What is the difference between formality and objectivity in law?
Disclaimer: This is a legal article that provides information that does not replace consulting a competent lawyer to help you and for more accurate information.
The difference between “formal” (procedural) and “substantive” is one of the most important basic divisions in jurisprudence and judicial systems. Simply put, “objectivity” is about the right itself and its content, while “formality” is about the vessel or procedures and steps necessary to access and protect that right.
This difference can be detailed through three main axes in the law:
First: The difference in terms of “legal rules” (regulations)
- Substantive Rules (Substantive Rules):
- Its concept: It is the rules that create rights, define duties and obligations, and clarify crimes and penalties. It is the “subject” and essence of law.
- Its function: determines who has the right? What is commitment? (Example: The buyer’s right to receive the sold item, and the worker’s right to the wage).
- Examples of substantive systems: the civil transactions system (regulates contracts, obligations, and financial rights), the labor system (defines the rights of workers and employers), and the penal system (defines what a crime is and what its punishment is).
- Formal or procedural rules (Procedural/Formal Rules):
- Its concept: These are the rules that guide a person on how to claim his right if he is assaulted, and clarify the procedures, deadlines, competent courts, and methods of appeal.
- Its function: to protect substantive rights and apply the law. Without a formal law, substantive law becomes just ink on paper that cannot be implemented and forced upon people.
- Examples of formal Law: the Sharia Litigation System (regulates procedures for filing civil and commercial lawsuits), the Criminal Procedures Law(regulates arrest, investigation, and trial procedures).
Second: The difference in terms of “defenses before the courts”
When a lawsuit is filed, the defendant defends himself by presenting “defenses,” which are divided into:
- Substantive arguments:
- Objective: To direct the attack to the origin of the right claimed by the plaintiff (i.e. to the subject of the dispute).
- Conclusion: If the judge accepts the substantive argument, he rules to dismiss the case in full and end the dispute, and the ruling has the authority to prevent the plaintiff from filing the same case again.
- Example: (A) claims that (B) owes him 100,000 riyals. (b) pays by objective payment, saying: “I have paid you the full amount” (payment by payment), or “The contract concluded between us is invalid”.
- Formal (procedural) defenses:
- Objective: To direct the attack to the validity of the proceedings of the dispute and the lawsuit without prejudice to the origin or discussion of the right.
- Result: If the formal defense is accepted, the case is dismissed in form, but the plaintiff may file the case again if he corrects the procedural error.
- The golden rule: Formal defenses must be presented before entering into the subject matter of the case (substantive defenses), otherwise the right to uphold them is lost (except in relation to public order).
- Example: pleading that the court does not have territorial jurisdiction (such as if the lawsuit is filed in a Riyadh court and the defendant resides in Jeddah), or pleading that the lawsuit document is invalid due to lack of data.
- Regular application: According to Article 77 of the Sharia Procedures Law, the court shall decide on some formal defenses (such as the defense of lack of local jurisdiction or referral) independently and issue a ruling on them, unless it decides to include them in the subject of the case in order to decide on them with a single ruling.
Third: The difference in terms of “judicial proof”
Proof is also divided into two parts:
- Objective aspect of proof: Determines the legally acceptable evidence and the strength of each piece of evidence (example: Does this contract require witnesses or writing? What is the burden of proof and who bears it?).
- The formal aspect of proof: It is concerned with the way this evidence is presented to the court (example: How are witnesses called? What are the procedures for requesting an oath? How is the expert interrogated?).
Bottom line:
Objectivity is “the end and right to be protected,” while formality is “the safe legal means and path to that end.” The established principle of justice is that form exists to protect the subject, and an established objective right should not be sacrificed simply because of a simple, remediable formal error.
For law and legal consultations..Contact the office of lawyer Abdul Majeed Al Rashid
References
- Article Seventy-Seven of the Sharia Procedures Law
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