Procedural law

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Procedural law comprises the rules by which a court hears and determines what happens in civil or criminal proceedings. The rules are designed to ensure a fair and consistent application of due process (in the U.S.) or fundamental justice (in other common law countries) to all cases that come before a court.

Lawyers distinguish procedural law from substantive law, which refers to the actual claims and defenses whose validity is tested through the procedures of procedural law.

Procedural Rights may also refer to those rights encompassing, general Civil and Political rights, including (but not exhaustively)

Rights to information
Rights to Justice
Rights to Participation

In environmental law, these procedural Rights have been reflected within the UNECE Convention on "Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters" known as the Aarhus Convention (1998).

1 European History and Concepts

[edit] European History and Concepts

[edit] "Procedural law"/"Substantive law" in various languages

The "procedural law" in opposite to "substantive law" is a concept available in various legal systems and languages. Similar to the English expressions are the Spanish words derecho adjectivo and derecho material or derecho sustancial/sustantivo, as well as the Portuguese terms for them, direito adjetivo and direito substantivo. Other ideas are behind the German expressions formelles Recht (or Prozeßrecht) and materielles Recht as well as the French droit formel/droit matériel and the Italian diritto formale/diritto material.

In Germany the expressions formelles / materielles Recht have been developed in the 19th century, because only during such time the Roman actio has been split into procedural and substantive components.

[edit] The Substance of "Procedural law"/"Substantive law" in Europe

In the European legal systems the Roman 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 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 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 has grown up 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 age had a similar problem like the Roman tradition with the actio.)

In Germany the unity of procedure and substance in the actio definitely has been brought to an end at the codification of the Bürgerliches Gesetzbuch (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 the expression formelles Recht obviously has been found "contaminated" and to a broad extent has been replaced by Prozeßrecht meaning narrowing the idea behind it to "law of litigation" (thereby excluding f.i. the law of other procedures and the law on competences).

[edit] Literature

[edit] Europe in ancient and medieval times / Germany

Andreas Kollmann: Begriffs- und Problemgeschichte des Verhältnisses von formellem und materiellem Recht, edition: Duncker & Humblot, Berlin, Schriften zur Rechtsgeschichte no. 68, 1996

[edit] Notes

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