(Dr. Gernot Biehler, University of Dublin School of Law 39 Trinity College Dublin 2 Ireland; biehlerg@tcd.ieISBN 978-3-540-74497-9 e-ISBN 978-3-540-74499-3; DOI: 10.1007/978-3-540-74499-3; Library of Congress Control Number: 2008934037; © 2008 Springer-Verlag Berlin Heidelberg)
Part of : Chapter 1
A Procedural Perspective in Law
Procedural and substantive law are in a special relationship. Legal procedures help to decide on the merits of bringing an action. Procedures make law real. This is expressed in the equitable maxim that where there is a wrong there is a remedy,1 a maxim which is equally supported by the civil law doctrine of bona fide. This means that where there is an injustice, there should be a procedure to remedy it.
Put another way, where there is a legal right there should be a way to give effect to it. This can occur through various means such as court proceedings, arbitration, ombudsmen, tribunals, special commissions or committees. However, this basic relationship between law and procedural remedies seems well recognised: “A right without a remedy for its violation is a command without a sanction, a brutum fulmen; i.e., no law at all.”2
The focus of most lawyers is primarily on substantive law. Procedural law is understood mainly as an ancillary subject and is particularly relevant to those determining and enforcing the law in practice. Procedural law in any jurisdiction regulates the hierarchical structure of the courts and the court of final appeal and their proceedings, the decisions of which are generally binding. Procedures are usually also laid down for the enforcement of court decisions.
While most lawyers focus mainly on substantive law and understand procedural law as an ancillary subject rarely worthy of too much attention, the perspective shall be different in this inquiry. A change in perspective may shed a different light on known facts. There is nothing essentially new to be discovered here and this study rather highlights known but hitherto less appreciated legal structures. It is suggested that the analysis of the relationship between substantive laws and those procedures which determine them and provide a basis for their later enforcement is extremely fertile as it may help to disclose properties not least of international law which it may be useful to ascertain. Some simple relationships between the law on the merits and legal procedures shall be examined first, preced-1 Delany, Hilary, Equity and the Law of Trusts in Ireland (4th ed., Thomson Round Hall, 2007) formulates at p. 13 under the heading “Equity will not suffer a wrong to be without a remedy”, “that equity will intervene to protect a recognised right which for some reason is not enforceable at common law”.
2 Chamberlayne, Evidence (1911) para. 171 quoted in Walter Wheeler Cook, “‘Substance’
and ‘Procedure’ in the Conflict of Laws” (1932-1933) 42 Yale LJ 333, 336, footnote 10.
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ing the following more conventional legal considerations. These prolegomena shall be introduced by the following observation: that law3 cannot exist without procedures; procedures cannot exist without law.
Any law which is not determined and applied procedurally remains in the realm of general statements, principles or maxims. In such a state its place in academia would be with philosophy, theology or social sciences which would not merit its own School or Faculty of Law. It is ultimately the decision in any given case or issue which determines what the law is; extracted from the differing assumptions of the parties and the more philosophical and abstract reasoning of right or wrong, justice, law and equity the definite, defined and defining structures of law emerge.
It is this ability to decide which distinguishes the law from all other academic or professional disciplines, severing it partly from the claim to partake essentially in the search for eternal truth(s) (as other sciences and arts endeavour) but providing it with an essential importance for all spheres of life. This makes law unique in character between an art and a profession exemplified both by those pursuing a professional career and those endeavouring to inquire into the nature of law with equal benefit to the subject. It is this capacity to make decisions which is inherently procedural. This quality of legal procedures, of giving effect to a decision, provides substantive law with its special importance as the standard according to which the case is to be decided. It is only by procedurally applying it that law is determined, possibly enforced and made real. Law may be only perceived through its procedures, which means that it cannot exist without them. It surfaces only from the realm of the indeterminate when proceeding to decide. The distinction between procedure and substantive law is one of the most interesting consequences of our attitude towards an independent judiciary. Law is fundamental, everlasting
through the rule of stare decisis4 and almost sacred. It represents the experience of ages. On it is based the freedom of the individual. Procedure on the other hand is perceived as entirely practical. It is based on the experiences of ages too but age with procedures is considered often as senility rather than wisdom.5
There is nothing like stare decisis; for procedural rules there is no stare dictum rule, it is rather practical utility, convenience for the court and discretion about the standards around which they revolve.
