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Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a
court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...
hears and determines what happens in civil,
lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
,
criminal In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as thre ...
or
administrative proceeding An administrative proceeding is a ''non-judicial'' determination of fault or wrongdoing and may include, in some cases, penalties of various forms. They are typically conducted by government or military institutions. In a military setting, a "Cap ...
s. The rules are designed to ensure a fair and consistent application of
due process Due process of law is application by State (polity), state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the ...
(in the U.S.) or
fundamental justice In Canadian and New Zealand law, fundamental justice is the Equity (law), fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal ...
(in other
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
countries) to all cases that come before a court.
Substantive law Substantive law is the set of laws that governs how members of a society are to behave.Substantive Law vs. Procedural Law: Definitions and Differences, Study.com/ref> It is contrasted with procedural law, which is the set of procedures for making, ...
, which refers to the actual claim and
defense Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military), forces primarily intended for warfare * Civil defense, the organizing of civilians to deal with emergencies or enemy attacks * Defense industr ...
whose validity is tested through the procedures of procedural law, is different from procedural law. In the context of procedural law, procedural
rights Rights are law, legal, social, or ethics, ethical principles of Liberty, 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 convent ...
may also refer not exhaustively to rights to information, access to
justice Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
, and
right to counsel In criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare, moral welfare of people inclusive of one ...
,
rights Rights are law, legal, social, or ethics, ethical principles of Liberty, 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 convent ...
to public participation,
right to confront accusers The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that ''"in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."'' The right only applies to crim ...
 as well as the basic
presumption of innocence The presumption of innocence is a legal principle that every person accused of any crime In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have ...
(meaning the prosecution regularly must meet the burden of proof, though different jurisdictions have various exceptions), with those rights encompassing general civil and political rights. In
environmental law Environmental law is a collective term encompassing aspects of the law that provide protection to the environment. A related but distinct set of regulatory regimes, now strongly influenced by environmental Legal doctrine, legal principles, focu ...
, these procedural rights have been reflected within the
UNECE The United Nations Economic Commission for Europe (ECE or UNECE) is one of the five regional commissions under the jurisdiction of the United Nations Economic and Social Council. It was established in order to promote economic cooperation and i ...
Convention on "Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters" known as the
Aarhus Convention The United Nations Economic Commission for Europe, 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 25 June 199 ...
(1998).


Legal procedure

Although different
legal process Legal process (sometimes simply process) is any formal notice or writ by a court obtaining jurisdiction over a person or property. Common forms of process include a summons, subpoena, Mandate (criminal law), mandate, and warrant (law), warrant. ...
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 of law is application by State (polity), state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the ...
. Absent very special conditions, a
court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...
can not impose a penalty — civil or
criminal In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as thre ...
— against an individual who has not received
notice Notice is the legal concept describing a requirement that a party (law), party be aware of legal process affecting their rights, obligations or duties. There are several types of notice: public notice (or legal notice), actual notice, constructi ...
of a
lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
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 {{Globalize, article, USA, 2name=the United States, date=December 2010 A court of general jurisdiction is a court with authority to hear cases of all kinds – criminal law, criminal, civil law (common law), civil, family law, family, probate, an ...
in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, 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.


European history and concepts


"Procedural law" and "substantive law" in various languages

"Procedural law" in contrast to "
substantive law Substantive law is the set of laws that governs how members of a society are to behave.Substantive Law vs. Procedural Law: Definitions and Differences, Study.com/ref> It is contrasted with procedural law, which is the set of procedures for making, ...
" is a concept available in various legal systems and languages. Similar to the English expressions are the Spanish words ''derecho adjetivo'' and ''derecho material'' or ''derecho sustantivo'', as well as the Portuguese terms for them, ''direito adjetivo'' and ''direito substantivo''. Other ideas are behind the German expressions ''formelles Recht'' (or ''Verfahrensrecht'') and ''materielles Recht'' as well as the French ''droit formel/droit matériel'', the Italian ''diritto formale/diritto materiale'' and the Swedish ''formell rätt/materiell rätt''; all of which, taken literally, mean "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. Similar to Russian, in Bulgarian "материално право" means substantive law and ''процесуално 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 expressions ''formelles Recht'' and ''materielles Recht'' were developed in the 19th century, because only during that time was the Roman ''actio'' split into procedural and substantive components.


The substance of "procedural law"/"substantive law" in Europe

In the European legal systems the
Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
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 ( , ), also pretor, was the title granted by the government of Ancient Rome In modern historiography, ancient Rome refers to Roman civilisation from the founding of the city of Rome in the 8th century BC to the collapse of the W ...
'' 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 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 the ''actio''.) In Germany the unity of procedure and substance in the ''actio'' definitely was brought to an end with the codification of the ''
Bürgerliches Gesetzbuch The ''Bürgerliches Gesetzbuch'' (, ), abbreviated BGB, is the civil code A civil code is a codification of private law relating to property law, property, family law, family, and law of obligations, obligations. A jurisdiction that has ...
'' (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 or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the World War II by country, vast majority of the world's countries—including all of the great power ...
the expression ''formelles Recht'' obviously was found to be "contaminated" and to a broad extent has been replaced by ''Prozessrecht'', narrowing the idea behind it to "law of litigation" (thereby excluding e.g. the law of other procedures and the law on competences).


See also

*
Civil procedure Civil procedure is the body of law that sets out the rules and standards that court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law) ...
*
Criminal procedure Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or i ...
*
Hearing (law) In law, a hearing is a Legal proceeding, proceeding before a court or other decision-making body or officer, such as a government agency or a legislative committee. Description A hearing is generally distinguished from a trial (law), trial in t ...
*
Legal technicality The term legal technicality is a casual or colloquial phrase referring to a technical aspect of law. The phrase is not a term of art in the law; it has no exact meaning, nor does it have a legal definition. It implies that strict adherence to the ...
* Vyavahara


Further reading

*Andreas Kollmann: ''Begriffs- und Problemgeschichte des Verhältnisses von formellem und materiellem Recht'', edition: Duncker & Humblot, Berlin, ''Schriften zur Rechtsgeschichte'' no. 68, 1996. *Cardozo, Benjamin N. (1998). '' The Nature of the Judicial Process''. 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.
Max Planck Institute Luxembourg for Procedural Law


External links


US Federal Court Rules
{{Authority control Legal procedure