What is the difference between substantive and procedural law? Look at the procedural and substantive law definitions and explore illustrative examples.
Updated: 11/18/2021
Substantive Law vs. Procedural Law? Definitions and Differences
Substantive Law vs. Procedural Law!!!
Procedural law and substantive law are used in different ways, and for different reasons. Whether the matter is civil or criminal, in state or in federal court, both kinds of law will be involved. The difference between substantive and procedural law is reasonably easy to state. Substantive law is the law that creates the right being claimed, or the law under which charges are brought. Procedural law sets out when, where and how the claims are made and the how the case is handled before the court. In some cases, the correct - or faulty - use of procedural and substantive law can make the difference between wealth and poverty, or between freedom and penal servitude. So being able to identify each type of law can be crucially important.
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What is Substantive Law? - Substantive Law Definition!!
Substantive law is the law that governs the actual original rights that were violated, the actual crime that was committed, or the actual duty that was owed - the actual substance of the law. For example, the state and federal Constitutions create and describe the substance of a citizen's civil rights. Civil substantive laws provide the substance of a very broad range of law, providing definitions and regulations on topics ranging from trespass, to child custody, and many other areas of law. Criminal substantive laws include those that define and prohibit murder, arson, theft and other crimes. They set out the actual substance of the charges that can be brought for any specific crime.
What is Procedural Law? - Procedural Law Definition!!
Procedural law is the law establishing the rules of the courts of law, setting forth the steps that must be followed to prosecute or defend your case. Like substantive law, procedural law is used in both civil and criminal cases, at the local, state and federal levels. Substantive law is the substance of what an attorney will argue to the judge and jury. Procedural laws set forth the manner and methods she will use to get those substantive laws in front of the court.
While most substantive law is set out in statutes, procedural laws are usually set out in Rules, like the Rules of Civil Procedure, or the Rules of Criminal Procedure. These can be federal rules, or they may be state laws that are specific to each state. Whether state or federal, civil or criminal, these rules include matters relating to the court's jurisdiction to hear the case, the standing of the parties to bring the lawsuit, and the correct venue where the case should be heard. There are also certain basic rules that are required by the due process clause of the United States Constitution. These include:
the right to notice of the suit or charges;
the right to be personally served process paperwork;
the right to be heard by an impartial tribunal;
The right to a speedy trial;
and many other rights and protections. It is extremely important to be aware of these protections, and of the procedural rules in any court matter. A mistake in procedure might get the case dismissed.
Substantive and Procedural Law in Criminal and Civil Cases!!
While every case will have elements of both substantive and procedural law, these different kinds of law will have different implications depending on whether the matter is civil or criminal. When someone is charged with a crime, the law offers substantial protections for the defendant which will not necessarily apply in a civil matter.
History of Substantive and Procedural Law!!
In the United States, the substantive law has been largely adapted from the English Common Law, but the procedural laws have developed from the rights stated in the Constitution.
Criminal Cases!
As a substantive law example, suppose that Sally has a fight with her neighbor Sue; she slaps Sue and kills her. When the police arrive, Sally admits to slapping Sue, but says she didn't mean to kill her. The police take Sally to jail, and eventually she stands trial for the killing. The District Attorney, preparing for Sally's prosecution, will look to the substantive law to build his case. The substantive law will contain the definitions for murder, manslaughter, and other kinds of killing. The substantive law will explain exactly what action a person must take for a specific crime to be committed. Sometimes the substantive law will specify the state of mind that a person must have to commit that crime.
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Civil Cases!
In the same way, the substantive law defines what claims can be raised in a civil case. Suppose, instead of killing Sue, Sally's slap broke Sue's nose. Sue calls the police and files charges against Sally for assault and battery. She also has medical expenses, and files a lawsuit. This time, the District Attorney looks at the substantive criminal law on assault and battery, and decides that Sally assaulted and battered Sue; he brings criminal charges against Sally. Sally is eventually convicted of assault and battery against Sue.
Sue's lawsuit is also going forward. When Sally is convicted criminally, Sue's lawyer knows she can provide the civil jury with jury instructions that say Sally is guilty of civil assault and battery because she is guilty of criminal assault and battery. Thus, the criminal substantive law can have a significant relationship with the substantive civil law.
