Substantive Law

Substantive law is a type of law that handles the legal relationship between individuals, or between individuals and the state. Substantive law differs from procedural law, in that it defines people’s rights and responsibilities. Procedural law focuses more on the rules that are used to enforce those rights and responsibilities. To explore this concept, consider the following substantive law definition.

Definition of Substantive Law


  1. An area of law that focuses on people’s rights and responsibilities as they are owed to each other and to the state.


1350-1400       Middle English

What is Substantive Law

Substantive law deals with people’s rights and responsibilities. For example, substantive law dictates the kind of punishment that someone may receive upon being convicted at the conclusion of his criminal trial. Substantive law also defines types of crimes and their severity. For example, substantive law is used to decide whether a crime was a hate crime, whether a murder was committed in self-defense, and so on. Substantive law is then relied upon to determine the rights that are afforded to the accused.

Procedural Law

Procedural law differs from substantive law in that it guides the state on how best to enforce substantive laws. Procedural law is made up of all of the rules that a court will consider when determining how best to handle a civil or criminal court proceeding. Procedural law provides a kind of step by step plan on how the facts of each case are to be handled, and how the case should proceed in order to reach a desired goal, whether that goal is trial, settlement, or otherwise.

Substantive Law in a Lawsuit

Substantive law in a lawsuit refers to the “substance” of a case, in that it deals with the elements of the case, and clearly defines the area of law that applies to each particular case. This way, the best plan of action can be taken insofar as bringing a lawsuit against someone, or defending someone who has found himself at the center of a lawsuit. For instance, substantive law in a lawsuit for a negligence claim consists of four major elements:

The laws of the state in which the lawsuit is brought will dictate the nature of the case, and will determine to what extent each of these elements exists.

Negligence is most commonly pursued in cases involving motor vehicle accidents. While all states will insist that a plaintiff prove the existence of these four elements of substantive law in a lawsuit to be victorious in a negligence claim, each state will differ insofar as its specific driving laws are concerned. For instance, while someone is not allowed to make a right turn on red light in one state, he may be allowed to do so in another state. Therefore, a plaintiff in a state where this is illegal may have a case for negligence, while a plaintiff in a state that allows it might not.

Substantive Criminal Law

Substantive criminal law deals with the elements of a case insofar as whether the issue at hand can be considered a crime or not. For every alleged crime that has taken place, there are specific elements that must exist in order to classify it as a crime. For instance, substantive criminal law would dictate that, for a person to be charged with the crime of burglary, the following elements must be present:

If these three elements are not present, then the incident may not be classified as a burglary, and a jury may decide that the accused is innocent, and that no crime had been committed.

Substantive criminal law differs based on the state or jurisdiction in which the alleged crime took place. There do not exist standard elements for every crime, nor for every jurisdiction. In the state of California, for instance, for a person to be convicted of assault, the prosecution would have to prove that:

  • The accused touched the victim with the intent to harm him
  • That the victim did not want to be touched
  • That the accused harmed the victim
  • That another reasonable person would have been offended by the accused’s touch

Therefore, if Gary punched Jason in a bar, and broke his nose, for making a comment that offended Gary, Gary would likely be convicted of assault because:

  • Gary made contact with Jason with the intent to hurt him
  • Jason surely did not want to be punched
  • Gary injured Jason by punching him
  • Another reasonable person would have been offended by Gary punching him in the face

How Substantive Law and Procedural Law Work Together

Substantive law and procedural law work together, in that procedural law system boosts the substantive law system by providing the guidelines that need to be followed so that substantive law can be applied to real-world disputes. Substantive law is then relied upon by a judge and/or jury when evaluating the evidence in a case to determine the nature of the case and the appropriate way to settle the matter.

Substantive law defines the elements of a case, while procedural law focuses on the burden that is on the plaintiff to prove any wrongdoings to a jury that fit within the elements provided. Substantive law is the “substance of the case,” and procedural law provides the “procedure” that would be best to handle the substance of each particular case.

Erie Doctrine

The Erie Doctrine is a civil law doctrine which provides that a federal court, when trying to decide whether to apply federal or state law to a case, must follow state law with regard to substantive law issues. When the question pertains to procedural law, however, then the court must apply federal law to the matter at hand. The origin of the Erie Doctrine is the Supreme Court’s landmark decision from 1938 in Erie Railroad Co. v. Tompkins. Here, the Court overturned the prior decision that had been made in Swift v. Tyson wherein federal judges were permitted to ignore their states’ common law decisions in certain cases.

Substantive Law Example Involving a History of Prior Felonies

An example of substantive law can be found in a case involving a defendant with a history of prior felonies, who argued that he had been sentenced too harshly, based on discrepancies between state and federal law. In 2010, police entered Gregory Welch’s apartment, believing that a robbery suspect was present. After getting Welch’s consent to search his apartment, the police discovered a gun and ammunition that Welch admitted were his own. Welch was then arrested.

Welch was charged with one count of being a felon in possession of a firearm, to which he pled guilty. Because Welch had three prior felonies on his record, he was to be sentenced to a minimum of 15 years in prison. Welch appealed, arguing that one of his felonies should not have been considered. His argument was that, at the time of his conviction, Florida law allowed for individuals to be convicted of robbery at a significantly lower level of force than the related federal laws required. However, the U.S. Court of Appeals for the Eleventh Circuit disagreed, affirming the district court’s decision.

The Court’s argument was that the force Welch had used during that robbery was “capable of causing physical pain or injury to another person.” Therefore, the Court agreed with the lower court that this conviction was appropriately considered when determining the most appropriate punishment for Welch.

In 2013, Welch challenged his conviction, arguing that his prior conviction for strong arm robbery was vague, and that his trial attorney was ineffective in his allowing Welch to be sentenced so harshly. He sought an appeal to the appellate court, which the district court denied. He then tried to appeal directly to the appellate court based on a similar case to his own that the Supreme Court was in the midst of deciding – Johnson v. United States – but the appellate court too denied his request.

Three weeks later, the Supreme Court decided Johnson, holding that the very standard that Welch was convicted under – the Armed Career Criminal Act (ACCA) – was too vague in nature and was therefore unconstitutional. It was ruled to be unconstitutional because, according to the Court, it failed to give individuals enough notice of the type of illegal conduct that it was to about to punish. The Court ultimately held that application of the ACCA was “unconstitutionally arbitrary and unpredictable.”

The question then became whether the Supreme Court’s ruling in Johnson, insofar as what constituted a violent offense, could be considered retroactively. If so, could Welch be successful in appealing his own conviction?

When the Supreme Court agreed to hear Welch’s case, they found in his favor in a nearly unanimous vote (7 to 1). Here, the Court held that, unlike procedural laws that change the ways in which conduct is determined to be punishable, substantive laws affect the reach of the statute, rather than its application. Further, procedural laws are not usually retroactive, but substantive laws are. As such, the ruling the Court handed down in Johnson, the Court decided, should also apply retroactively to Welch’s case.

This is an interesting example of both substantive law and procedural law. Substantive law applies to the facts of each of Welch’s crimes, and the actual laws governing the levels of, and punishments for, those crimes. Procedural law applies to the procedures that must be adhered to determine whether an appeal has merit, and whether elements of the law can be applied retroactively. In addition, this is an example of the application of the Erie Doctrine, as Welch complained of being the victim of discrepancies between state and federal laws.

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Prosecution – The lawyer or lawyers who charge and try a case against a person who is accused of committing a crime.
  • Proximate Cause – An event sufficiently related to an injury to be considered the cause of that injury.