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Thursday, March 26, 2020

We Need Rights, And We Need A Procedure To Get Our Rights In Case Of Violations

Law has two aspects: a procedural part, and a substantive part. 

According to Albert Kocourek, a well known jurist, the pairs of terms, Substantive Law and Procedural Law, and Substance and Procedure, are not synonymous. The first pair of terms is useful in a classification of the law, while the second pair of terms is limited to a determination of the rights of the parties, in litigation.

In his paper, Prof. Kocourek concludes that there is a clear logical distinction between "substance" and "procedure". There is no intermediate zone which affects the conceptual clarity of either of the terms, or the line of distinction between them. In the administration of justice in courts, this clarity was sometimes difficult. Also, historically it may have emerged as a generalization of practical experience, but in the background of human experience and cerebration, like other valid logical categories, it remains wholly independent of experience or application. English and American courts have, in the main, applied the distinction with remarkable logical consistency.

In Gacek vs. American Airlines, the judgement reads thus:
"A substantive law is one motivated by a desire to influence conduct outside the litigation process, such as a desire to deter accidents, while a procedural law is one motivated by a desire to reduce the cost or increase the accuracy of the litigation process, regardless of the substantive basis of the particular litigation." 
Substantive and procedural aspects both go hand in hand in law. Without one, the other would be meaningless and cannot be claimed or enforced. As much as it is a necessity to strengthen substantive laws that give the rights and obligations, equally important is the necessity to have a feasible and foolproof procedural law that can ensure such rights. For example, during an empirical study conducted by me and my friends for a Criminal Law project, we found that the gross under-reporting of cases are directly connected with the long and faulty loopholes in the procedural law for crimes for certain natures. Even though there is a substantive right and remedy available, they are not attainable due to the procedural lapses.

And, therefore, I conclude, that it is important to remember again that law has two aspects, and one cannot do without the other.


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