Procedural law

Procedural law, also called ADJECTIVE LAW, is the law governing the machinery of the courts and the methods by which both the state and the individual (the latter including societies, whether incorporated or not) enforce their rights in the several courts. It prescribes the means of enforcing rights or providing redress of wrongs and comprises rules relative to jurisdiction, pleading and practice, evidence, appeal, execution of judgments, representation of counsel, costs, conveyancing and registration, and other matters. Procedural law is commonly contrasted with substantive law, which constitutes the great body of law and defines and regulates legal rights and duties.

It is sometimes said that the Anglo-American common-law procedure is adversarial, while the continental European civil-law procedure is inquisitorial. This means that, in the common law, a lawsuit is essentially the concern of the adversaries, that is, the parties and their lawyers. It is the lawyers who present the evidence, and, unless a procedural problem arises, the judge simply listens to the presentation. By contrast, in the civil law there is a greater emphasis on the judge as a guarantor of a just outcome of the case, regardless of the lawyers' abilities. To this end he often functions as an inquisitor, questioning the parties as to the factual matters of the case. In some countries, such as Germany, the judge is required to guide the proceedings — for instance, by suggesting to the parties that they direct their attention to a particular point of fact or law. These differences in procedure create problems when, for a lawsuit pending in a country of one system, it is necessary to obtain¹ evidence, located in a country of the other system. In such cases, «judicial assistance» must be given to the courts in one country by those in the other.

The climactic and decisive part of an Anglo-American civil action is the trial, in which the parties present their proof in a concentrated fashion. The climactic event in a lawsuit based on European codes is the hearing before the full court.

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Ответьте на вопросы.

1) What is the adjective law?

2) What does the procedural law prescribes?

3) How is procedural law contrasted with substantive law?

4)What is the difference between Anglo-American common-law procedure and European civil-law procedure?

5) Do these differences create problems?