Substantive Law, Procedural Laws and Judicial Review – USA and UK

There are various similarities and differences between laws and the judiciary systems of the United States and the United Kingdom. This paper looks at these in terms of substantive and procedural laws as well as judicial review.

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Substantive Law

Substantive law is the laws that determine how a society behaves. The law includes civil and criminal laws. Civil law encompasses rights and responsibilities while criminal law encompasses crimes and punishments. Substantive law refers to the actual claims and defenses and is captured in statutes and precedents (McDonald, 2000).

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In the United States, both civil and criminal cases go through the same court system at the federal levels; with federal courts having precedence over state courts. In most states, there are usually different courts for civil and criminal cases. Cases will proceed from the magistrate courts, district courts, appeals courts and on to the Supreme Court.

This is akin the United Kingdom, though there are separate courts for civil and criminal cases throughout. Civil cases are handled at the magistrate and county courts while criminal cases are handled at the magistrate and Crown courts. More serious cases of both civil and criminal nature proceed to different divisions of high, appeal and Supreme courts (McIntyre, Farmer and Deacon, 2015). The United Kingdom also has the tribunal system that is not present in the United States court system.

Both the United States and the United Kingdom rely on past decisions as authoritative precedents for litigation. These are referred to as “opinions” or “cases” in the United States and “law reports” in the United Kingdom. Apart from precedents, the United States relies on the Congress for legislation while the United Kingdom relies on the House of Parliament (McIntyre, Farmer and Deacon, 2015).

Procedural Law

Procedural law is the procedures for making, administering and implementing substantive law.  It includes how a court hears and rules on proceedings: civil, criminal or administrative. Procedural law sets the rules to determine validity of claims and defenses in substantive law (McDonald, 2000).

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In the United States, procedural law is guided by due process of the Constitution while in the United Kingdom it is guided by fundamental justice of common law. So while procedural law in the United States aspires to ensure fairness and consistency of due process, in the United Kingdom it strives towards fundamental justice.

Laws in the United Kingdom, like in many other European countries, have been greatly influenced by the Roman laws. This includes the issue of the procedural “actio”, where the substance of procedural and substantive laws is united, with the existence of procedure determining existence of substantive. While this unity of the laws was evident in the English system of writs, it is now non-existent; both in the United Kingdom and the United States(McDonald, 2000).  

Judicial Review

The judiciary can reviews executive and legislative actions. This process, known as judicial review, may involve a court invalidating the executive decision or legislative statute for being unlawful or violating a written constitution.

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Judicial review is one of the enablers of democracy through separation of powers of the three arms of government: executive, legislative and judiciary. It empowers the judiciary to supervise the other two government estates when they exceed their powers.

Judicial review differs from country to country. In the United States, judicial review is viewed as a key check and balance in the separation of government powers; putting in check the executive and the legislature. However, in United Kingdom that practices common laws, the legislative actions are supreme. Hence, the judiciary does not have the powers to overturn primary legislation (Syam, 2014).

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A similarity in judicial review between United States and United Kingdom (England and Wales) is in reviewing of administrative acts and secondary legislation that is carried out by regular civil courts. This is unlike in some countries that have set up special administrative courts (e.g. France and Germany). Hence, in the United States, disputes among members of the public and the administration are resolved by district courts, courts of appeal and also specialized tribunals; depending on the administrative decisions.

Conclusion

Traditionally, laws and the judicial systems of United States and the United Kingdom have been tied, with similarities arising from their shared history. Many of these similarities remain but there have evolved many differences. The law of precedence is one of the major similarities that remain while a marked difference is the development of a written Constitution in the United States while United Kingdom is still rooted in common law.

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