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MONDAY, FEBRUARY 01, 2010

The basics: procedural vs. substantive law

Several readers have expressed interest in learning some law. I highly encourage
this. Knowledge of legal basics is not only of great practical use in modern
society, it is essential for understanding politics and history, regardless of
whether you have any interest in becoming a lawyer. I will thus be making a
number of posts over the next few months discussing a variety of basic legal
concepts. These may include subject matter jurisdiction, personal jurisdiction,
the tort of trespass, contract formation, and a variety of other basic legal ideas.
Today I write about the crucial distinction between procedural and substantive
law.

Procedural law is about how the law gets passed and enforced: who has
jurisdiction over whom, and what coercive processes they may use to bring
suspected lawbreakers to justice. The famous Miranda lines "you have the right to
remain silent...." generally uttered in the U.S. when you are arrested are a species
of U.S. federal procedural law. Procedure usually starts in a given case with a
great deal of uncertainty and tries to reduce that uncertainty by fairly gathering
and evaluating evidence, interpreting the law, and applying those facts to the law
to reach legal conclusions.

Substantive law involves every law that is not procedural: it is what we normally
discuss when talking about law or politics, namely the laws defining and
restricting rights and duties for their own sake, not primarily for the sake of
enforcing other laws.
Thus for example modern property, contract, tort, family, and criminal law are
substantive legal areas, as are environmental, workplace, traffic, and most other
regulations. On the other hand, the laws defining who may sue whom and where,
and what does and does not constitute proper arrest, interrogation, and search of
criminal suspects, are procedural laws. Historically, just to confuse things a bit,
property rights sometimes included rights of coercive procedure, for example the
lord who had jurisdiction over his unfree tenants. This made property law in
some cases part of the procedural law as well as a substantive law of economic
property.

Computer protocols work in layers: wires carry bits of information, and bits of
information carry text, pictures, and so on. The raw bits of information are a
lower level protocol that carries the text and pictures in a higher level protocol.
Language works like this too: at the lowest level, paper has letters written on it.
Letters are a lower-level protocol that carries words in a higher level protocol.
You can think of the distinction between substantive and procedural law in the
same way: the procedural layer is a lower layer that "carries" the substantive law
by specifying how it is to be enforced.

We can also think of government and government-like entities as lower levels of

the legal protocol. Indeed, it is very useful to study political structures alongside
procedural law. Think of coercive entities like police and courts as the paper and
pencil, procedural law as the letters, and substantive law as the words and
sentences we want to make out of these raw materials.

POSTED BY NICK SZABO AT 11:58 PM

8 COMMENTS:

Ivan Nilin Navi said...

Great to see you blogging again. I will follow this series with great interest.
Will you also continue your history of Rome?

6:23 PM
nick said...

Thanks. I'll be doing some Roman stuff as well.

2:20 AM

Alrenous said...

When I look, I naturally want to make a distinction between procedures

dealing directly with the suspect - Miranda rights, detainment and so on -
and procedures for dealing with evidence gathering and argumentation.

Is there a word for this further distinction?

Why isn't the who and whom of civil suits defined substantively? (I think I
get the 'where' bit.)

9:03 AM

nick said...

Alrenous, I agree that's a good distinction. I don't know of a single word or

official phrase for it. Note that both can involve coercion (e.g. subpoena of
witnesses). Although coercion of third parties, unlike coercion of suspects,
leaves a bad taste in my mouth, it's a normal and necessary part of the
system.

On your second question, by who and whom do you just mean plaintiff and
defendant? The area called "personal jurisdiction" is about who and whom
can be plaintiff or defendant in what court(s), although it's usually based
on where the plaintiff and defendant were or are and where the court(s)
are. In the Middle Ages it was more common to base it on status, e.g.
merchant fair courts had personal jurisdiction over people who had the
status of "merchants" and attended the fair, even if the act in dispute
occurred outside the fair. Status can still sometimes be a distinction e.g.
with military court jurisdiction over members of the military. But it's
 mostly based on whose territory the act occurred in or that you are in
when the suit is brought. Personal jurisdiction is a big topic in the Civil
Procedure course. I discuss it here and here.

3:35 PM

Alrenous said...

If there isn't a word, I get to make one up. Nifty.

7:22 PM

TGGP said...

Surprised there was no mention of "substantive due process".

10:22 AM

nick said...

