Procedural law
Encyclopedia
Procedural law or adjective law comprises the rules by which a court
hears and determines what happens in civil
lawsuit
, criminal
or administrative 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. The substantive law
, which refers to the actual claims and defenses whose validity is tested through the procedures of procedural law, is different than procedural law.
In context of procedural law; procedural rights
may also refer not exhaustively to rights to information, rights to justice, rights to participation which those rights encompassing, general Civil and Political rights. 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).
es aim to resolve many kinds of legal disputes, the legal procedures share some common features. All legal procedure, for example, is concerned with due process
. Absent very special conditions, a court
can not impose a penalty - civil
or criminal
- against an individual who has not received
notice
of a lawsuit
being brought against them, or who has not received a fair opportunity to present evidence for themselves.
The standardization for the means by which cases are brought, parties are informed, evidence is presented, and facts are determined is intended to maximize the fairness of any proceeding. Nevertheless, strict procedural rules have certain drawbacks. For example, they impose specific time limitations upon the parties that may either hasten or (more frequently) slow down the pace of proceedings. Furthermore, a party who is unfamiliar with procedural rules may run afoul of guidelines that have nothing to do with the merits of the case, and yet the failure to follow these guidelines may severely damage the party's chances. Procedural systems are constantly torn between arguments that judges should have greater discretion in order to avoid the rigidity of the rules, and arguments that judges should have less discretion in order to avoid an outcome based more on the personal preferences of the judge than on the law or the facts.
Legal procedure, in a larger sense, is also designed to effect the best distribution of judicial resources. For example, in most courts of general jurisdiction
in the United States
, criminal cases are given priority over civil cases, because criminal defendants stand to lose their freedom, and should therefore be accorded the first opportunity to have their case heard.
" is a concept available in various legal systems and languages. Similar to the English expressions are the Spanish words derecho adjectivo and derecho material or derecho sustancial/sustantivo, as well as the Portuguese terms for them, direito adjetivo and direito substantivo. Other ideas are behind the German expressions formelles Recht (or Prozeßrecht) and materielles Recht as well as the French droit formel/droit matériel, the Italian diritto formale/diritto material and the Swedish formell rätt/materiell rätt; all of which, taken literally, means "formal" and "material" law. The same opposition can be found in the Russian legal vocabulary, with материальное право for substantive law and процессуальное право for procedural.
In Germany the expressions formelles / materielles Recht have been developed in the 19th century, because only during such time the Roman actio has been split into procedural and substantive components.
had been of great influence. In ancient times the Roman civil procedure applied to many countries. One of the main issues of the procedure has been the actio (similar to the English word "act"). In the procedure of the legis actiones the actio included both procedural and substantive elements. Because during this procedure the Praetor
had granted, or denied, litigation by granting or denying, respectively, an actio. By granting the actio the praetor in the end has created claims. I.e. a procedural act caused substantive claims to exist. Such priority (procedure over substance) is contrary to what we think of the relationship nowadays. But it has not only been an issue of priority and whether the one serves the other. Since the actio had been composed of elements of procedure and substance it was difficult to separate both parts again.
Even the scientific handling of law, which has grown up during medieval times in the new universities in Italy (in particular in Bologna, Mantua) did not come to a full and clear separation. (The English system of "writs" in the middle age had a similar problem like the Roman tradition with the actio.)
In Germany the unity of procedure and substance in the actio definitely has been brought to an end at the codification of the Bürgerliches Gesetzbuch
(BGB) which came into force on January 1, 1900. The expression Anspruch (§ 194 of BGB) - meaning "claim" - has been "cleared" from procedural elements. And this was the time for "founding" the terms formelles / materielles Recht. However, after World War II
the expression formelles Recht obviously has been found "contaminated" and to a broad extent has been replaced by Prozeßrecht meaning narrowing the idea behind it to "law of litigation" (thereby excluding f.i. the law of other procedures and the law on competences).
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
hears and determines what happens in civil
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
, criminal
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
(in the U.S.) or fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
(in other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries) to all cases that come before a court. The substantive law
Substantive law
Substantive law is the statutory or written law that defines rights and duties, such as crimes and punishments , civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process.Substantive law stands in contrast to procedural...
, which refers to the actual claims and defenses whose validity is tested through the procedures of procedural law, is different than procedural law.
In context of procedural law; procedural rights
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
may also refer not exhaustively to rights to information, rights to justice, rights to participation which those rights encompassing, general Civil and Political rights. In environmental law
Environmental law
Environmental law is a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity...
, these procedural Rights have been reflected within the UNECE Convention
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
on "Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters" known as the Aarhus Convention
Aarhus Convention
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on June 25, 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001...
(1998).
Legal procedure
Although different legal processLegal process
Legal process , are the proceedings in any civil lawsuit or criminal prosecution and, particularly, describes the formal notice or writ used by a court to exercise jurisdiction over a person or property...
es aim to resolve many kinds of legal disputes, the legal procedures share some common features. All legal procedure, for example, is concerned with due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. Absent very special conditions, a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
can not impose a penalty - civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
or criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
- against an individual who has not received
notice
Notice
Notice is the legal concept in which a party is made aware of a legal process affecting their rights, obligations or duties. There are several types of notice: public notice , actual notice, constructive notice, and implied notice....
of a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
being brought against them, or who has not received a fair opportunity to present evidence for themselves.
