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Procedural law vs. substantive
Procedural law vs. substantive
Difference between substantive law and procedural law
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Recommended: Procedural law vs. substantive
Kilee Davis
Criminal Justice
Substantive vs. Procedural law
2/16/17
Substantive law and Procedural law work together to make sure all procedures are carried out to bring a case to trial. In this essay I will prove the differences between Substantive law and Procedural law. To start out, here is the definition of each two terms. Substantive law, is the set of laws that governs how members of a society are act. On the other hand, Procedural law is the mechanisms created to enforce the rights and duties created by substantive law.
Substantive law tells the crimes and punishments to those who have committed a crime. It is also the law that defines the rights and responsibilities of a person. Examples of Substantive law would
Stuntz discusses how there has been a big shift of power in the criminal justice system. When America was first getting started the judge had more power, but today that power has shifted and the judge has less power than the prosecutors. The federal government has big concerns in other areas, while the criminal justice is not its’ own, but works differently. The responsibility and the management of the criminal justice system belong to local elected officials, local law enforcement, and state law. Also the criminal justice system tends to focus more on the Bill of Rights, which four of them are specifically about crime in America (Fourth, Fifth, Sixth, and Eighth). Stuntz also discusses substantive and procedural law and shows how they can be related, but are also very different. Substantive law defines what a crime and what punishments fit, meanwhile procedural law is about the process the of the criminal justice system, for example, procedural law will explain the steps a police officer must take in order to have a justifiable arrest. There’s also a lot of comparison between the nineteenth century criminal justice process , and the twentieth century. In the nineteenth century, there was no elected officials the judge made all decisions, and prosecutors were only paid by cases and conviction, which caused to convict even the pettiest of crimes. Meanwhile, in the twentieth century the balance of power
1. Equal protection clause is part of the 14th amendment according to the clause it governs every citizen to be treated equally under federal law. Furthermore, substantive law follows the 1st amendment rights which has nothing to do with public safety. The 1st amendment and the 14th amendment coincides. The 1st amendment allows freedom to privacy, voting, marriage etc. The 14th amendment allows the government to uphold the equal protection law which states when a law or action limits difference coinciding with the 1st amendment which states fundamental rights includes equally protection. However, the difference is the laws requires motor cyclist to wear helmets and motorist to wear seat belts. However, if a motorist is operating a comfortable
The state should always observe them in ensuring that an individual faces a fair and impartial trial which they have been accused of. The procedural due process is concerned with verifying that the law was applicable and convincing. Also involves the arrest and examination of the charges brought forward.
Statutory law – this body of law is crucial to the safety of the public. How our different bodies of government function and many of the laws within them are based on the above law. The outline used for today’s society and how justice is maintained comes from this law. (Demand Media, 2011) Mainly these laws are written and set by governing authorities in response to the needs of the public or civil order. (Statutory law - Definition, 2010)
Sources of criminal law have been discussed which include: common law, constitutions, statutory law, and administrative law. A lot of information concerning common law has been discussed including its originality and doctrine of precedence. The latter means if the court comes to a decision concerning a particular matter, they are supposed to rule in the same way if similar scenario repeats in future so as to ensure every individual gets same treatment by courts under the law (Reid, 2013). Same has been done to other sources of criminal law. It is also stated very clearly that in the broadest sense of criminal law encompasses both substantive criminal law and criminal procedure. Murder is a good example of substantive law since there is prohibition of killing another person without
A tort is a wrong. More precisely, a tort is a violation of a duty imposed by the civil law. When a person breaks one of those duties and injures another, it is a tort. The injury could be to a person or her property. In a tort case, it is up to the injured party to seek compensation. She must hire her own lawyer, who will file a lawsuit. Her lawyer must convince the court that the defendant breached some legal duty and ought to pay money damages to the plaintiff. A crime is an act so threatening that the government itself will prosecute whether the injured party wants the case to go forward. A district attorney, who is paid by the government, will bring the case to court seeking to send the defendant to prison. If there is a fine,
A precedent is defined as “a legal norm established in court cases that is then applied to future cases dealing with the same legal questions.” A precedent sets the tone for the cases that follow. It is important that a precedent is strong. A strong precedent allows for the courts to act accordingly and justly towards similar cases (Bianco and Canon, 2015).
The unfair prejudice petition has always been regarded as the easier and more flexible option for minority shareholders’ protection compared to the statutory derivative action. The restrictive leave requirements under the statutory derivative claim where the concept of prima facie, good faith and ratification have been interpreted within the confines of the origins in the case of Foss v Harbottle do not add any appeal the statutory derivative claim. Further, the approach in relation to granting indemnity costs orders which is rather limited does not in any way encourage any potential claimant to pursue a derivative action. Recent cases which allows corporate relief to be obtained via unfair prejudice petition and even the possibility if recovering costs under and unfair prejudice petition has further relegated the significance of the derivative action.
2. Compare and contrast tort and criminal law. What are some types of behavior that would be covered by both types of law? In criminal law, the indictment is by the legislature. Disciplines might be fines (paid to the administration) or the correctional facility. In tort law, the offended party who brings the claim is the individual who was specifically harmed and the discipline is normally installment of harms to the individual harmed. A few demonstrations of conduct that would be secured by both sorts of laws are whether some individual physically hit another person and intended to bring about damage on them that would
Law is a system of rules that has been set up by the legislative branch of our government. It is a must that every person in that country follow these laws, or severe consequences will be held against that person. In every court house legal systems are held. There are two common types of legal systems used, common law and civil law. Common law is used by countries that are from the British colonies, as this type of system was originated from England, when King Henry II wanted to combine the laws and customs together. Whereas, the countries that use civil law are from the European colonies (Common Law vs Civil Law,2009). Even though, both laws are commonly used, they differ in terms of the constitution, the jury’s opinion, the role of the
1. The difference between substantive law and procedural law is that substantive procedures actually create the legal rights of individuals and states. Procedural law instead is due process and enforces the laws created through carrying out the established rules. Remedies in civil lawsuits are damages and these include compensatory and punitive damages. Compensatory means actual payment of fines such as medical bills to injured party, whereas punitive is rarely carried out and more of a warning. Injunction means to do or not do something such as placing a restraining order on the defendant as a guilty party.
1.The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is clear way of distinguishing the ratio of a case…
According to Cornell University of Law, Criminal law involves prosecution by the government of a defendant for an act that has been classified as a crime. Civil cases, involve individuals and organizations seeking to resolve legal disputes. In criminal cases, the state, with attorney general of the state, bring forward the suit, compared in a civil case the victim brings the suit forward.
His next five laws are about how law is applied; agencies of the law must enforce the law using fair and equal processes. Therefore is is clear that formal theories focus on only procedures and application. The substantive theory of the rule of law, it is important to note that the rule of law is inherently cumulative, meaning it is concerned with the same principles as the formal theory of the rule of law, however adds to it by focusing on its content, substantive theorist believe that law’s content must be good in order to comply with the rule of law. Like Raz, Lord Bingham, the key advocate for the substantive theory, also has eight principles, however it is only his fourth principle that is substantive - “the law must afford adequate protection of fundamental human rights’’ It is evident that this principle is about the substance of law, the substantive theory goes further by explaining law must protect individuals and must not require us to breach our human
Criminal law refers to rules and statues that define conduct prohibited by the government because it endangers society. It prohibits and punishes wrongful actions. The plaintiff is the prosecutor who files the complaint and the defendant is the individual or organization who have appeared to broken the law. The purpose is to deal with the disputes between individuals and/or organizations, in which compensation is awarded to the victim. Almost always a jury is involved, who is a group of peers determining whether or not the accused is guilty.