convention "did not stipulate any provisions regarding the form of the award and that foreign awards are subject to Qatari procedural law only at enforcement phase and therefore only to the provisions ...
 
The Star Online
Wed, 16 Jul 2014 15:52:30 -0700

However, he said the issue still exists on whether Sosma was the right procedural law and objections could be raised at any stage in the trial. “Thus, we find the Court of Appeal's decision is not binding,” he said. In doing so, Justice Arifin allowed ...
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