Obviously procedures cannot exist without law as otherwise nothing could be applied to the facts brought before a forum. It is the tool that makes law real and there is no other means to effect this.
3 While considering the relationship between law and procedure, law is understood as law on the merits or substantive law as opposed to procedural law which does not provide
rules to decide the ultimate conflict between the parties but rather provides the procedure as to how to come to this decision.
4 See Trendtex Corporation v Central Bank of Nigeria [1977] 1 All ER 881 on the exceptions to the stare decisis rule in international law.
5 Thurman Arnold “The Role of Substantive Law and Procedures in the Legal Process” (1931-1932) 45 Harv L Rev 617, 644.
A Procedural Perspective in Law 3
Historically, this intimate relationship between law and procedure was institutionalised when procedures were introduced to determine and enforce the law. Judicial institutions were originally established by what we would now call the sovereign.
6 This source of courts and their procedure is particularly visible in some traditional monarchies where decisions are handed down in the name of the monarch who may be referred to as the sovereign too. In those judicial formulas the idea is preserved that it is the sovereign who decides and the activity of the courts is advisory to this.
For the legal tradition in the English speaking world unified by the traditions of the common law the cradle for this development lies in the Curia Regis established by William the Conqueror. In his reign the highest court of judicature was the Curia Regis, over which the King himself frequently presided. Its members were the prelates and barons of the realm, and certain officers of the palace. Of these the principal officer was the Chief Justiciary, who in the King’s absence was the ruling judge. This office continued until the reign of Henry III, a period of two hundred years, when its judicial functions were transferred to the Chief Justice of the King’s Bench. From there the development into the modern courts took its course,7 however, its historical source which is the Curia Regis was notionally preserved, for example, in the Privy Council which may be taken as a literal translation from Latin into English. The latter decides right up to today with the formula “As it is, their Lordships will humbly advise Her Majesty that the appeal should be dismissed”8 indicating the source of legal proceedings and that the power to decide is that of HM, the Sovereign.
More abstract notions of sovereignty usually preferred by states with a less traditional constitutional structure would nevertheless allow state authority to be identified as the source of court decisions while using formulas in their courts’ decisions such as “In the Name of the People”, when, for example, “the People” is understood to be the ultimate source of the State’s power, in short the sovereign.
The same may be said for the formulas found in Muslim countries often referring to Allah as the source of authority for court decisions (“In the name of Allah etc.etc.”). By their constitutional understanding Allah is the ultimate source of power in the State. All this would fit in neatly with the original definition of sovereignty
provided by Bodin: “The sovereign is high above all subjects. His majesty does not permit any division and incorporates the idea of unity in a State.”9
6 Biehler, International Law in Practice (Thomson Round Hall, 2005) p. 28 et seq. on the notion of sovereignty in law which will be relevant in the further course of the inquiry.
7 Taken from the instructive Preface of Edward Foss, A Biographical Dictionary of the Judges of England from the Conquest to the Present Time 1066-1870 (London, John Murray, Albemarle Street, 1870) p. vi.
8 R v A-G for England and Wales (New Zealand) [2003] UKPC 22, 17 March 2003, para.37.
9 Bodin, Jean, Six Livres de la Republique, Book VI, para. 1056; Biehler, op.cit. p. 28 et seq.
4 Chapter 1: A Procedural Perspective in Law This link between legal procedures and state authority or sovereignty may be crucial in understanding some properties and specificities of legal procedures.
