The Legal Definition Procedure

Roman law had a great influence on European legal systems. In ancient times, Roman civil procedure applied to many countries. One of the main subjects of the procedure was actio (similar to the English word «act»). In the legislative procedure, the act contained both procedural and substantive elements. In the course of those proceedings, the praetor had granted or rejected a dispute by granting or refusing an act. With the granting of the actio, the praetor finally created claims. That is to say, a procedural act has given rise to claims on the merits. Such a priority (procedure on the merits) is in contradiction with what we think of the relationship today. But it wasn`t just a matter of priority and whether one serves the other. Since the measure was composed of procedural and substantive elements, it was difficult to separate the two parties. Substantive law, which concerns the factual claim and defence, the validity of which is examined by a procedural procedure, is distinct from procedural law.

The term «procedural law», as opposed to «substantive law», is available in different legal systems and languages. Similar to the English expressions, the Spanish words are derecho adjetivo and derecho material or derecho sustantivo, as well as the Portuguese terms for them, direito adjetivo and direito substantivo. Other ideas are at the origin of the German expressions droit formal (or droit procédural) and droit matérielle, as well as the French droit formel/droit matérielle, the Italian diritto formale/diritto materiale and the Swedish formalell rätt/materiell rätt; All of this means, taken literally, «formal» law and «substantial» law. The same contradiction is found in the Russian legal vocabulary with материальное право for substantive law and процессуальное право for procedural law. Similar to Russian, «материално право» means substantive right and процесуално право is used for proceedings. In Chinese, «procedural law» and «substantive law» are represented by these characters: «程序法» and «实体法». In Germany, the procedural and substantive unity of legal acts was definitively completed with the codification of the Bürgerliches Gesetzbuch (Civil Code, BGB), which entered into force on 1 January 1900. The term claim (§ 194 BGB) – meaning «claim» – has been «exempted» from the procedural elements. And it was the time of the «foundation» of the terms formal/substantive law. After World War II, however, the term formal law apparently proved to be «contaminated» and largely replaced by procedural law, limiting the underlying idea to «procedural law» (excluding, for example, the law of other proceedings and the law of jurisdiction).

Judicial proceedings in the broad sense also aim to allocate the resources of the judiciary in the best possible way. For example, in most general courts in the United States, criminal cases take precedence over civil cases because defendants lose their liberty and should therefore have the first opportunity to hear their case. The federal judicial system also has a system of rules of criminal procedure. The Code of Criminal Procedure differs from the Code of Civil Procedure in that it contains provisions relating to criminal investigations such as arrest; These include rules relating to grand juries and indictments; indictment and notification of defences; and specific issues relating to criminal proceedings. In the United States, the Rules Enabling Act of 1934 gives the «Supreme Court of the United States the power to prescribe, by general rules for the United States District Courts and for the courts of the District of Columbia, the forms of proceeding, briefs, pleadings, and petitions, and the practice and procedure in civil actions before the courts.» The result is the Federal Rules of Civil Procedure, which provide detailed guidance on how federal courts should conduct the administration of justice. Note, however, that the Federal Code of Civil Procedure applies only to civil actions and not to state rules of procedure. Each state follows its own system of civil procedure laws, many of which mimic or influence federal regulations.