Substantive law and Procedural law PDF

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Difference between Substantive law and Procedural law Synopsis (1).Introduction (2).Understanding of ss law and Pro law (3).Pro law vis a vis ss law - juristic approach (4).Meaning and nature of ss law (5).Meaning and nature of Procedural law (6).Substantative and procedural laws – retrospective or prospective (7).Equivalent- procedural and substantive rules/principles (8).Comparison between Substantive Law and Procedural Law (9).Some examples illustrating distinction between Substantive Law and Procedural Law (10).Case laws (11).Write True/False.(All true) (12).Do you know (13).FAQ (14).Conclusion (15).References (1).Introduction 1).The ss\Pro laws are the two important branches of Law. 2).The terms “ss” and “Adjective” seem to have been invented by Bentham in 1843. 3).Austin criticized the distinction’ saying “it cannot be made the basis of a just division.”. 4).Holland in his ‘Treatise on Jurisprudence’ popularized the terms “ss” and “Adjective” and that have been accepted by writers in general. 5).Here we will discuss ‘Juristic Approach’ towards diff b/w these 2 branches of law as 2 laws are important\1 could not be effective in absence of other. 6).Though there may be some overlapping between these two branches of Law. 7).It is not an easy task to state with precision the exact nature of the distinction between the two. 8).But it can be said that without laws of a ss Nature, Pro law would not have much to regulate 9).In absence of Pro law, fair and consistent application of ss law is not possible. (2).Understanding of ss law and Pro law 1).The law governing machinery of courts\methods by which both state\individual(group,incorporated/not) enforce their rights in several courts. 2).Pro law prescribes #).the means of enforcing rights or #).providing redress of wrongs and #).comprises rules about jurisdiction, pleading\practice, evidence, appeal, execution of judgments, representation of counsel, costs,\other matters. 3).Pro law is commonly contrasted with ss law, which constitutes great body of law\defines\regulates legal rights\duties. Thus ss law would describe how two people might enter into a contract where Pro law would explain how someone alleging a breach of contract might seek the courts’ help in enforcing the agreement. 4).SS law refers to how facts of each case are handled and how to penalize or ascertain damages in each case. Whereas, Pro law refers to the different processes through which a case proceeds. 5).SS laws define the legal relationship between different individuals, or between individuals and the State. Whereas,Pro laws define the rules with which SS laws may be enforced. 6).Illustration: The question of whether an individual is competent to enter into a contract is dealt under SS Law, whereas the question of the time within which one party may sue another is dealt under Pro Law. 7).SS part of law establishes the rights, duties and liabilities of individuals. Whereas,Pro law establishes the methods, practices and ways in which a court proceeding takes place. 8).SS law consists of written statutory rules passed by legislature that govern how people behave,also define our rights\responsibilities as ctz,

on the other hand, Pro law governs the mechanics of how a legal case flows, including steps and processes of a case, it adheres to due process. 9).For instance determining what facts constitute a crime is a matter of SS law whereas determining which Court has the jurisdiction to try the matter is a matter of Pro law. 10).SS law refers to body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a SS right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. 11).Pro law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them… Right of appeal may be a SS right but the procedure for filing the appeal including the period of limitation cannot be called a SS right; and aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. (3).Pro law vis a vis ss law - juristic approach A).As per Bentham 1).The ‘Substance Law’ and ‘Pro law’ can be clearly and sharply separated. 2).On a former occasion, laws prescribing,the course of procedure have been characterized by the term Adjective Laws 3).This is in contradiction to those other laws 4).The execution of Adj laws they have in view, and which for this same purpose have been characterized by correspondent opposite term, ss laws. B).As per Holland 1).In his book ‘Treatise on Jurisprudence’ has stated 2).Law – defines the rights which it will aid, and specifies the way in which it will aid them. 3).So far as it defines, thereby creating, ‘ss law.’ 4).So far as it provides a method of aiding and protecting, it is ‘Adjective Law’, or Procedure.” C).As per Salmond - source-1 (i).Pro Law 1).Pro law may be defined as that branch of the law which governs the process of litigation. 2).Pro law includes all legal proceedings whether civil or criminal. 3).Pro law primarily deals with the means and instruments by which those ends can be achieved. 4).Pro law deals completely with matters inside courts. (ii).SS Law 1).SS law, it relates not to the process of litigation but to its purpose and subject matter. 2).SS law deals with the ends which the administration of justice seeks 3).SS law relates to matters outside the Courts (iii).Other Concerns 1).In theory the two laws are sharply separated, but in practical many procedural rules are wholly/substantially equivalent to rules of ss law. 2).If one takes view of fact that the administration of justice in its typical form consist in application of remedies to violations of rights 3).This may mean that ss law is that which defines the rights while Pro law determines the remedies. 4).But this diff b/w ‘jus and remedium’ (right and remedy) is inadmissible as there are many rights (in wide sense) which belong to sphere of procedure 5).For example, a right of appeal, a right to give evidence on one’s own behalf, a right to interrogate the other party, and so on. 6).The ss part of Criminal Law deals, not with crimes alone, but with punishments also. 7).So, in Cvl Law, rules as to measure of damages pertain to ss law, no less than those declaring what ‘damage’ is actionable.

