Different Between Substantive Law and Law Of Procedure
1. Introduction:
Statute law is either substantive or
procedural. Substantive law confers the rights procedural law is the mode by
which a legal right is enforced. The distinction between substantive and
procedural law is drawn by every legal system. The distinction between these
two is very important as every lawyer has to get it touch with them in their
daily routine.
2. Definition of Law of Procedure:
According to Salmond: “The
law of procedure may be defined as that branch of law which governs the process
of litigation. It is the law of actions and includes all legal proceedings
whether civil or criminal.
Criticism:
Salmond has ignored that less spectacular and unattractive said of
procedural law, which goes under the name of “conveyancing” such as drawing
sale deeds, partnership deeds, cheques and other bills of exchange.
3. Elements of Procedural Law:
Following are the elements of
judicial procedure or procedural law.
(a) Summons:
This is to give opportunity to all the parties interested, to
present themselves before the Court and making the case heard.
(b) Pleading:
Pleadings bring to light the matters in-issue between the parties.
In civil law, it consists of plaint, written statement and replication. In
criminal law, it includes complaint and written statement.
(c) Proof:
Proof is the process by which the parties supply the Court with
data necessary for the decision of the case.
(d) Judgment:
A judgment is the decision of the Court. It may be in the form of
decree or order.
(e) Execution:
It is the use of the physical force of the state in enforcing the
judgment when voluntary submission to it is withheld.
4. Definition of Substantive Law:
According to Salmond Substantive law relates not to the process of litigation
but to its process and subject-matter.
5. Distinction between Substantive and Procedural Law:
(a) As
to Purpose:
Substantive law is concerned with the ends which the
administration of justice seeks.
Procedural law deals with the means and
instruments by which those ends can be achieved.
(b) Regulation:
Substantive law determines the conduct and relation of litigants
in respect of the matters litigated.
(c) Subject
matter:
Substantive law regulates the affairs controlled by judicial
proceedings.
Procedural law regulates the conduct of
affairs in the judicial proceedings.
(d) As
to facts constitute a wrong:
What facts constitute a wrong is determined by substantive law?
Want facts constitute proof of a wrong is a question of procedure.
(e) Nature:
Substantive law deals with the ends which the administration of
justice seeks.
Procedural law deals with the means and instruments by which the
administrations of justice achieve.
(f) As
to connection:
Substantive law is related and connected with public at large.
Procedural law is connected with the parties before the Court.
(g) As
to abolition of Punishments:
The abolition of capital punishment is an alteration of the
substantive law.
The abolition of imprisonment for debt merely an alteration in the
law of procedure as the imprisonment for debt is merely an instrument to
enforce payment.
(h) Scope:
Substantive law relates to matters outside the Court.
Procedural law deals with matters inside Courts.
(i) Appearance:
Substantive law provides substance of law in the shape of statute.
(j) Branch
of law:
Procedural law is that branch of the law which governs the process
of litigation.
(k) Supremacy:
Substantive law is substance in nature.
Procedural law is subordinate in nature.
7.Conclusion:
To conclude, I can say, that the
substantive law which defines our rights and duties is of course important to
all of us, but unless the adjective law of procedure is a working machine,
constantly these obligations in terms of Court orders and actual execution, the
substantive law might as well not exist.
thnks
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