Procedural Law and the Substantive Law

According to Sir John Salmond, “The law of procedure (also called as the procedural law) may be defined as that branch of the law which governs the process of litigation”. It is the law of actions and includes all legal proceedings whether civil or criminal. All the residue is substantive law. It relates not to the process of litigation but to its purpose and subject matter. 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. It regulates the conduct and relations of courts and litigants in respect of the litigation itself.

Substantive law determines their conduct and relations in respect of the matters litigated. Procedural law regulates the conduct of affairs in the course of judicial proceedings. Substantive law regulates the affairs controlled by such proceedings. What facts constitute a wrong is determined by substantive law. What facts constitute proof of a wrong is a question of procedure. The first relates to the subject matter of litigation and the second relates to the process merely. Whether an offence is punishable by fine or by imprisonment is a question of substantive law. Whether an offence is punishable summarily or only on indictment is a question of procedural law.

The abolition of capital punishment is an alteration of the substantive law. The abolition of imprisonment for debt is merely an alteration in the law of procedure. The reason is that punishment is one of the ends of the administration of justice but imprisonment for debt is merely an instrument to enforce payment. Substantive law relates to matters outside the courts but procedural law deals with matters inside courts.

It has rightly been pointed out that “the law of procedure is not the same thing as the law of remedies”. The distinction that substantive law defines rights and procedural law determines remedies is not a right one. The reason is that there are many rights which belong to the sphere of procedure. Examples are a right of appeal, a right to give evidence on one’s own behalf, a right to interrogate the other party, etc. Moreover, rules of defining the remedy may be as such a part of substantive law as those defining the right itself. No one can call the abolition of capital punishment a change in the law of criminal procedure. The substantive part of criminal law deals not only with crimes but also with punishments. Likewise, in civil law, the rules regarding the measure of damages pertain to substantive law.

The rules determining the classes of agreements which can be specifically enforced are substantive law in the same way as those rules which determine the agreements which can be enforced at all. To quote Salmond, “To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available.” The real distinction between substantive law and procedural law is that one relates to the definition of rights and remedies and the other to the process of litigation.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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