Difference Between Procedural Law and Substantive Law

Edited by Diffzy | Updated on: August 18, 2023


Difference Between Procedural Law and Substantive Law

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The existence of procedural law without substantive law is pointless, and the reverse may prove disastrous. Procedural law clearly maps out how a case must proceed step-by-step; this ensures individuals do not have unfair trials due to corrupted courts. Substantive law affirms or negates a person’s innocence and the punishment to be doled out if the person is found guilty.

Procedural law is the manner of determining the defendant’s culpability (responsibility for a wrong). For example, all arrests have probable cause, and the arrested person must be offered a court-appointed attorney. Remember how Schmidt and Jenko (in the film 21st Jump Street) were forced to let the person they arrested go because they didn’t read them their Miranda rights? That’s what happens when procedural laws are not strictly adhered to.

Substantive law defines what is considered to be criminal behavior, and the prosecutor must respect the limits set by the procedural law when prosecuting/proving his case against the defendant. However, the distinction between procedural and substantive law is not always clear-cut. Sometimes, deep analysis is required to determine whether a law is procedural or substantive.

Procedural Law Vs. Substantive Law

Procedural law lays down the procedure for enforcing substantive law (how a case must proceed), whereas substantive law establishes people’s rights and obligations (what individuals can and cannot do).

Difference Between Procedural Law And Substantive Law In Tabular Form

Parameters of ComparisonProcedural LawSubstantive Law
MeaningProcedural law is a set of rules courts rely on to decide criminal or civil suit outcomes.Substantive law is about behavior and conduct.
RegulationSubstantive law regulates procedural law.The acts of Parliament regulate the substantive law.
Deals withIt is concerned with the proceedings inside the court, such as appeals, pleas, presenting evidence, etc.It is concerned with matters that take place outside the court, such as rights and liabilities of the society’s members.
ApplicationIt can be applied in legal and non-legal contexts.Substantive law’s application is possible only in legal contexts.
Sets forthIt sets forth how to determine guilt. That is, how the prosecution must proceed.It sets forth what constitutes a crime and the classification/degrees of the crimes.

What Is Procedural Law?

Procedural law, also known as remedial law or simply rules of court, refers to the rules courts must follow when hearing a civil or criminal lawsuit. It ensures that all cases that come before the court are duly processed. If a person is harmed due to disregard for the exact course set by procedural law, it is known as a due process violation. For example, a court cannot penalize a person who has not received notice of a lawsuit against them. Procedural law is known as derecho adjetivo in Spanish, direito adjetivo in Portuguese, and diritto formale in Italian.

Some of the common procedural laws in various states are:

  • The arrests must be made with probable cause.
  • The crime charges must clearly state what crime the defendant is accused of.
  • The defendant must have an opportunity to plea bargain or provide a statement of guilt or innocence.
  • The accused must receive the official notice to appear in court, and so on.

The drawback of strict procedural law is that it may slow down proceedings as the procedures set forth are cumbersome. On the flip side, the time limitations set for procurement and presentation of evidence may not be enough. Moreover, in the US, criminal cases are prioritized over civil cases because the freedom of those accused of criminal activity is at stake. This higher priority for criminal cases may result in civil cases lagging.

Types Of Procedural Law

Procedural law is of two types – civil and criminal. The procedure differs for civil and criminal lawsuits.

Criminal Procedure

Criminal procedure is an adjudication process. It begins with the criminal charge against the person who is either incarcerated (in jail) or free on bail and ends with acquittal or conviction. The burden of proof rests with the prosecution. That is, the prosecutor is responsible for proving the defendant is guilty. The defendant is innocent if the prosecution fails to present sufficient proof of their guilt even though there may be no proof of innocence (presumption of innocence).

Criminal prosecution is initiated by the state or federal government. However, in some countries, citizens are allowed to initiate the process against another citizen. The party bringing the criminal action is referred to as prosecution, and the other party is the defendant or accused. In civil law countries, an inquisitorial adjudication system is followed (the magistrate takes an active part in the investigation). Common law countries have an adversarial system. The former system is criticized as lacking the presumption of innocence, whereas the latter is criticized as being favorable to rich defendants.

The United States Criminal Procedure

The government may bring criminal charges either by directly accusing the suspect or letting the grand jury decide whether the case may proceed. Once charged, the case is brought in front of the petit jury (6 – 12 juries). The prosecution first presents its opening statement followed by the defense. Alternatively, the defense may opt to wait until the prosecution completes presenting its entire case. The prosecution presents its case through witness testimonials and physical evidence that would prove the defendant’s guilt.

After this, the defense may ask to dismiss the case due to lack of sufficient evidence or present its case by calling its witnesses and submitting any evidence that proves the defendant could not have committed the crime. Moreover, the defense attorney can try to reveal the holes in the prosecution’s case through clever cross-examination of their witnesses (as Perry Mason does in every book in the series). Of course, the prosecution will try to do the same with the defense’s witnesses. The defendant may opt not to testify in his trial, and the jury cannot hold that as a sign of guilt. Later, both parties issue their closing statements, and the juries deliberate on what verdict to give.

The jury may or may not reach a unanimous verdict. A verdict may be accepted even if it is not unanimous as long as the jury consists of more than six people. If the juries are unable to reach a decision as to the defendant’s guilt, it is known as deadlock, and that in itself may serve as a verdict. The judge overrules whatever verdict the juries pronounce only if he considers it unlawful (a rare occurrence).

