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Procedural law,adjective law, in some jurisdictions referred to asremedial law, orrules of court, comprises the rules by which acourt hears and determines what happens incivil,lawsuit,criminal oradministrative proceedings. The rules are designed to ensure a fair and consistent application ofdue process (in the U.S.) orfundamental justice (in othercommon law countries) to all cases that come before a court.[1]
Substantive law, which refers to the actualclaim anddefense whose validity is tested through the procedures of procedural law, is different from procedural law. In the context of procedural law,procedural rights may also refer not exhaustively torights to information, access tojustice, andright to counsel,rights topublic participation, andright to confront accusers, as well as the basicpresumption of innocence (meaning the prosecution regularly must meet theburden of proof, although different jurisdictions have various exceptions), with those rights encompassing general civil and political rights. Inenvironmental law, these procedural rights have been reflected within theUNECEConvention on "Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters" known as theAarhus Convention (1998).
Although differentlegal processes aim to resolve many kinds of legal disputes, the legal procedures share some common features. All legal procedure, for example, is concerned withdue process. Absent very special conditions, acourt can not impose a penalty —civil orcriminal — against an individual who has not receivednotice of alawsuit being brought against them, or who has not received a fair opportunity to present evidence for themselves.[2]
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 affect the best distribution of judicial resources. For example, in most courts ofgeneral jurisdiction in theUnited 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.
"Procedural law" in contrast to "substantive law" is a concept available in various legal systems and languages. Similar to the English expressions are the Spanish wordsderecho adjetivo andderecho material orderecho sustantivo, as well as the Portuguese terms for them,direito adjetivo anddireito substantivo. Other ideas are behind the German expressionsformelles Recht (orVerfahrensrecht) andmaterielles Recht as well as the Frenchdroit formel/droit matériel, the Italiandiritto formale/diritto materiale and the Swedishformell rätt/materiell rätt; all of which, taken literally, mean "formal" and "material" law.
The same opposition can be found in the Russian legal vocabulary, withматериальное право for substantive law andпроцессуальное право for procedural. Similar to Russian, inBulgarian "материално право" means substantive law andпроцесуално право is used for procedural. In Chinese, "procedural law" and "substantive law" are represented by these characters: "程序法" and "实体法". In Germany, the expressionsformelles Recht andmaterielles Recht were developed in the 19th century, because only during that time was the Romanactio split into procedural and substantive components.
In the European legal systems theRoman law 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 theactio (similar to the English word "act"). In the procedure of thelegis actiones theactio included both procedural and substantive elements.[3] Because during this procedure thepraetor had granted, or denied, litigation by granting or denying, respectively, anactio. By granting theactio thepraetor 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 theactio had been composed of elements of procedure and substance it was difficult to separate both parts again.
Even the scientific handling of law, which developed 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 Ages had a similar problem to the Roman tradition with theactio. In Germany, the unity of procedure and substance in theactio definitely was brought to an end with the codification of theBürgerliches Gesetzbuch (BGB) which came into force on January 1, 1900. The expressionAnspruch (§ 194 of BGB) - meaning "claim" - has been "cleared" from procedural elements. And this was the time for "founding" the termsformelles / materielles Recht. However, afterWorld War II the expressionformelles Recht was found to be "contaminated" and to a broad extent has been replaced byProzessrecht, narrowing the idea behind it to "law of litigation" (thereby excluding e.g. the law of other procedures and the law on competences).
