Substantive law

What is Substantive Law?

Substantive law is the branch of law that defines the rights, duties,
obligations, and liabilities of individuals and entities in relation to each
other and the state. It also establishes the causes of action and the
remedies for violations of such rights and duties. Substantive law is
contrasted with procedural law, which is the set of rules and methods that
govern the application and enforcement of substantive law in courts and
tribunals.
Substantive law can be divided into two main categories: civil law and
criminal law. Civil law deals with the legal relationships between private
parties, such as contracts, torts, property, family, and succession. Criminal
law deals with the legal relationships between the state and individuals
who commit offences against the public order, such as murder, theft,
rape, and terrorism.
The sources of substantive law vary depending on the legal system and
jurisdiction. In common law countries, such as the United States, the
United Kingdom, and India, substantive law is derived from statutes
enacted by the legislature, judicial precedents established by the courts,
and customary law recognized by the society. In civil law countries, such
as France, Germany, and Japan, substantive law is mainly codified in
comprehensive codes that cover various fields of law, such as the civil
code, the criminal code, and the commercial code.
The purpose of substantive law is to provide a framework for the
regulation of human conduct and the protection of individual and
collective interests. Substantive law reflects the values, norms, and
principles of a society and its legal system. Substantive law also aims to
balance the competing interests of different parties and to achieve justice,
fairness, and social welfare.

Origin

Substantive law is the branch of law that defines the rights, duties,
obligations, and liabilities of individuals and entities in relation to each
other and the state. The term “substantive law” was first coined by
the English philosopher, jurist, and social reformer Jeremy
Bentham in his book “The Works of Jeremy Bentham” in 1843.
Bentham distinguished substantive law from adjective law, which is
another term for procedural law, the set of rules and methods that govern
the application and enforcement of substantive law.
Substantive law has a long and complex history, which can be traced back
to the ancient civilizations of Mesopotamia, Egypt, Greece, and Rome.
Substantive law evolved over time, influenced by various factors such as
culture, religion, politics, and technology. Substantive law also varied
depending on the type and level of the court, the nature and complexity
of the case, and the legal system of the country or state.

One of the earliest sources of substantive law is the Code of Hammurabi,

a collection of laws and judgments issued by the Babylonian king
Hammurabi in the 18th century BCE. The code regulated various aspects
of civil and criminal law, such as property, contracts, family, injuries, theft,
murder, and so on. The code also established the principle of lex talionis,
or the law of retaliation, which prescribed an eye for an eye, a tooth for a
tooth, as a form of justice.

Another ancient source of substantive law is the Egyptian Book of the

Dead, a compilation of spells and rituals that guided the deceased through
the afterlife. The book described the judgment of the dead, in which the
heart of the deceased was weighed against a feather of truth by the god
Anubis. If the heart was lighter than the feather, the deceased was
allowed to enter the realm of Osiris. If the heart was heavier than the
feather, the deceased was devoured by a monster called Ammit. The book
also provided instructions on how to prepare and present one’s case
before the divine tribunal, such as what to say, what to wear, and what to
offer.

The ancient Greeks also contributed to the development of substantive

law, especially in the fields of philosophy and democracy. The Greeks
invented the concept of natural law, which was a set of universal and
rational principles that governed human conduct and morality. The Greeks
also developed the concept of citizenship, which was a status that granted
certain rights and responsibilities to the members of a political
community. The Greeks also practiced direct democracy, which was a
form of government in which the people participated in making and
enforcing laws.

The most influential source of substantive law, however, is the Roman

law, which went through three phases: the pre-classical, the classical, and
the post-classical. The pre-classical phase, from the 8th to the 1st century
BCE, was characterized by a rigid and formal system of law, based on oral
pleadings and written formulas. The classical phase, from the 1st century
BCE to the 3rd century CE, was marked by a more flexible and rational
system of law, based on the principles of natural law and equity. The post-
classical phase, from the 3rd to the 6th century CE, was dominated by a
simplified and pragmatic system of law, based on the authority of the
emperor and the jurists.

The Roman law had a lasting impact on the substantive law of many
countries, especially in Europe and Latin America. The Roman law was
preserved and transmitted by the Byzantine Empire, which codified it in
the Corpus Juris Civilis, a collection of laws and commentaries issued by
the emperor Justinian in the 6th century CE. The Corpus Juris Civilis
became the basis of the civil law tradition, which is followed by most
countries in the world today. The civil law tradition emphasizes the role of
legislation and codification, as well as the importance of written and oral
procedure.

The Roman law also influenced the common law tradition, which is
followed by some countries, such as the United Kingdom, the United
States, and the Commonwealth nations. The common law tradition traces
its origins to the Anglo-Saxon law, which was a mixture of Germanic
customs and Roman principles. The common law tradition emphasizes the
role of precedent and case law, as well as the importance of adversarial
and inquisitorial procedure.
Substantive law continues to evolve and adapt to the changing needs and
expectations of the legal community and the society at large. Substantive
law also reflects the values and principles of a legal system, such as due
process, equality, impartiality, and access to justice. Substantive law is
essential for ensuring that the legal system is fair, efficient, and
consistent, and that the rights and obligations of individuals and collective
bodies are enforced.

Types of Substantive law

Substantive law can be divided into two main categories: civil law and
criminal law.

