PROCEDURAL LAW

also called adjective law the law governing the machinery of the courts and the methods by which both the state and the individual (the latter including societies, whether incorporated or not) enforce their rights in the several courts. It prescribes the means of enforcing rights or providing redress of wrongs and comprises rules relative to jurisdiction, pleading and practice, evidence, appeal, execution of judgments, representation of counsel, costs, conveyancing and registration, and other matters. Procedural law is commonly contrasted with substantive law, which constitutes the great body of law and defines and regulates legal rights and duties. (See also evidence.) To be effective, law must go beyond the determination of the rights and obligations of individuals and collective bodies to an indication of how these rights and obligations can be enforced. It must do this, moreover, in a systematic and formal way. Otherwise, the numerous disputes that arise in a complex society cannot be handled efficiently, fairly, without favouritism, and, equally important for the maintenance of social peace, without the appearance of favouritism. This systematic and formal way is procedural law. Procedural law, then, constitutes the sum total of legal rules designed to ensure the enforcement of rights by means of the courts. It thus contrasts with substantive law, the sum total of the rules determining the essence of the rights and obligations. Because procedural law is only a means for enforcing substantive rules, there are different kinds of procedural law, corresponding to the various kinds of substantive law. Criminal law, for example, is the branch of substantive law dealing with punishment for offenses against the public and has as its corollary criminal procedure, which indicates how the sanctions of criminal law must be applied. Substantive private law, which deals with the relations between private (that is, nongovernmental) persons, whether individuals or corporate bodies, has as its corollary the rules of civil procedure. Because the object of judicial proceedings is to arrive at the truth using the best available evidence, there must be procedural laws of evidence to govern the presentation of witnesses, documentation, and physical proof. The law of conflict of laws, in both its civil and criminal applications, provides methods for resolving problems that arise from the diversity of legal systems in the world. This article deals with procedural laws as they apply to the Anglo-American common law and the continental European civil law. Substantive laws are covered in such articles as criminal law; business law; and constitutional law. For treatment of administrative procedural law, see public administration. Peter E. Herzog Mario E. Occhialino also called adjective law the law governing the machinery of the courts and the methods by which both the state and the individual (the latter including societies, whether incorporated or not) enforce their rights in the several courts. It prescribes the means of enforcing rights or providing redress of wrongs and comprises rules relative to jurisdiction, pleading and practice, evidence, appeal, execution of judgments, representation of counsel, costs, conveyancing and registration, etc. Procedural law is commonly contrasted with substantive law, which constitutes the great body of law and defines and regulates legal rights and duties. (See also evidence.) Procedural law is a set of established forms for conducting a trial and regulating the events that precede and follow it. Its primary concern is the just and efficient enforcement of the substantive law: for instance, whereas the substantive law of the criminal code outlines what an offense is and how it will be punished, criminal procedure specifies how the rights of the accused will be protected. Typically, common-law proceedings begin with the determination of jurisdiction, the selection of a court on the basis of its specialization in an area of law related to the issue at hand, its authority over the defendant, or the location (venue) most suitable for the participants. The parties entitled to institute a legal suit generally include only those who can lay proper claim to the rights at issue or who stand to benefit from the outcome of the trial (known as the real party)though, when a segment of the public is involved, a representative party may be selected to represent the entire group in trial procedures called class actions. Others who may enter a trial are anyone presented as an amicus curiae (friend of the court) who testifies in support of one of the contending sides, and anyone joined to the suit as being interested in the litigation. Because trials often extend over long periods of time, actions such as attachments and temporary injunctions are sometimes taken before court proceedings actually begin, in order to ensure that the rights or properties under dispute cannot be infringed upon or disposed of while the trial is waiting to be heard or is in progress. In the first stage of a trial, called pleading, contending sides meet to set forth their claims, usually written in concise, formal documents that facilitate definition and limitation of the issues and determination of their validity. In Anglo-American procedural law, the second stage of the trial consists of presentation of the case to a jury, whereas in the European system documentary evidence only is presented to a group of judges. During the trial, the plaintiff and defendant present their cases and summon witnesses to testify, who may in turn be cross-examined by the opponent. The judge regulates the proceedings, determines the admissibility of evidence when objections are raised, and lastly submits instructions to the jury concerning the laws pertaining to the issues. The jury then deliberates and presents a verdict. If no request for retrial is granted, the