Keith Mack
Substantive law is the set of laws that govern how members of a society are to behave. It defines rights, duties, obligations, and causes of action that can be enforced by law. In the UK, which is divided into three main jurisdictions (England and Wales, Scotland, and Northern Ireland), each with its own laws, court system, lawyers, and judges, substantive law can be found in criminal codes or federal codes. These codes define specific crimes and set forth the elements of each crime that the government must prove beyond a reasonable doubt to convict a defendant. Substantive law also covers inchoate liability, where a person can be found guilty for the acts of another, and accomplice liability, where accomplices are treated as equally liable as the main perpetrator.
| Characteristics | Values |
|---|---|
| Definition | Substantive law is the set of laws that govern how members of a society are to behave. |
| Comparison with Procedural Law | Substantive law defines rights, duties, and responsibilities in civil law, and crimes and punishments in criminal law. Procedural law, on the other hand, governs the procedures for making, administering, and enforcing these laws. |
| Sources | Substantive law may be codified in statutes or exist through precedent in common law. |
| Criminal Law | Substantive criminal law describes when a person can be found guilty for the acts of another, including accomplice and accessory liability. |
| Equality and Due Process | Substantive law covers concepts of substantive equality and substantive due process, ensuring fairness and justice. |
| Rights and Duties | Substantive law creates and defines rights, duties, and obligations that can be enforced by law. |
| Jurisdiction | Substantive law can determine whether state or federal law applies in diversity jurisdiction cases under the Erie Doctrine. |
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What You'll Learn
Substantive law and common law
Substantive law refers to the actual legal rules and principles that govern behaviour and define rights and responsibilities in civil law and crimes and punishments in criminal law. It is contrasted with procedural law, which outlines the steps for making, administering, and enforcing substantive law. Substantive law can be codified in statutes or derived from precedent in common law.
Common law, also known as case law or precedent, is a legal system that gives past court decisions binding authority on future decisions involving similar cases. It is based on the principle of stare decisis, which means "to stand by things decided." Under common law, when a court decides a case, the judgement becomes a part of the body of law, influencing future decisions on similar cases.
Common law systems rely on written records of past cases, often in the form of law reports, to guide judges in their decisions. These records include the facts of the case, the legal arguments presented, and the court's judgement, providing a framework for resolving similar disputes in the future.
In the context of substantive law, common law plays a crucial role in establishing precedent. Substantive law can be derived from precedent in common law systems, influencing how members of a society should behave and defining their rights and responsibilities. The interplay between substantive law and common law ensures consistency and predictability in legal decision-making, as similar cases are resolved in a similar manner over time.
The application of substantive law and common law can vary depending on the jurisdiction. For example, in the United States, common-law systems are prevalent, and judicial precedent plays a significant role in determining the choice of law in a case. Federal courts have grappled with the distinction between substantive and procedural law, as this distinction influences whether state or federal law applies in diversity jurisdiction cases under the Erie Doctrine.
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Substantive criminal law
Substantive law is the set of laws that govern how members of a society should behave. Substantive criminal law, therefore, defines crimes and punishments. It may be codified in statutes or exist through precedent in common law.
Criminal codes are typically separated into two parts: a general part and a special part. The general part defines words and phrases used throughout the code, indicates all possible defences, and outlines the general scheme of punishments. The special part of the code defines each specific crime, setting out the elements of the crime that the government must prove beyond a reasonable doubt to convict a defendant.
To convict a defendant, the government must prove that the defendant committed a criminal act (actus reus) and that they acted with criminal intent (mens rea). The actus reus requirement means that the defendant's behaviour was a voluntary act or omission, or that they possessed an item they should not have. The mens rea element means that the defendant's act was triggered by criminal intent, rather than motive.
Finally, substantive criminal law also addresses accomplice liability. Accomplices are treated as equally liable as the main perpetrator, and accessories after the fact are charged with hindering prosecution or obstructing justice. Some states have also enacted vicarious liability statutes, which hold one person responsible for the acts of another, even if they did not provide assistance or know about the other person's behaviour. However, these statutes are generally invalidated by courts as they violate the belief in individual responsibility.
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Defining crimes
Substantive law in the UK defines rights and responsibilities in civil law, and crimes and their punishments in criminal law. It may be codified in statutes or exist through precedent in common law.
