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1.1.

Definition and Nature of


Procedural Law

Advocate Prakash Maharjan


National Law College
1. Definition, nature and importance
of procedural law
• Meaning /Definition
• Law is the body of the principles recognized
and applied by the State in the administration
of justice. For this purpose, State makes
different kinds of laws such as; criminal law,
civil law, evidence law, law of contract,
company law etc. Mainly those laws can be
divided into two branches of the law. They
are: substantive and procedural law.
Procedural law:

• Substantive law defines and determines the


rights and duties of the person. If such rights
are encroached or violated, procedural law
will show the proper way to restore such
violated rights. If somebody is reluctant to
complete the obligation as said by law,
procedural law shows the process to complete
such obligation.
• So substantive law determines rights and
liabilities of the parties where as their
enforcement is guided and regulated by the
practice, procedure and machinery as prescribed
by the procedural law.
• Procedural law is the body of legal rules that
govern the process for determining the rights of
parties. It prescribes the procedures and methods
for enforcing rights and duties and for obtaining
legal remedy through a law suit.
• It prescribes rules relating to jurisdiction, locus
standi, limitation, resjudicata, summons,
pleading and practice, prosecution of crime,
collection of evidence, witness examination,
execution of judgments etc. So procedural law
governs the process by which substantive law
is applied.
• It finds out the way of implementation of
substantive law and process of administration
of justice through civil and criminal
proceedings. It shows the way of getting back
rights in case of violation and infringement of
such rights. Therefore, it determines the
procedures to be followed in judicial
proceedings.
• The procedural law ensures fair practice and
consistency in due process of law. In other
words, procedural law will give a step by step
action plan on how the case is supposed to
proceed in order to achieve the desired goals.
It can be divided into civil procedure and
criminal procedure.
• It describes the methods and ways to achieve
the rights prescribed in the law. It deals with
the process regarding how to achieve the legal
remedy. It explains the instruction of the
remedy to address rights. For example,
Evidence Act, 2031 B.S., Aadalati Bandobasti
ko Mahal (Chapter of Court Management),
Summary procedural Act, 2028 B.S.
Substantive law:

• It determines the obligations and rights of


people and legal entities. It deals with the
legal relationship between people or the
people and the State. Therefore, substantive
law defines the rights and duties of the
people. It is based on the legal principles and
related to the subject matter
• Substantive law means the law in strict sense. It deals
with the rights, duties and all other matters that are
not matters purely of practice and procedures.
Therefore, it can be said that a substantive law creates,
defines or regulates rights and duties of the person.
• The body of substantive law includes things like
defining crimes and prescribing appropriate
punishments or providing sentencing guidelines which
can be used when determining how someone should
be sentenced, along with discussions about legal
relationships between people as well as entities.
• People can be given certain rights under
substantive law along with responsibilities,
which they must fulfill and the law can also
define situations in which liability is incurred.
Substantive law includes both civil and
criminal law.
• The purpose of substantive law is to ascertain
the subject matter of rights and duties. In
other words, substantive law refers to the
body of rules that determine and define the
rights and obligations of individuals and
collective bodies. For example: Fundamental
rights of the Interim Constitution of
Nepal,2007, rights relating to workers in trade
union Act 2049 B.S.(1992), rights and
obligations of parties in Contract Act 2056 B.S.
Relation and distinction between
Substantive law and procedural law:
• There are close relation to each other. It is
difficult to distinguish, however, W.W Cook
who was the first person to distinguish as
substantive law and procedural law. According
to him, “Substantive law gives knowledge
about the people’s right whereas, procedural
law gives knowledge about the legal
proceedings that an individual can exercise to
achieve such rights if he looses them.”
• The law relating with recognition of rights and
duties is called substantive law. It does not
only provide rights, duties, immunities and
privilege but also recognizes them and
imposes on people of the society and make
them accountable to respect that rights,
duties as well.
• Thus the substantial law provides the provisions
and methods of enforcing such rights. In this
point of view it is an objective as well as
subjective matter of law. The purpose of
substantial law is to ascertain the subject matter
of litigation, whereas the purpose of procedural
law is to ascertain the way as to how to be sued
in the Court and how the Court is supposed to
decide the things in civil and criminal
proceedings.
• According to Salmond, “Substantive law is
concerned with the ends, which the
administration of justice seeks, whereas
procedural law governs the process of
litigation.” The law which establishes means to
be followed in enforcing or ascertaining rights,
duties provisioned by substantial law is known
as a procedural law.
• In Black Law Dictionary, procedural law as “That
which prescribes methods of enforcing right or
obtaining redress for their invasion; machinery
for carrying on a suit”. For instance, the question
as to who holds the right to property is the
question of substantive law and the question how
to litigate a person to acquire his lost right is the
question of procedural law.

Conclusion:

• In conclusion, it can be said that procedural


law inseparably linked with substantive law,
prescribes the necessary procedures to
exercise and defend the provisions of
substantive law. For example, substantive law
defines the various degrees of murder while
procedural law prescribes the trial process.
• Therefore, procedural laws only tell us how the
legal process is to be executed, whereas
substantive laws have the power to offer legal
solution.
• Substantive and procedural laws are the two
main areas of the law and they are closely
interrelated with each other, as one defines the
rules of society while the other set the
framework of process for enforcing them. Hence,
one can not exist in the absence of the other.