final stage of the procedure is either enforcement or appeal; according to res judicata and collateral estoppel regulations, defendants cannot be tried again for the same cause or for a different cause based on an identical set of facts. Monetary awards and the permission or restraint of action decided by the court are subject to immediate enforcement, and failure to comply may result in additional penalties for contempt of court. The losing party in a suit generally must compensate the opponent for legal expenses in addition to the amount of the penalty or compensation specified by the court. Additional reading Historical growth of procedural law See Leopold Wenger, Institutes of the Roman Law of Civil Procedure, rev. ed. (1940, reprinted 1986), the classic on the topic; John P. Dawson, A History of Lay Judges (1960), in disagreement with some of Wenger's conclusions, although not limited to Roman law, and The Oracles of the Law (1968, reprinted 1986), a complementary work on the history of professional judges; Arthur Engelmann et al., A History of Continental Civil Procedure (1927, reprinted 1968; originally published in German, 1901), the classic text in English; Robert W. Millar, Civil Procedure of the Trial Court in Historical Perspective (1952), which discusses the history of Anglo-American trial procedure; and Theodore F.T. Plucknett, A Concise History of the Common Law, 5th ed. (1956), a general treatment of English legal history. Civil procedure M. Cappelletti (ed.), Access to Justice, 40 vol. in 6 (197879), is a cooperative work by several contributors discussing problems and possibilities involved in attempts to secure access to justice for all; M. Cappelletti (ed.), Civil Procedure, vol. 16 of International Encyclopedia of Comparative Law (1973 ), issued in fascicles, is a scholarly discussion of all aspects of civil procedure by contributors from many countries; and Charles E. Clark, Procedure: The Handmaid of Justice (1965), is a collection of significant essays. Elements of civil procedure American civil procedure is treated in Kevin M. Clermont, Civil Procedure (1982); Jack Friedenthal, Mary Kay Kane, and Arthur R. Miller, Civil Procedure (1985), a substantially more detailed discussion, mainly intended for students; Fleming James, Jr., and Geoffrey C. Hazard, Jr., Civil Procedure, 3rd ed. (1985), a discussion in some depth; Joseph H. Koffler and Alison Reppy, Handbook of Common Law Pleading (1969), a discussion of earlier procedure; and Harvard Law Review, Essays on Civil Procedure (1961, reissued 1967), a collection of valuable essays in the field.Civil procedure in other countries is treated in M. Cappelletti and Joseph M. Perillo, Civil Procedure in Italy (1965), one of the best available treatments in English; Ruth Bader Ginsburg and Anders Bruzelius, Civil Procedure in Sweden (1965), an indispensable work; Takaaki Hattori and Dan Fenno Henderson, Civil Procedure in Japan (1983), a valuable discussion of modern procedure, published in loose-leaf format; and William B. Odgers, Odgers' Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 22nd ed. by D.B. Casson and I.H. Dennis (1981), a standard work on England's civil procedure.Treatments of special topics in civil procedure include Edwin M. Borchard, Declaratory Judgments, 2nd ed. rev. (1941), the classic work; M. Cappelletti, Procdure orale et procdure crite: Oral and Written Procedure in Civil Litigation (1971), a comparative study based on reports from several countries, with a summary in English; and Robert C. Casad, Res Judicata in a Nutshell (1976), an introduction to problems of effect of judgments. Peter E. Herzog Mario E. Occhialino Criminal procedure Texts on English criminal procedural law and practice include John Frederick Archbold, Pleading, Evidence, and Practice in Criminal Cases, 42nd ed. edited by Stephen Mitchell and P.J. Richardson (1985); and Celia Hampton, Criminal Procedure, 3rd ed. (1982), an introductory text. Criminal procedure in the United States is detailed in Francis Wharton, Wharton's Criminal Procedure, 12th ed. by Charles E. Torcia, 4 vol. (197476), with annual cumulative supplements; Wayne R. Lafave and Jerold H. Israel, Criminal Procedure, 3 vol. (1984), a standard textbook; Joseph G. Cook, Constitutional Rights of the Accused, 2nd ed., 3 vol. (198586), a treatise on procedural law under the U.S. Constitution; and James E. Bond, Plea Bargaining and Guilty Pleas, 2nd ed. (1983), published in loose-leaf format. Texts on the law of criminal procedure in other countries include, for France, Jean Pradel, Procdure pnale, 4th ed. rev. and enl. (1987); for Italy, Gian Domenico Pisapia, Compendio di procedura penale, 3rd ed. (1982); and for Germany, John H. Langbein, Comparative Criminal Procedure: Germany (1977); and Claus Roxin, Strafverfahrensrecht, 20th rev. ed. (1987). Hans-Heinrich Jescheck Thomas Weigend Criminal procedure The law of criminal procedure regulates the modes of apprehending, charging, and trying suspected offenders; the imposition of penalties on convicted offenders; and the methods of challenging the legality of conviction after judgment is entered. Litigation in this area frequently deals with conflicts of fundamental importance for the allocation of power between the state and its citizens. Procedure before trial The investigatory phase When a criminal offense has been reported, the competent authority (the police, the public prosecutor, or the investigating magistrate) commences the criminal process by investigating the circumstances. In this phase, relevant evidence is collected and preserved for a possible trial. The suspect also has the right to collect evidence in his favour. In the civil-law countries of continental Europe, he can typically request the investigating authority to assist him in this endeavour; in common-law countries, the suspect is expected to take the initiative in preparing the case for his defense.