8).Thus, to define procedure as concerned not with rights, but with remedies, is to confront the ‘remedy’ with the process by which it is made available. D).As per Another juristic view 1).It is that there is no distinction between Substance and Procedure. 2).The distinction between ss and Pro law is artificial and illusory. 3).In essence, there is none. 4).The remedy and predetermined machinery, so far as litigant has a recognized claim to use it, are, legally speaking, part of right itself. E).As per Professor Cook In, “Substance” and “Procedure” in the Conflict of Laws had arrived at a tri- chotomy. There are: 1).substance 2).procedure 3).apenumbra, a twilight zone, a no-man’s land, which may be substance or procedure conditioned on the end to be attained. (4).Meaning and nature of ss law A).ss Law 1).The SS Laws are basically derived #).from Common, Statutory, Constitution and #).from Principles found in judicial decisions following legal precedents to cases with similar facts and situations. 2).With the passage of time and creation of new Statutes, the volume of ss law has increased. 3).For Example:- Penal Law, Law of Contract, Law of Property, Specific Relief Act, etc are ss law. 4).It can be concluded out from writings of various professional texts that ss Law deals with legal relationship b/w subjects or subject and State. 5).ss law is a Statutory Law that #).defines and determines the rights and obligations of the citizens to be protected by law; #).defines the crime or wrong and also their remedies; #).determines the facts that constitute a wrong -i.e. the subject-matter of litigation in the context of administration of justice. 6).The ss law, defines ‘remedy’ and right; includes all categories of Public and pvt Law and also includes both ss Cvl and Criminal Law. 7).In short, it can be said that ss law is a Statutory Law that deals with relationship b/w people and State. 8).Therefore, ss law defines the rights and the duties of the people. 9).ss law deals with the structure and facts of the case; defines the rights and duties of the citizens and can not be applied in non-legal contexts B).ss Cvl Law 1).CLaw includes any pvt wrong, Tort, which unfairly causes others to suffer loss/harm resulting in legal liability 4 person who commits tortious act 1).ss Law defines to charge the ‘Tort’. 1).ss Cvl Law also includes the Law of Contract- defines what is essential elements required for formation of contract; real property. 1).Indian Succession Act, 1925 deals with #).ss Law of testamentary succession in regard to persons other than Muslims #).ss Law of intestate succession in regard to persons other than Hindu and Muslims in India. 1).Other Acts that provides for ss Cvl Law in India are #).Indian Contract Act, 1872; #).Transfer of Property Act 1882; #).Specific Relief Act; #).Indian Trust Act, 1882. C).ss Criminal Law #).The Indian Penal Code (IPC) in India defines various penal offences and lists the elements that must be proved to convict a person of a crime.