Criminal codes are typically divided into two parts: a general part and a special part. The general part of a criminal code defines words and phrases used throughout the code, indicates all possible defences, and outlines the general scheme of punishments. The special part of the code then defines specific crimes, setting out the elements of each crime that the government must prove beyond a reasonable doubt to convict a defendant.
To prove a crime of conduct, the state must demonstrate that the defendant's conduct met the specific actus reus requirement. This means showing that the defendant's behaviour was either a voluntary act, a voluntary omission to act when there was a legal duty to do so, or that they possessed an item they should not have.
Additionally, the state must prove that the defendant's act was triggered by criminal intent, known as the mens rea element. This is distinct from motive and involves demonstrating that the defendant's behaviour was intentional. The specific crime's definition may also include attendant circumstances, which are additional facts that the state must prove to establish the crime.
Substantive criminal law also addresses accomplice liability, where accomplices are treated as equally liable as the main perpetrator. Accessories after the fact, who aid in hindering prosecution or obstructing justice, are generally punished to a lesser extent than the main perpetrators.
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Inchoate liability
For example, if D2 supplies a jemmy to D1, believing that D1 will use it to commit a burglary, but D1 does not in fact commit a burglary, D2 cannot be liable as a secondary party to the burglary. However, D2 may still be charged under the Serious Crime Act for encouraging or assisting an offence. This is an example of inchoate liability, where D2 is charged with encouraging or assisting a crime, even though the substantive offence did not occur.
In another scenario, D2 may be charged with an inchoate offence if it is proved that they committed the inchoate offence or the anticipated offence, but it is unclear whether they acted as a principal or an accessory. In this case, D2 would be charged as a principal and would be liable for conviction and sentencing as either a principal or an accessory, depending on the evidence presented during the trial.
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Accomplice liability
Substantive law is the set of laws that govern how members of a society should behave. It defines rights and responsibilities in civil law and crimes and their punishments in criminal law. It is contrasted with procedural law, which outlines the procedures for making, administering, and enforcing substantive law.
Now, accomplice liability is a critical aspect of substantive law. Accomplices are those who aid or enable a crime without necessarily participating directly in its commission. Under UK law, accomplices are held accountable for their role and may face penalties similar to or as severe as those imposed on the primary offender, depending on their level of involvement. The terms "aiding" and "abetting" are used to describe the actions of accomplices. Aiding refers to providing assistance or support to the primary offender, while abetting involves encouraging or inciting the criminal act.
For instance, in a theft case, an accomplice might distract a store clerk or provide information about potential targets, thus aiding the crime without directly stealing. Similarly, in a burglary, an accomplice who acts as a lookout or getaway driver is still considered guilty, even if they do not enter the premises. Accomplice liability also extends to drug-related offences, where providing resources or transportation can make one liable, and the severity of sentencing depends on factors such as the class of drugs, quantity trafficked, and prior criminal history.
The concept of accomplice liability is not limited to common crimes. It also applies to more serious offences, including murder, assault, and conspiracy. In the case of conspiracy, there must be an agreement between at least two parties to commit a target crime, and some jurisdictions require an overt act in furtherance of the crime. Accomplices in a conspiracy are treated as equally liable as the main perpetrator, reflecting the principle, "the hand of one is the hand of them all."
It is important to distinguish accomplices from accessories, who may help before or after a crime but may not be present during its commission. Accessories are typically charged with hindering prosecution or obstructing justice and may receive lesser punishments than accomplices or primary perpetrators. However, both accessories and accomplices can face criminal charges, with the level of culpability and penalties varying based on the nature and timing of their involvement.
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Frequently asked questions
Substantive law is the set of laws that govern how members of a society are to behave. It defines rights, duties, obligations, and responsibilities in civil law, and crimes and punishments in criminal law.
While substantive law defines the rights and responsibilities of individuals, procedural law outlines the steps for making, administering, and enforcing these laws.
The UK is a constitutional monarchy, with the monarch as the head of state. However, the laws are established by the passing of legislation by Parliament, which consists of the House of Commons, the House of Lords, and the monarch. The UK is divided into three main jurisdictions (England and Wales, Scotland, and Northern Ireland), each with its own laws, court system, lawyers, and judges.
Common law is derived from custom and precedent and is declared by judges. It includes both substantive rules (such as the offence of murder) and procedural ones (such as court procedure rules). Substantive law, on the other hand, is codified in statutes or exists through precedent in common law.
