Use Sophia to knock out your gen-ed requirements quickly and affordably. Learn more
Become a Member Try for Free
×

Substantive vs. Procedural Law

Author: Sophia
PDF Version

what's covered
In this lesson, you will learn about substantive and procedural law. Specifically, this lesson will cover:

Table of Contents

1. Substantive Law

Substantive law defines the rights and duties of individuals and entities, to determine the legal consequences of their actions and establish a framework for governing behavior. This sets what behavior is permissible and what is not and ensures that people know about their rights and responsibilities, to promote fairness and accountability within the legal system. Substantive law is found in statutes, constitutions, and case law. Substantive law encompasses a wide range of law (Cornell Law School, 2019):

  • Criminal law
  • Civil law
  • Constitutional law
  • Others
In criminal law, substantive law defines what constitutes a crime and the penalties that may be imposed upon conviction. Criminal statutes outline the elements of each offense, such as the act (actus reus) and the intent (mens rea) required to establish guilt (University of Minnesota, 2015).

Review this table from the Legal Information Institute for more information on the levels of mens rea:

Level Definition Example
Purposefully Purposefully is the highest level of mens rea and means that the person has a clear objective to cause a particular result. While acting purposefully, the person acts with the conscious desire to achieve a specific outcome. Purposefully is considered the most focused and deliberate form of intent. If a person sets fire to a home with the specific objective of burning it down, then the person purposefully starts the fire intending to burn down the entire home.
Intentionally The level of intentionally is very similar to the level purposefully. In fact, these terms are often used interchangeably. Intentionally involves a deliberate action where the person performs acts knowing that certain results are likely to occur. Intentionally reflects a conscious decision to engage in certain conduct, knowing the likely outcome. If a person sets fire to an attached garage, knowing it is likely to burn down the entire house, the objective may not have been to destroy the entire house, but it is likely to happen. The person intentionally started the fire to cause damage but didn’t necessarily intend to burn down the entire house.
Recklessly At this level of mens rea, a person should be aware of their actions causing a substantial risk of a particular result, but the person chooses to disregard that risk. A person sets fire to a pile of leaves in their yard, not far from their neighbor’s house. The wind is blowing strong, but the person needs to finish this project by sundown. The person recognizes the risk but is not able to control the fire in the strong wind. As a result, the neighbor’s house catches fire and burns to the ground. The person knew that a risk was present but ignored the possibility of anything actually happening. They acted recklessly.
Negligently This is generally the lowest level of mens rea. When a person acts negligently, they fail to see the substantial risk of harm created by their actions. The failure to recognize this risk deviates from the basic standard of care expected of a reasonable person. A person is burning trash behind their home in a barrel appropriate for burning. Inside the trash is a combustible can of spray paint. The person failed to read the label and didn’t know that burning the can would create an elevated risk of an explosion. As a result, the can exploded and caused a fire that spread quickly across the yard toward the home. There was no intent to cause harm or a reasonable belief that the actions would lead to some type of harm. The person acted negligently.

Substantive civil law also addresses the rights and duties of private individuals or entities.

  • In contract law, substantive law governs the creation and enforcement of agreements. It outlines the essential elements of a contract and defines what constitutes a breach of contract.
  • In tort law, substantive law specifies the elements required to prove negligence or intentional harm, such as duty, breach, and damages (Cornell Law School, 2019).
Another important area is substantive constitutional law, which involves the interpretation and application of constitutional rights. Substantive constitutional law establishes fundamental rights, such as:
  • Freedom of speech
  • Due process
  • Equal protection under the law
Constitutional substantive law serves as a limit on government power, ensuring that laws and government actions do not violate the individual rights protected by the Constitution (Constitution Annotated, 2024).

term to know
Substantive Law
A law that defines the legal rights and duties of individuals and entities, including laws that govern behavior and determine the legal consequences of actions.

2. Procedural Law

Procedural law governs the process used to investigate and prosecute an individual who commits a crime. Procedural law also governs the ways a person convicted of a crime may challenge their convictions. The sources of procedural law include the same sources that govern substantive criminal law: the Constitution, case law or judicial opinions, statute, and common law.

Whereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions that interpret the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution, the U.S. Code, and the state constitutional and legislative counterparts.

IN CONTEXT

Generally, the federal and state constitutions set forth broad guarantees.

EXAMPLE

The right to a speedy trial.

Then, statutes are enacted to provide more definite guidelines.

EXAMPLE

The Federal Speedy Trial Act.

Then, judges interpret the meaning of those guarantees and statutes in their court opinions.

Procedural law applies to every point in the criminal justice process, which can be broken down into five phases:

  1. Investigative phase
  2. Pre-trial phase
  3. Trial phase
  4. Sentencing phase
  5. Appellate or post-conviction phase
Let’s look closer at each phase:
Phase What happens in this stage of the criminal justice process?
Investigative Phase The investigative phase is governed by laws covering:
  • Searches and seizures
  • Interrogations and confessions
  • Identification procedures (like line-ups)
This phase mostly involves what the police are doing to investigate a crime. However, when police apply for a search, seizure, or arrest warrant, “neutral and detached” magistrates (or judges) must decide whether probable cause exists to issue search warrants, arrest warrants, and warrants for the seizure of property.

