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Substantive Law vs. Procedural Law: Definitions and Differences

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  • 0:06 Substantive Law Explained
  • 1:47 Procedural Law Explained
  • 2:56 Procedural Law Process
  • 4:26 Lesson Summary
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Lesson Transcript
Instructor: Kat Kadian-Baumeyer

Kat has a Master of Science in Organizational Leadership and Management and teaches Business courses.

Substantive law and procedural law work together to ensure that in a criminal or civil case, the appropriate laws are applied and the proper procedures are followed to bring a case to trial. In this lesson, we'll discuss the differences between the two and how they relate to the legal system as a whole.

Substantive Law Explained

Substantive law consists of written statutory rules passed by legislature that govern how people behave. These rules, or laws, define crimes and set forth punishment. They also define our rights and responsibilities as citizens. There are elements of substantive law in both criminal and civil law.

Civil law differs from criminal law in that it applies to interactions between citizens. Rather than dealing with crime, civil law deals with tort, or actions that aren't necessarily illegal but can be proven to be damaging in some way. For example, if you sue a neighbor for cutting down a tree and letting it land on your house, that would be a civil case dealing with tort rather than a criminal case dealing with crime.

Substantive law is used to determine whether a crime or tort has been committed, define what charges may apply and decide whether the evidence supports the charges. Let's say a person is caught drunk driving. Substantive law says that it is a crime punishable by a term in prison.

The substance of charges, or elements of a crime or tort, must be carefully evaluated to determine whether a crime or tort really exists. In other words, specific facts need to be proven true in order to convict somebody of a crime or a tort.

In the case of a person caught driving while intoxicated, a few things would have to be proven:

  • The person was driving the vehicle
  • The person acted in ways that gave the police a reason to believe he or she was intoxicated
  • The person was over the legal limit per a field sobriety and/or Breathalyzer test

Once these things are proven, the person can be taken into custody. Next, procedural law will determine the steps the case must take.

Procedural Law Explained

Procedural law governs the mechanics of how a legal case flows, including steps to process a case. Procedural law adheres to due process, which is a right granted to U.S. citizens by the 14th Amendment.

Due process refers to the legal rights owed to a person in criminal and civil actions. It is one of our 14th Amendment rights and guarantees the right to life, liberty and the pursuit of happiness.

In the case of an arrest, the 14th Amendment applies to the degree that one can be charged with a crime but still has rights to a speedy, fair and impartial trial. Charges must be filed with the court within a specific time frame. The exact amount of time varies by jurisdiction, but 72 hours is usually the maximum time a citizen can be held without being formally charged with a crime. In some places, though, the maximum is 48 hours.

For example, in our drunk driving case, substantive law proved that the person was drunk while driving a vehicle. The police were within their rights to make the arrest, but due process requires that the person must be aware of all charges within 72 hours of his or her arrest.

Procedural Law Process

While substantive law maps out the charges, procedural law is the process a case will move through from arrest to conviction. This is a hypothetical set of procedural steps a case could move through:

  • Arrest is made based on probable cause (a reasonable amount of suspicion)
  • The prosecutor files charges with the court
  • Legal counsel is appointed for or hired by the arrestee
  • Bond, which is an amount of money set by a judge that allows the arrestee to leave jail, is set. Bond also ensures that the arrestee will return for all court dates
  • Notice to appear in court is generated and served
  • A plea or an answer to the charges is made or a trial begins. Possible options for pleas include guilty, not guilty and no contest.

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