Civil Procedure

Civil procedure is the set of rules courts follow when civil lawsuits are initiated. Individuals and companies initiate civil actions for their own benefit. The prosecuting party is known as the plaintiff or claimant, and the other party is referred to as the defendant. The burden of proof is slightly lesser in the case of civil lawsuits compared to criminal lawsuits, which require proof ‘beyond reasonable doubt’.

Even if the accused is found guilty in a criminal case, the victim still has to prove his case in a civil one to benefit. For example, a person may have been found guilty of careless or drunken driving. However, the plaintiff must prove the victim suffered due to such action to be awarded damages. Civil procedures may be inquisitorial or adversarial.

In the United States, The Federal Rules of Civil Procedure is a comprehensive guide on how to conduct civil lawsuit proceedings in federal courts. The states have separate rules of procedure; however, they are most often modeled after the federal rules. Apart from the US, Australia, Brazil, Canada, England, India, Germany, and some other countries follow civil law procedures.

What Is Substantive Law?

Substantive law refers to claim (a set of facts that justify suing another party) and defense (counter-argument put forward by a party to avert civil liability or criminal conviction). The validity of such a claim or defense is tested using procedural law. Substantive law is concerned with the legal relationships between the state and its people. Substantive law is known as derecho sustantivo in Spanish, direito substantivo in Portuguese, and diritto materiale in Italian. Similar to procedural law, substantive law varies from state to state.

As substantive law defines rights and remedies, the defense counsel must have in-depth knowledge of substantive law to determine how best to argue in the defendant’s favor and break down the prosecution’s case. For example, the officer’s knowledge that the accused drove under the influence of alcohol is not enough. They must be able to prove that the defendant was legally intoxicated (that is, the defendant must have had more than the allowed maximum percentage of alcohol in his blood) while driving on a public road.

Types Of Substantive Law

The two types of substantive law are as follows:

Substantive Civil Law

Substantive civil law determines whether the plaintiff has truly suffered and therefore entitled to compensation. If the plaintiff is successful in proving his case, he is awarded compensation for any harm suffered due to the defendant’s actions.

Substantive Criminal Law

This law clearly defines what constitutes a crime (felony or misdemeanor), the degree (first, second, third, etc.) of the said crime, and the fitting punishment (fine, incarceration, or death penalty). According to this law, an act is not a crime if there is no rule of law to punish it. Therefore, acts that are merely immoral or anti-social do not constitute a crime (unless there is a law forbidding such acts).

Moreover, to punish a person for a crime, the law under which they are being punished must have been in effect at the of committing of crime. Retroactive punishment of a crime is forbidden. Sometimes, a person may be held criminally liable if he fails to act when legally obligated to act and had the required capability. Another important rule of this law is that a person cannot be prosecuted more than once for the same offense. This rule is the reason why Hercule Poirot prevents Inspector Japp from arresting Alfred Inglethorp in the novel The Mysterious Affair at Styles.

He waited until he collected sufficient evidence to convict the murderer. If he had not, the murderer would have walked free, and he could not have been prosecuted again even though there was enough evidence to prove his guilt beyond reasonable doubt. Furthermore, a person cannot be prosecuted for a lesser crime stemming from the crime for which he was acquitted or convicted.

Defendants cannot plead ignorance of the law, as any reasonable adult can recognize a criminal act as harmful. However, an honest mistake like carrying off some goods believing them to be one’s own does not constitute a crime (as the act lacks the intent to steal).

Main Difference Between Procedural Law And Substantive Law In Points

  • Substantive law decides whether a person is guilty, whereas procedural law decides whether a person can be pronounced guilty. A person found guilty under substantive law cannot be punished if the evidence is found to be inadmissible. So, in the absence of proper court proceedings, a person may walk free even if they did commit the crime.
  • Procedural law varies by jurisdiction and is set by the state and federal courts. County and municipal courts, too, have a set of procedures to follow. On the other hand, substantive law is derived from a statute, common law, or constitution.
  • Substantive law deals with the case’s substance, whereas procedural law deals with the court’s proceedings.
  • Only after the procedural law decides whether a case requires trial or not can substantive laws be considered.
  • Procedural law ensures a fair trial, whereas substantive law ensures a fair verdict based on the available evidence and arguments for and against the defendant.


The distinction between substantive and procedural law matters because it is crucial for building a strong case for and against the defendant. What is the use of following every procedural rule laid down when prosecuting the defendant if his act is not a crime in the eyes of the law? Moreover, even if the defendant is guilty, what is the use of prosecuting with inadmissible evidence? In the first scenario, the charge will not hold, and it won’t reach the trial stage. In the latter scenario, the defendant’s team of lawyers would break apart the case if it enters the trial stage.


  • https://www.thoughtco.com/procedural-substantive-law-4155728
  • https://elizabethfranklinbest.com/substantive-vs-procedural-law-distinctions-and-why-they-matter/
  • https://en.wikipedia.org/wiki/Procedural_law
  • https://en.wikipedia.org/wiki/Due_process
  • https://en.wikipedia.org/wiki/Civil_procedure
  • https://en.wikipedia.org/wiki/Criminal_procedure
  • https://en.wikipedia.org/wiki/United_States_criminal_procedure
  • https://www.britannica.com/topic/criminal-law/The-elements-of-crime



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"Difference Between Procedural Law and Substantive Law." Diffzy.com, 2024. Thu. 16 May. 2024. <https://www.diffzy.com/article/difference-between-procedural-law-and-substantive-law>.

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