#).It also provides for punishment applicable to these offences. #).For example ss Criminal Law defines what constitutes ‘Murder’, ‘Robbery’, ‘Rape’, ‘Assault’ etc. (5).Meaning and nature of Procedural law A).Pro Law 1).Pro law (or Adjective Law) deals with the enforcement of law that is guided and regulated by the practice, procedure and machinery. 2).This law is very important in administration of justice. 3).Pro law functions as the means by which society implements its substantive goals. 4).Pro law is derived frm const-nal law, Statutes enacted by legislature, law enforcement agencies publicize written regulations for their employees, 5).which may not have force of law but their violation may result in internal sanctions; and rules and procedural guidelines laid down by SC. B).According to Holland 1).Adjective law, though concerns primarily with rights and acts of pvt litigants 2).Adjective law touches closely on topics, such as the organization of Courts and the duties of judges and sheriffs, which belong to public law. 3).It comprises of #).jurisdiction (in the conflicts sense); #).jurisdiction (domestic sense) ; #).the action, including summons, pleadings, trial(including evidence); #).judgment; #).appeal; #).execution. 4).Pro law is that law which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a Suit. 5).examples of Pro law in India. #).The Code of Cvl Procedure, 1908; #).Code of Criminal Procedure, 1973; #).Indian Evidence Act, 1872; #).Limitation Act, 1963; #).The Court Fees Act 1870; #).The Suits Valuation Act, 1887 6).The Pro law can be said, is a law that: #).Lays down the rules with the help of which law is enforced. #).Relates to process of litigation and determines- what facts constitute proof of a ‘wrong’ or ‘Tort’. #).In context of administration of justice -the law of procedure defines the modes and conditions of the application of remedies to violated rights. #).Are the adjective rules, prescribing the mode in which the State, as such a personality, may sue or be sued. #).Provides 4 mechanism 4: obtaining evidence by pc\judges, conduct of searches, arrests, bail,\presentation of evidence at trial\process of sentencing #).It is the law of action that includes all legal proceedings, Cvl or criminal. C).Law of Cvl Pro 1).Cvl Pro law consists of the rules and standards which courts follows while conduct Cvl trials. 2).These rules govern #).how a Cvl suit or case may be commenced, #).what kind of service of process (if any) is required, #).the types of pleadings or statements of case, #).motions or applications, and orders allowed in Cvl cases, #).the timing and manner of depositions and discovery or disclosure, #).the conduct of trials, #).the process for judgment, #).various available remedies, and #).how the courts and clerks must function.

3).Cvl actions concern with judicial resolution of claims by pvt individual/group, companies/organisations against another 4).In addition, govts or their subdivisions or agencies may also be parties to Cvl actions. 5).In India Code of Cvl Procedure, 1908 consolidates and amend the laws relating to the procedure of the Courts of Cvl Judicature. D).Law of Criminal Procedure 1).Law relating to criminal, Procedure provides or regulates the steps by which one that violate a criminal Statute is punished. 2).Procedural Criminal Law can be divided into two parts 3).Thry are investigatory and adjudicatory stages. 4).Investigatory phase #).In this phase,investigation primarily consists of ascertaining of facts\circumstances of case by police officers\arrest of suspect of criminal offence. 5).Adjudicatory phase #).This phase begins when with the trial of suspect for the alleged criminal conduct in the court of Law. 6).In India Criminal Procedure Code,provides the procedure of getting the penal offences prosecuted and punished by the criminal courts. 7).It also estb details regarding arrest,investigation,bail,jurisdiction,appeals,\revisions\compounding of offence etc with regards to various offences (6).Substantive and procedural laws – retrospective or prospective 1).In general, all Procedural Laws are retrospective unless a legislature specifies so. 2). #).In this case,Court declared that amendments relating to procedure operated retrospectively subject to exception #).The exception is that... #).whatever be procedure which was correctly adopted\proceedings concluded under old law, same cannot be reopened for purpose of applying new procedure 3). #).In this case,the Court summed up the legal position with regard to the Procedural Law being retrospective in its operation #).and the right of a litigant to claim that he/she be tried by a particular Court, in the following words: (i).A Statute which affects substantive rights #).It is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, #).whereas a statute which merely affects procedure, #).unless such a construction is textually impossible, #).is presumed to be retrospective in its application, #).should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii).A Statute which is procedural in nature #).Law relating to form and limitation is procedural in nature #).whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii).Right of litigant #).Every litigant has a vested right in Substantive #).Law but no such right exists in Procedural Law. (iv).A Procedural Statute shall not applied for retrospectively #).A Procedural Statute should not generally speaking be applied retrospectively #).where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v).A Statute which not only changes the procedure #).But also creates new rights and liabilities shall be construed to be prospective in operation, #).unless otherwise provided, either expressly or by necessary implication. 4). #).In this case,Court relied upon observations made by Justice Benjamin N.C in his famous compilation of lectures "The Nature of Judicial Process" #).As per the observations, in the vast majority of cases, a judgment would be retrospective.