They must also decide whether the scope of the proposed warrant is supported by the officer’s statement. When an individual is arrested without a warrant, judges will need to promptly review whether there is probable cause to hold them in custody before trial.
Pre-trial Phase The pre-trial phase is governed by laws covering:
  • Initial appearance of the defendant before a judge or magistrate
  • Securing of defense counsel
  • Arraignment process
  • Selection and use of a grand jury or preliminary hearing processes
  • Pre-trial motions
During this phase, prosecutors and defendants may engage in plea bargaining and will generally resolve the case before a trial is held.
Trial Phase The trial phase is governed by procedural laws covering:
  • Speedy trial guarantees
  • Selection and use of trial jurors
  • Rules of evidence
  • Right of the defendant to cross-examine any witnesses or evidence presented by the government
  • Fair trials free of prejudicial adverse pre-trial or trial publicity that are open to the public
  • Right of the defendant to have the assistance of counsel, and to be present, during their trial
Sentencing Phase The sentencing phase is governed by rules and laws concerning:
  • Constitutionality of different punishments
  • Period in which a defendant must be sentenced
  • Any victims’ rights to appear and make statements at sentencing
  • Defendant’s rights to present mitigating evidence and witnesses
  • Defendant’s continued rights to the assistance of counsel at sentencing
Post-Conviction Phase The post-conviction phase is governed by rules and laws concerning:
  • Period in which direct appeals must be taken
  • Defendant’s right to file appeals
  • Defendant’s right to have the assistance of counsel when filing appeals
The post-conviction phase is also governed by rules and laws concerning the defendant’s ability to file a writ of habeas corpus, a civil suit against the entity holding the defendant in custody. The post-conviction phase also includes any probation and parole revocation hearings.

terms to know
Procedural Law
A set of rules and processes that govern how legal cases are conducted in courts, including the methods for enforcing rights and obligations in both civil and criminal matters.
Writ of Habeas Corpus
A legal order requiring that a person detained or imprisoned be brought before a court to determine whether their detention is lawful.

summary
In this lesson, you learned about substantive law, which defines the rights, duties, and legal consequences for individuals and entities. This establishes the framework for permissible behavior and promoting fairness and accountability in the legal system, and covers a wide range of areas, including criminal law, where it outlines the elements of offenses and determines penalties based on the severity of the crime. In civil law, substantive law governs issues such as contracts and torts, specifying the elements required to prove breaches or negligence. Moreover, substantive constitutional law ensures that individual rights are protected, acting as a check on government power.

You also learned about procedural law, which governs the processes by which crimes are investigated, prosecuted, and challenged in court. This originates from constitutional provisions, statutes, and judicial opinions, especially those interpreting the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Procedural law covers the entire criminal justice process, from investigation to post-conviction, ensuring that each step follows legal procedures and protects the rights of the defendant.

In the criminal justice process, procedural law applies during five key phases: investigation, pre-trial, trial, sentencing, and post-conviction. During these phases, rules govern actions like police investigations, warrants, plea bargaining, jury selection, the right to counsel, sentencing, and the appeals process. Procedural law also ensures that individuals can challenge their convictions through appeals or habeas corpus petitions, maintaining fairness and constitutional protections throughout the process. In the next lesson, you will learn more about the United States Constitution.

Source: THIS TUTORIAL HAS BEEN ADAPTED FROM Open Washington’s “Introduction to the U.S. Criminal Justice System. ACCESS FOR FREE AT OPEN WA LICENSE:CREATIVE COMMONS ATTRIBUTION 4.0 INTERNATIONAL.

REFERENCES

Cornell Law School. (2019). Substantive law. LII / Legal Information Institute. www.law.cornell.edu/wex/substantive_law

University of Minnesota. (2015). Criminal Elements. Open.lib.umn.edu. University of Minnesota Libraries Publishing edition, 2015. December 17, 2015. open.lib.umn.edu/criminallaw/chapter/4-1-criminal-elements/

Legal Information Institute. (n.d.). Mens rea. Cornell Law School. www.law.cornell.edu/wex/mens_rea

Constitution Annotated. (2024). Analysis and interpretation of the U.S. Constitution: Amendment VII. Civil trials (Intro.7.2.4). U.S. Congress.constitution.congress.gov/browse/essay/intro-7-2-4/ALDE_00000033/

Terms to Know
Procedural Law

A set of rules and processes that govern how legal cases are conducted in courts, including the methods for enforcing rights and obligations in both civil and criminal matters.

Substantive Law

A law that defines the legal rights and duties of individuals and entities, including laws that govern behavior and determine the legal consequences of actions.

Writ of Habeas Corpus

A legal order requiring that a person detained or imprisoned be brought before a court to determine whether their detention is lawful.

© 2025 SOPHIA Learning, LLC. SOPHIA is a registered trademark of SOPHIA Learning, LLC.