The standardization for the means by which cases are brought, parties are informed, evidence is presented, and facts are determined is intended to maximize the fairness of any proceeding. Nevertheless, strict procedural rules have certain drawbacks. For example, they impose specific time limitations upon the parties that may either hasten or (more frequently) slow down the pace of proceedings. Furthermore, a party who is unfamiliar with procedural rules may run afoul of guidelines that have nothing to do with the merits of the case, and yet the failure to follow these guidelines may severely damage the party's chances. Procedural systems are constantly torn between arguments that judges should have greater discretion in order to avoid the rigidity of the rules, and arguments that judges should have less discretion in order to avoid an outcome based more on the personal preferences of the judge than on the law or the facts.
Legal procedure, in a larger sense, is also designed to effect the best distribution of judicial resources. For example, in most courts of general jurisdiction
General jurisdiction
A court of general jurisdiction is one that has the authority to hear cases of all kinds - criminal, civil, family, probate, and so forth.-Courts of general jurisdiction in the United States:All federal courts are courts of limited jurisdiction. Many U.S...
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, criminal cases are given priority over civil cases, because criminal defendants stand to lose their freedom, and should therefore be accorded the first opportunity to have their case heard.
"Procedural law"/"Substantive law" in various languages
The "procedural law" in opposite to "substantive lawSubstantive law
Substantive law is the statutory or written law that defines rights and duties, such as crimes and punishments , civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process.Substantive law stands in contrast to procedural...
" is a concept available in various legal systems and languages. Similar to the English expressions are the Spanish words derecho adjectivo and derecho material or derecho sustancial/sustantivo, as well as the Portuguese terms for them, direito adjetivo and direito substantivo. Other ideas are behind the German expressions formelles Recht (or Prozeßrecht) and materielles Recht as well as the French droit formel/droit matériel, the Italian diritto formale/diritto material and the Swedish formell rätt/materiell rätt; all of which, taken literally, means "formal" and "material" law. The same opposition can be found in the Russian legal vocabulary, with материальное право for substantive law and процессуальное право for procedural.
In Germany the expressions formelles / materielles Recht have been developed in the 19th century, because only during such time the Roman actio has been split into procedural and substantive components.
The substance of "Procedural law"/"Substantive law" in Europe
In the European legal systems the Roman lawRoman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
had been of great influence. In ancient times the Roman civil procedure applied to many countries. One of the main issues of the procedure has been the actio (similar to the English word "act"). In the procedure of the legis actiones the actio included both procedural and substantive elements. Because during this procedure the Praetor
Praetor
Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus assigned varied duties...
had granted, or denied, litigation by granting or denying, respectively, an actio. By granting the actio the praetor in the end has created claims. I.e. a procedural act caused substantive claims to exist. Such priority (procedure over substance) is contrary to what we think of the relationship nowadays. But it has not only been an issue of priority and whether the one serves the other. Since the actio had been composed of elements of procedure and substance it was difficult to separate both parts again.
Even the scientific handling of law, which has grown up during medieval times in the new universities in Italy (in particular in Bologna, Mantua) did not come to a full and clear separation. (The English system of "writs" in the middle age had a similar problem like the Roman tradition with the actio.)
In Germany the unity of procedure and substance in the actio definitely has been brought to an end at the codification of the Bürgerliches Gesetzbuch
Bürgerliches Gesetzbuch
The Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
(BGB) which came into force on January 1, 1900. The expression Anspruch (§ 194 of BGB) - meaning "claim" - has been "cleared" from procedural elements. And this was the time for "founding" the terms formelles / materielles Recht. However, after World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
the expression formelles Recht obviously has been found "contaminated" and to a broad extent has been replaced by Prozeßrecht meaning narrowing the idea behind it to "law of litigation" (thereby excluding f.i. the law of other procedures and the law on competences).
Europe in ancient and medieval times / Germany
- Andreas Kollmann: Begriffs- und Problemgeschichte des Verhältnisses von formellem und materiellem Recht, edition: Duncker & Humblot, Berlin, Schriften zur Rechtsgeschichte no. 68, 1996
Further reading
- Cardozo, Benjamin N. (1998). The Nature of the Judicial ProcessThe Nature of the Judicial ProcessThe Nature of the Judicial Process was written by Associate Justice of the United States Supreme Court, and New York Court of Appeals Chief Justice Benjamin N. Cardozo in 1921. It was compiled from The Storrs Lectures delivered at Yale Law School....
. New Haven: Yale University Press. - Frank, Jerome (1985). Law and the Modern Mind. Birmingham, AL: Legal Classics Library.
- Levi, Edward H. (1949) An Introduction to Legal Reasoning. Chicago: University of Chicago Press.
- Marshall, Thurgood (2001). Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences. Chicago: Lawrence Hill Books.
- Miller, Arthur S. (1985). Politics, Democracy and the Supreme Court: Essays on the Future of Constitutional Theory. Westport, CT: Greenwood Press.
- Tribe, Laurence (1985). God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History. New York: Random House.
- Zelermyer, William (1977). The Legal System in Operation. St. Paul, MN: West Publishing.
External links
- http://www.uscourts.gov/rules/ US Federal Court Rules