SUBSTANTIVE AND PROCEDURAL LAW

To many persons, especially to those theorists who maintain that there are no rights but rights of action, the law of procedure, or, rather, the law of actions, is the most important part of the system. It is not easy to think of it as merely the machinery by which the real law, the substantive law, is put into operation. Thus it comes about that our earliest legal text-book of any importance, Glanvill's, though called a Treatise on the Laws and Customs of England, is mainly concerned with procedure. In modern times J. D. Mayne states a great part of the substantive law in a treatise on damages, i.e. he regards a man's right as, essentially, what can be recovered by litigation. So too Henry Roscoe in the same way states a great mass of substantive criminal law in a work entitled The Law of Evidence and Practice in Criminal Cases. There is nothing new in this: it is indeed the primitive way of looking at law. Chapter xi of Maine's Early Law and Custom is a demonstration of the fact that in all early communities the procedure dominates the law and that (p. 389) ‘substantive law has at first the look of being gradually secreted in the interstices of procedure’; the XII Tables begin with, and appear to deal most fully with, procedure.