1. Civil law deals with the legal relationships between private parties,
such as contracts, torts, property, family, and succession. Civil law
covers various fields and areas of law, such as contract law, tort law,
property law, family law, and succession law. For example, contract
law governs the formation, performance, breach, and termination of
agreements between parties. Tort law deals with the civil wrongs
committed by one party against another, causing harm or injury.
Property law regulates the ownership, possession, use, and transfer
of tangible and intangible things. Family law deals with the legal
aspects of family relationships, such as marriage, divorce, child
custody, adoption, and inheritance. Succession law determines the
distribution of property and assets among family members after the
death of a person.
2. Criminal law deals with the legal relationships between the state
and individuals who commit offences against the public order, such
as murder, theft, rape, and terrorism. Criminal law defines the
offences against the state and the society, and the sanctions for
such offences. Criminal law specifies the elements of a crime, such
as actus reus (the guilty act), mens rea (the guilty mind), and
causation. Criminal law also prescribes the types and degrees of
 punishment, such as imprisonment, fine, probation, and death
penalty.

Substantive law can be codified or uncodified. Codified substantive law is

the law that is written and enacted by the legislature, such as statutes,
codes, and ordinances. Uncodified substantive law is the law that is not
written or enacted by the legislature, but is recognized by the society or
the courts, such as customary law and judicial precedents.
Substantive law is contrasted with procedural law, which is the set of rules
and methods that govern the application and enforcement of substantive
law in courts and tribunals. Procedural law ensures that substantive law is
applied fairly and properly, and that the parties have access to justice and
due process of law. Procedural law also facilitates the administration and
efficiency of the legal system.

Importance of substantive law

 Substantive law provides a framework for the regulation of human

conduct and the protection of individual and collective interests.
Substantive law reflects the values, norms, and principles of a
society and its legal system. Substantive law also aims to balance
the competing interests of different parties and to achieve justice,
fairness, and social welfare.
 Substantive law defines the legal context of any case, such as how
the case will be handled and what the possible outcomes are.
Substantive law helps the parties to understand their rights and
responsibilities, and to assess their legal position and options.
Substantive law also guides the judges and lawyers in applying the
law to the facts and resolving the disputes.
 Substantive law covers various fields and areas of law, such as
contract law, tort law, property law, family law, criminal law,
constitutional law, administrative law, and international law.
Substantive law deals with diverse and complex issues and
situations that arise in the society and the world. Substantive law
also evolves and adapts to the changing needs and circumstances
of the society and the world.
 Substantive law is the basis of procedural law, which is the set of
rules and methods that govern the application and enforcement of
substantive law in courts and tribunals. Procedural law ensures that
substantive law is applied fairly and properly, and that the parties
have access to justice and due process of law. Procedural law also
facilitates the administration and efficiency of the legal system.

Therefore, substantive law is an essential and integral part of the law, and
it plays a vital role in the legal system and the society.
Some examples of substantive law are:

 Contract law: This is the branch of civil law that governs the
formation, performance, breach, and termination of agreements
between parties. Contract law defines the essential elements of a
valid contract, such as offer, acceptance, consideration, and
intention. Contract law also provides the remedies for breach of
contract, such as damages, specific performance, injunction, and
rescission.
 Tort law: This is the branch of civil law that deals with the civil
wrongs committed by one party against another, causing harm or
injury. Tort law imposes a duty of care on parties to avoid causing
harm to others. Tort law also provides the remedies for tortious
acts, such as damages, injunction, and restitution.
 Property law: This is the branch of civil law that regulates the
ownership, possession, use, and transfer of tangible and intangible
things. Property law distinguishes between real property (land and
buildings) and personal property (movable goods and intangible
rights). Property law also defines the types of property rights, such
as fee simple, leasehold, easement, and mortgage.
 Family law: This is the branch of civil law that deals with the legal
aspects of family relationships, such as marriage, divorce, child
custody, adoption, and inheritance. Family law sets the rules and
procedures for the formation and dissolution of marriage, the rights
and obligations of spouses and parents, and the distribution of
property and assets among family members.
 Criminal law: This is the branch of law that defines the offences
against the state and the society, and the sanctions for such
offences. Criminal law specifies the elements of a crime, such as
actus reus (the guilty act), mens rea (the guilty mind), and
causation. Criminal law also prescribes the types and degrees of
punishment, such as imprisonment, fine, probation, and death
penalty.

Conclusion
In conclusion, substantive law is an essential and integral part of the law,
and it plays a vital role in the legal system and the society. Substantive
law provides a framework for the regulation of human conduct and the
protection of individual and collective interests. Substantive law defines
the legal context of any case, such as how the case will be handled and
what the possible outcomes are.
Substantive law covers various fields and areas of law, such as contract
law, tort law, property law, family law, criminal law, constitutional law,
administrative law, and international law. Substantive law is the basis of
procedural law, which is the set of rules and methods that govern the
application and enforcement of substantive law in courts and tribunals.
Substantive law evolves and adapts to the changing needs and
circumstances of the society and the world. Substantive law is contrasted
with procedural law, which is the set of rules and methods that govern the
application and enforcement of substantive law in courts and tribunals.
Procedural law ensures that substantive law is applied fairly and properly,
and that the parties have access to justice and due process of law.
Procedural law also facilitates the administration and efficiency of the
legal system.