Substantive

By Daisy Rogozinsky
/
July 24, 2022

There are two types of law: substantive and procedural. In this article, we’ll define the term “substantive” and explain how it contrasts with procedural law. 

Key Takeaways

  • Substantive law is the law that defines crimes and punishments and governs the rights and obligations of individuals
  • Substantive law includes the law of contracts, real property, torts, and criminal law
  • U.S. substantive law historically derives from the common law, but today it is mostly governed by federal and state statutes
  • In contrast to substantive law, procedural law governs how the courts and conducted and the process of obtaining rights
  • The distinction between substantive and procedural law is not always clear, but one way to determine whether a law is substantive is to consider whether it has the potential to determine the outcome of the litigation
  • The Erie Doctrine requires federal courts to apply state laws for matters of substantive law

What Is Substantive?

Substantive law is law which governs the original rights and obligations of individuals. It may derive from the common law, statutes, or a constitution. Substantive law creates or defines rights, duties, obligations, and causes of action that can be enforced by law. It defines crimes and punishments, as well as civil rights and responsibilities. Substantive law includes the law of contracts, real property, torts, and criminal law. 

Historically, U.S. substantive law came from the common law and legal statutes and was mostly derived from principles found in judicial decisions. However, substantive law has changed rapidly in the 20th century as federal and state legislatures have enacted statutes that displaced many common law principles. 

Substantive Law vs. Procedural Law

In contrast to substantive law, procedural law is the body of legal rules that govern the process of determining the rights of parties. It governs how the courts are conducted and sets the rules and methods used to obtain a person’s rights.

Note that the distinction between substantive and procedural law is not always clear, and federal courts have historically struggled to define whether a particular law is substantive or procedural. Yet this question is important because it often determines where state or federal jurisdiction applies, as the Erie Doctrine requires federal courts to apply state laws for matters of substantive law. One way to determine whether a law is substantive is to consider whether it has the potential to determine the outcome of the litigation. 

Example of Substantive Law vs. Procedural Law

Criminal substantive law defines certain behaviors as illegal and lists the elements that the government must prove to convict a person of a crime. In contrast, the rights of an accused person such as those guaranteed by the Fourth, Fifth, and Sixth Amendments are part of the body of criminal procedural law. 

So let’s say, for example, that we’re looking at a criminal case in which a defendant is being charged with fraud. Substantive law is the law that makes fraud illegal and defines what it is. Procedural law is the law that guarantees that the defendant in the case will be given certain rights such as the right to a speedy and public trial.

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