#).It is only where the hardships are too great that retrospective operation is withheld. (7).Equivalent- procedural and substantive rules/principles According to Salmond, 1).In theoritical, although the difference between Substantive Law and Procedural Law is defined clearly, 2).In practical, there are many rules of procedure are wholly or substantially equivalent to rules of Substantive Law 3).Examples of such a equivalent A).Exclusive evidential fact 1).An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. 2).Example #).Rule of Evidence that a Contract can be proved only by writing corresponds equivalent to #).Rule of Substantive Law that a Contract is void unless reduced to writing B).Conclusive evidential fact 1).Conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it. 2).Example-1 #).A child under the age of eight years is incapable of criminal intention is a rule of evidence, #).but differs only in form from the substantive rule that no child under that age is punishable for a crime. 3).Example-2 #).Acts of servant done about his master’s biz are done with his master’s authority is a conclusive presumption of law, and pertains to procedure; #).but it is the forerunner and equivalent of our modern substantive law of employer’s liability. 4).Example-3 #).A ‘Bond’ (an admission of indebtedness under seal) was originally operative as being conclusive proof of existence of debt so acknowledged; #).but it is now itself creative of a debt; for it has passed from the domain of procedure into that of Substantive Law. C).The limitation of actions #).The limitation of actions is the procedural equivalent of the prescription of rights. #).The former is the operation of time in severing the bond between right and remedy; #).the latter is the operation of time in destroying the right. (8).Comparison between Substantive Law and Procedural Law S# 1

Substantive law The Substantive law defines and determines the obligations and rights of people and legal entities (or) It establishes rights, obligations and duties of individuals with other individuals or individuals with the State.

Procedural Law Procedural law lays down the method of aiding, the steps and procedures for enforcement of Law- Civil and Criminal. (or) It lays down the means and methods through which substantive law is enforced.

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When a particular law defines rights or crimes or any status, it is called Substantive Law. It defines how a crime or tort will be charged and how the evidence and case facts will be presented and handled.EX: The definition of ‘manslaughter’ is substantive

The laws that determine how the rights of the plaintiff and defendant will be protected and enforced throughout the course of the case Procedural Laws. It includes procedure, pleading, and evidence.Ex: The right to a speedy trial for a person accused of ‘manslaughter’ is procedural.

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A Substantive Law also provides for Prohibitions administered by courts which behaviors are to be allowed and which are prohibited- such as law providing prohibition against murder or the sale of narcotics

Procedural Laws provides rules to determine, how the Substantive Laws are to be administered, enforced, changed, and used in the mediation of disputes -such as filing charges or presenting evidence in court.

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It has independent powers to decide the fate of each case

It doesn’t have any independent powers to decide the fate of each case.

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It cannot be applied in non-legal contexts.

It can be applied in both legal and non-legal contexts.

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It governs the rights and duties of individuals

It governs the stages in which a civil proceeding proceeds

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It doesn’t exclusively deal with proceedings inside a Court.

It deals with the happenings of a Court.

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It is regulated by Acts of Parliament or government implementation.

It is regulated by Statutory laws

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SS law refers to how facts of each case are handled and how to penalize or ascertain damages in each case

Pro law refers to the different processes through which a case proceeds

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SS laws define the legal relationship between different individuals, or between individuals and the State

Pro laws d...