What is the difference between procedural and substantive law?

Substantive law forms the rights and obligations that control people and organizations. It includes all laws of general and specific applicability. On the other hand, procedural law creates the legal rules by which substantive law is made, applied, and enforced, particularly in a court of law.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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Procedural law in the United States dictates the process that a case will go through (whether it goes to trial or not). Procedural law determines how a proceeding concerning the enforcement of substantive law will occur. Substantive law defines how the facts in the case will be handled, as well as how the criminal acts are to be charged. In essence, it deals with the substance of the matter. Even though both types of law are affected by Supreme Court opinions in both state and federal courts and subject to constitutional interpretations, each serves a different function in the criminal justice system.

Keep reading to find out more. If you require further legal help, just enter your ZIP code below.

Some Basic Rules of Criminal Procedure

Procedural law is exactly what the name implies. It sets out the procedural rules for how a criminal case will proceed. Every state has its own set of procedures which are usually written out in a set of rules called a code of criminal procedure. The basic rules which most jurisdictions follow include:

  • An arrest must be based on probable cause;
  • A state or federal prosecutor files a charging instrument setting out what you are accused of doing;
  • You are arraigned on the charges;
  • You advise the court whether or not you are seeking court-appointed counsel;
  • A bond amount will be set in your case;
  • You will be sent notice of a court appearance;
  • If you cannot reach a plea bargain agreement, then your case is set for a pre-trial and trial;
  • If you are convicted at trial, you have the right to appeal
  • There is a statute of limitations for most crimes after which you cannot be prosecuted for that crime

Any time you’re involved in criminal investigations, you should talk to a qualified attorney. Criminal trials can get messy fast, especially without proper representation. In the United States, you are entitled to representation including court-appointed lawyers if you cannot afford it. They can guide you through legal procedures until your case closes.

So, what is an example of procedural law? A procedural law example may be a method of filing a lawsuit such as the requirement of a complaint and service of summons; or rules of evidence such as the hearsay rule.

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Do punishment systems differ?

How much detail is required for each phase of the criminal procedures? It will vary depending on the nature of your individual charges and what agency is prosecuting you. Different states have different rules. If you’re dealing with federal rules, you get an entirely different system including different trial judges. For example, Texas has a bifurcated trial system where first you must be found guilty, and then the jury can hear sentencing evidence. A jury is given a range of possible sentences to assess in your case. The range of punishment for a first-degree felony is not less than five years and up to ninety-nine years or life in some states.

This is in stark contrast to the federal procedural law. Federal judges assess punishment and are required to utilize federal sentencing guidelines instead of a system that would give them more personal discretion. The rule of law is more exact in some ways. A federal defendant’s criminal behavior history will be researched and summarized in a report by a federal probation officer. It’s much easier to predict what your sentence will be in the federal system because the punishment procedures are based on a point system. No matter what American system you’re in, there is a certain presumption of innocence in criminal law.

What Is Substantive Law?

United States substantive law, on the other hand, deals with the “substance” of your charges. Every charge is comprised of different elements (the specific acts needed to complete a crime). Substantive law requires that the prosecutor prove every element of a crime in order for someone to be convicted of that crime. The elements required will depend on the crime with which you are charged and the state’s laws. For example, for a felony driving while intoxicated charge, most states require prosecutors to prove you were:

  • Driving or operating a motor vehicle;
  • On a public roadway;
  • Driving while intoxicated;
  • And that you have prior convictions for driving while intoxicated.

In New Mexico, the prosecutor must show that you have previously been convicted three times in legal proceeding for driving while intoxicated. Texas only requires the prosecutor to prove two prior convictions. Even minor procedural issues could turn a case on its head.

What are some examples of substantive law?

One example is a person below the age of legal competence. For most purposes, in most states, the minority age ends at age 18.

Because substantive laws and procedural laws vary by state, and sometimes even by county, make sure you consult with a criminal attorney experienced in your legal systems if charged with a crime. They will be more familiar with the procedural systems and can help you invoke the protections outlined in the laws of your state.

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How are procedural law and substantive law-related?

  • Both are the two main categories within the law for the delivery of justice
  • Procedural law complements substantive law
  • Both procedural law and substantive law are codified in the form of rules
  • Substantive law determines the rights and duties, whereas procedural law is the process of enforcing those rights and duties
  • Substantive law precedes the procedural law

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