Law may hardly be conceived without sovereignty10 or the power of the State which is often condensed in notions, such as jurisdiction or competency. A closer examination shows that it is less the law itself but rather the legal procedure provided to determine and enforce the law (or not) which must be classified in this way. To use the broad meaning of sovereignty encompassing all the power and authority of the State, whether understood as historically personified or in the abstract, it is by the sovereign that law is administered (or not). It is his, her or its (whatever the national constitutional personification of sovereignty provides for) public authority which renders decisions of the courts binding. Legal procedures are an emanation of state authority and they are understood as such. They form part of a country’s constitutional structure and partake in the nature of any exercise of state authority; as with the other branches of government they are administered by an hierarchically organised governmentally financed structure handing down binding decisions and operating non discretionary procedures for those subject to them. It is the procedure which determines the properties of any court of law. This not only distinguishes procedures from substantive law, which is usually applied equally among those who are legally equals, subject to a wide discretion of the parties, for example, in the choice of law, but links it to other core activities of a state in the exercise of public authority.
1.1 Law and Procedure
The fact that law is reflected in its procedures helps to both determine and enforce it. The objective of this section is to examine whether there are any unique characteristics of legal procedures as opposed to the body of substantive law, or anything unique about the content or character of procedural principles and rules that render them suitable to shed some specific light on parts of the law, notably in the international context. Substantive law can be seen through legal procedures. To reflect law through its procedures is an unusual perspective. There is a general understanding that law is the body of rules which determines our behaviour. Legal procedure comes in only in the rare event when this behaviour deviates from the rules which necessitate determining and possibly enforcing the law. The law may be understood as the relevant part in this equation while procedures just facilitate it.
However, a slightly more detailed examination of both will tell us more. Legal theory has it that law may be entirely determined through its procedures; Kelsen writes “Law is the primary norm which stipulates the sanction”.11 This 10 The notion of sovereignty still focuses on many of the notions like “jurisdiction”, “competency”, “independence of the judiciary” or just “power” in an unmatched way, Biehler, International Law in Practice (Thomson Round Hall, 2005) p. 28.
11 Kelsen, Hans General Theory of Law and State (Harvard University Press, 1949) p. 2.
1.1 Law and Procedure 5 view does not, for example, recognise a prohibition against murder but understands as law only the rule which directs the authorities to apply certain sanctions in certain circumstances to those who commit murder.12 It is the order to apply sanctions which is seen as law and the legal sanctions or order may be seen as procedure in themselves. Indeed, every rule of law can be rephrased to suit Kelsen’s perspective.13 What is usually thought of as the content of law, designed to guide the conduct of people is here merely the antecedent or “if-clause” in a rule which orders someone to apply certain sanctions if certain conditions are satisfied.
All genuine laws, according to this view, are conditional orders to apply sanctions. They are all in the form; “if anything of a certain kind happens then apply the appropriate sanction.” The overwhelming experience so important for international law14 that most people in most circumstances observe the rule without even the remotest consideration of sanctions to coerce them is not encompassed by this view. In addition, there may be many more shortcomings of this particular perspective on law summarised by Hart under the heading of “distortion as the price of uniformity”.15 However, these shortcomings are not of interest here. Kelsen’s view merely shows that all laws may be seen and potentially explained from the perspective of the possible sanctions they incur. This view of the law is one possible perspective and may facilitate a better understanding of certain parts of the law notably international law. It is well supported by doctrine as this quotation shows: “A right without a remedy for its violation is a command without a sanction, a brutum fulmen; i.e., no law at all.”16
Short of concluding that sanctions are procedure it may be said that sanctions involve procedures. There are no sanctions without a procedure. Legal sanctions are closely linked to legal procedures. Procedures may comprise more than just determining and enforcing the law. However, determining and enforcing the law is the core function of any legal procedure.
To sum up; law becomes effective when determined and enforced through a procedure potentially leading to a sanction. Possibly, only law which may be potentially determined and enforced through a procedure is law in the strict sense of Kelsen’s approach. From this it follows that it is possible to see laws through procedures which determine their contents in terms of certain sanctions or consequences.
12 Example taken from Hart, The Concept of Law (OUP, 1994) p. 35 et seq.
13 Hart, op.cit. at pp. 36 and 38 gives some examples.
14 Lowe, Vaughan, International Law (OUP, 2007) p. 18.
15 Hart, op.cit. at p. 38 et seq.
16 Chamberlayne, Evidence (1911) para. 171 quoted in Walter Wheeler Cook, “‘Substance’
and ‘Procedure’ in the Conflict of Laws” (1932-1933) 42 Yale LJ 333, 336, footnote 10.
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