SUBSTANTIVE LAW AND PROCEDURE

Civil-law countries are familiar with a clear-cut distinction be­tween substantive rules and the forms of process. There is a Code civil and a Code deprocedure civile; there is a Zivilprozessordnung and a Burgerliches Gesetzbuch.

On the Continent the study of procedure as an autonomous discipline started in the twelfth century. The Romans, being good jurists, had paid a good deal of attention to the forms and formalities observed in conducting lawsuits, but they had never seen procedure as a separate branch, nor had they made it the subject of separate research and reflection: no specific book in Justinian’s Corpus is devoted to it. Procedure became a special area of study when, in the twelfth century, jurists be­gan to collect the procedural membra disiecta scattered through­out the Corpus and to compare them to the procedural rules in the canons and decretals of the Church. The new science, and the concomitant new practice followed by the Church courts (especially those of the modern-style bishops’ officials), formed what is appropriately known as Roman-canonical procedure. The first, modest textbooks - or rather collections of excerpts from Roman and canon law — are known as the ordines iudiciarii and are humble efforts containing no more than a few pages. But from these slender beginnings arose a true science, which

already in the thirteenth century produced the vast and ency­clopaedic treatise by William Durand entitled Speculum iudiciale, which is why the author is known to legal historians as the Spec­ulator (which might cause some confusion in library catalogues or on the Internet). His Speculum was the final achievement of the creative age and remained the definitive textbook for cen­turies.

In the historic common law procedure and substance were intertwined and inseparable, as the common law originated and expanded around the creation and development of royal writs. Plaintiffs could choose from a number of specific writs for spe­cific complaints and each writ determined the progress of the case as far as summons, evidence, verdict, sentence and execu­tion were concerned. It is significant that the first treatise on the common law, GlanvilPs Tractatus de legibus et consuetudinibus regni Angliae (i i 87-9), was built around the royal writs which gave access to the royal courts and the procedures they com­manded. It would be impossible to tell whether his Treatise is an expose of substantive or procedural law. The writ of novel disseisin (archaic Norman French for �recent dispossession’) might illus­trate how the system worked. As land and the cultivation of land were at that time as important as jobs are now, the protection of tenures against unlawful dispossession was most important, and the writ or action of novel disseisin was devised to implement King Henry Il’s policy of safeguarding the peaceful possession and cultivation of land. The writ offered a quick and efficient means of redress by the king’s judges to whoever had been de­prived unlawfully and without a court decision. It only applied, however, within well-defined time limits (for example �since the king’s last voyage to Normandy' — in Normandy the time limit was the previous harvest but one). The plaintiff could obtain a royal order to the local sheriff to impanel a jury of twelve free and lawful men to give their verdict on the question whether he had been dispossessed �unjustly and without judgement’ by the defendant.