As a procedural law example, Sue seems likely to win her lawsuit. But Sally's lawyer notices a problem. Sally was not served process on the lawsuit until well after the time stated in the Rule. The lawyer brings this to the court's attention at the parties' preliminary hearing, and moves for dismissal of the lawsuit and all its claims. The judge agrees, and Sue's lawsuit is dismissed on due process grounds, for failing to comply with the procedural law.
Whether the case is criminal or civil, the ultimate goal is to convince the judge and the jury. Both substantive and procedural laws are necessary to accomplish that goal.
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Lesson Summary!!!
There are significant differences between substantive and procedural laws. These laws were created for different purposes, used in different ways, and may have substantially different impacts on a case. Substantive law is the law that creates the right being claimed or the crime being prosecuted. Procedural law is the law that specifies how the case is to be filed and handled in court.
Substantive and procedural laws are created by different means; while substantive laws are usually carried down in some form from the English Common Law, procedural laws in the United States have their roots in the Constitution. Both types of law apply in some form to every case; however, the procedural rules can have greater impacts in criminal cases, because the procedural rules ensure the protection of the rights stated in the Constitution. Both of these types of law are critically important in successful litigation.
Lesson Summary!!!
There are significant differences between substantive and procedural laws. These laws were created for different purposes, used in different ways, and may have substantially different impacts on a case. Substantive law is the law that creates the right being claimed or the crime being prosecuted. Procedural law is the law that specifies how the case is to be filed and handled in court.
Substantive and procedural laws are created by different means; while substantive laws are usually carried down in some form from the English Common Law, procedural laws in the United States have their roots in the Constitution. Both types of law apply in some form to every case; however, the procedural rules can have greater impacts in criminal cases, because the procedural rules ensure the protection of the rights stated in the Constitution. Both of these types of law are critically important in successful litigation.
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Prompts About Substantive Law and Procedural Law:
Study Prompt 1:
Make a set of flashcards that includes the definitions of all of the key words from the lesson. Write the word on one side of the flashcard and its definition on the other side. Then, use the flashcards to quiz yourself or a classmate.
Tip: Even though "tort" was not a bolded key word from the lesson, you may find it useful to include it.
Essay Prompt 1:
Write an essay of several paragraphs in which you define substantive law and then provide an example of what it is and how it functions. Your example could be from civil law or criminal law, or you could provide one example of each.
Example: Jason vandalized a neighbor's car. Substantive law states that this is a crime that is punishable by a fine and/or a jail sentence.
Essay Prompt 2:
Write an essay of several paragraphs that defines procedural law and gives an example of what it is and how it works. Your example could be from a criminal case or a tort case.
Example: For Bonnie's trial for theft, procedural law states that the prosecutor had one week from the time of her arrest to issue formal charges.
Essay Prompt 3:
In several paragraphs, write an essay that explains the role of due process in procedural law.
Tip: Be sure to consider the role of the 14th Amendment.
Graphic Organizer Prompt 1:
Make a chart or other type of graphic organizer that explains how substantive law and procedural law work together in a criminal or civil case.
Example: Think of a specific example of a case, such as a sexual harassment case involving an employee and his or her boss, to depict how substantive and procedural law would work together in such a case.
What is procedural law and substantive law?
Procedural law is the law that sets forth the steps and requirements to place a litigation before the courts, and through trial.
Substantive law is the law that sets out the actual right being claimed, or the actual crime to be prosecuted.
What is an example of a procedural law?
Procedural laws set forth the rules for moving a case through the courts. They can include rules relating to the venue of the case or the jurisdiction of the court. Procedural laws also involve the Constitutional requirements of Notice and Service of Process.
Why do we have procedural law?
Procedural law is necessary for the smooth progression of a case through the courts; it sets out the steps to be taken in a litigation. Procedural law in the United States is also closely linked to the rights stated in the Constitution, such as the right to Notice of the charges, and the right to personal service of process. Procedural laws protect these rights.
What is substantive law example?
Substantive law is the law related to the actual claims or wrongs being pursued in the litigation. There are both civil and criminal substantive laws. An example of a criminal substantive law would be the statutes that set out the elements for crimes like murder, arson or theft. An example of a civil substantive law would be statutes setting out elements of wrongs such as trespass or defamation.
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Substantive Law vs. Procedural Law | Differences & Examples
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