Lawyers love a good oxymoron. :-) "Substantive due process" can be taken
as referring to substantive areas of law that should be outside of anybody's
jurisdiction, i.e. that nobody has jurisdiction over. The issue of
determining whether a court has jurisdiction over a certain substantive
area of law is called subject matter jurisdiction -- a future "basics" post. It
violates a procedural law (subject matter jurisdiction) to enforce the law in
certain substantive areas. So the phrase actually makes sense. I recount
some of the history here.

1:03 PM

Henrietta said...

@Alrenous

I'm not sure there is a distinction to be made when it comes to Due

Process. Procedure is the artifice we've created for the benefit of the
suspect and the regular old citizens. The procedural standards for dealing
 with evidence and litigation exist to protect against the arbitrary treatment
of the individual. It's not the evidence that feels violated if it gets illegally
seized - it's the person who owns the evidence.

10:49 PM

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NICK SZABO
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• Definitions of substantive law on the Web:

The body of law that creates, defines and regulates right. Compare with
procedural law which prescribes the manner to enforce rights or obtaining redress
for invasion of rights.
www.edgarsnyder.com/resources/terms/s.…

The law dealing with rights, duties and liabilities, as contrasted with procedural
law, which governs the technical aspects of enforcing civil or criminal laws.
www.utcourts.gov/resources/glossary.ht…

Statutory public law other than appropriation law, sometimes referred to as

authorizing legislation. Substantive law, usually couched in broad general terms,
authorizes the Executive Branch to carry out a program of work. Annual
determination of the amount of the work to be done, expressed in specific dollar
amounts, is usually embodied in appropriation law.
data2.itc.nps.gov/budget2/glossary.htm

That law which establishes rights and obligations, as distinguished from

procedural law, which is concerned with rules for establishing their judicial
enforcement. An easier way of looking at this is that "substantive law" is what
you sue someone for or over, and procedural law is the "nuts and bolts" of how
you would bring that suit.
members.aol.com/ronin48th/5hlsglos.htm

While procedural law sets the rules and methods for individuals to ensure their
legal rights, substantive law creates, defines and establishes the scope of those
rights.
www.attorneykennugent.com/library/s.ht…

Law which creates, defines, and regulates legal rights, as distinguished from
procedural law, which prescribes the procedures under which substantive law is
administered.
www5.aaos.org/oko/vb/online_pubs/profe…

The statutory or written law that governs rights and obligations of those who are
subject to it.
en.wikipedia.org/wiki/Substantive_law

Procedural law comprises the rules by which a court hears and determines what
happens in civil or criminal 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.

Lawyers distinguish procedural law from substantive law, which refers to the
actual claims and defenses whose validity is tested through the procedures of
procedural law.

Procedural Rights may also refer to those rights encompassing, general Civil and
Political rights including (but not exhaustively)

Rights to information
Rights to Justice
Rights to Participation

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)

Source(s):

http://en.wikipedia.org/wiki/Procedural_…

o 3 years ago
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• by Steve B

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Substantive law is the law of the land (state laws, federal laws, constitution, etc.).
Procedural law is the law of the forum that is hearing a lawsuit.

An example is a breach of contract claim. Whether or not the contract is breached

is determined by state law and would be substantive. The statute of limitations or
the way the lawsuit should be filed is procedural and can change depending on
which court the breach of contract claim is filed in (or if it is filed in arbitration,
the rules of the arbitration forum would be procedural also).

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• by David B

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It depends on whose definition you use, but, generally there's agreement that
procedural law encompasses things like the Federal Rules of Civil and Criminal
Procedure, statutes of limitations, etc., while substantive law includes torts,
criminal law, environmental law and the like.

Where it gets sticky is at topics like constitutional and civil rights law, which have
both procedural and substantive elements (though I'd call them substantive.)

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Substantive law is the statutory or written law that governs rights and obligations of
those who are subject to it. Substantive law defines the legal relationship of people with
other people or between them and the state. Substantive law stands in contrast to
procedural law, which comprises the rules by which a court hears and determines what
happens in civil or criminal proceedings. Procedural law deals with the method and
means by which substantive law is made and administered. The time allowed for one
party to sue another and the rules of law governing the process of the lawsuit are
examples of procedural laws. Substantive law defines crimes and punishments (in the
criminal law) as well as civil rights and responsibilities in civil law. It is codified in
legislated statutes or can be enacted through the initiative process.

Another way of summarizing the difference between substantive and procedural is as

follows: Substantive rules of law define rights and duties, while procedural rules of law
provide the machinery for enforcing those rights and duties. However, the way to this
clear differentiation between substantive law and, serving the substantive law, procedural
law has been long, since in the Roman civil procedure the actio included both substantive
and procedural elements (see procedural law). [1]