Conceptual Underpinnings: Nature and Purpose of Civil Procedure

The Nature of Civil Procedure: Definitional Aspects

Preliminary Remarks

In the process of analyzing the nature of a vital and sensitive social phenomenon like law, it is in order for most academic undertakings to start with an attempt to define key terms and concepts that form the essential part of the subject under consideration. Yet, it has, being in the nature of legal parlance, undeniably been a futile business to strive to come up with a precisely refined description to everybody’s satisfaction. But still, it becomes, at times, unavoidably imperative to venture into such a task so as to gain sufficient insight into and arrive at a proper appreciation of the matters being discussed.

Letting the legal wrangling aside, however, the term ‘civil procedure’ may-for the sake of simplicity, still be defined-in the context of bare technicality. To begin with, composed, it is obviously, of two words: ‘civil’ and ‘procedure’. Separately treated, the former is conventionally employed to denote matters related to ‘private’ individuals’ as opposed to ‘public’ affairs whereas; the latter refers to ‘the manner of carrying out a certain activity’. When combined, thus, ‘civil procedure’ would viewed from the aspect of court proceedings- mean no more than the ‘method of conducting legal actions relating to the issues of private persons’.

And, here comes the potential pitfalls of adopting such a merely literal approach. That is to say in instances such as this, one may run the potentially damaging risk of failing to properly appreciate the prime legal intent ingrained therein.  Hence, a metaphorical explanation of the matter would, it is hoped, not only avoid similar shortcomings, it would, incidentally, have a some relative importance. First and foremost, such an approach would enable one to sufficiently appreciate the significance of procedural rules vis-à-vis the substantive ones.

Moreover, one would, in the meantime, be properly equipped with adequate information about the spheres of application (play ground) of civil procedure as opposed to the criminal one and the criteria through which civil cases would be differentiated from the penal ones.  Most importantly, one would be well acquainted with the essential attributive qualities and the overall purposes of rules of civil procedure and would acquire the necessary knowledge so as to rationally attach the proper weight they deserve.

In what follows, therefore, instead of starting with the definition of  the term ‘ civil procedure’ as such, we would, in the first place, make distinctions between procedural and the other bodies of law; and, subsequently, compare and contrast the purposes that these legal rules are meant to serve. Such a teleological explanation would, in the final analysis, enable us to appreciate the most distinguishing features of the law.

Substantive Vs Procedural Laws: Significance

With a view to maintaining smooth and healthy societal interactions, all nations exert concerted efforts to minimize (if not to entirely avoid) such social evils as disputes to the extent possible. The adoption and implementation of legal prescriptions, as it has just been mentioned, is one of the prominent mechanisms of achieving such an end.  Meanwhile, the laws so enacted have their own specific natures, purposes and systematic arrangements.

Among the various ways of classifying laws, one involves making a broad distinction between substantive and adjective legal rules. Adjective rules are, in turn, subdivided into procedural and evidence laws with the former constituting the major portion of it. The law of evidence, which governs the method of proof of allegations or assertions of parties to a case, apparently falls beyond the domain of this course; and, we will therefore concentrate be dwelling upon the remaining two species of law: substantive and procedural.

Substantive laws, for the most part, define rights, duties, privileges and liabilities of persons and set out regulatory norms for their mutual relations in their ordinary course of life.

Functionally expressed, they provide the basic rules governing the day-to–day activities of individuals Vis-à-vis the community they live in and interact with- for the attainment of orderly and smooth societal interactions, and as such, form the substantial portion of the laws in the aggregate.  Thus, these chief attributes of the laws and their relative proportion, coupled with the fact that procedural laws are, comparatively speaking, but means to the end contemplated by substantive laws; may, presumptively, hasten one to attach more importance to the former than to the latter. Yet, there seem to be a strong teleological foothold to challenge the proposition as a mere foretaste of the functional purpose that the procedural laws are designed to serve and the ultimate objectives they have in view.

As indicated, above substantive laws seek to avoid disputes between and among individuals and groups in a society. They intend to achieve this by carefully delimiting their respective legal spheres; by, primarily, predefining their rights and the corresponding duties in an intelligibly ascertainable manner- in contemplation to adjusting human conducts at various levels of relationships so as to ensure individual freedom within the context of public order and societal harmony.

However, the ever renewed exigencies of human life and the correspondingly growing interdependability of social relations do signify the inevitability of real or perceived incompatibility and/ or divergence of interests; thereby, rendering the attempt to potentially avoid disputes practically inconceivable. This phenomenon, in turn, indicates the indispensable need for a formal and principled dispute resolution processes.

What is more, one may concede, to be fair, to the fact that the legal notions of substantive rules are so general and carry with them a bundle of legal effect one of which is the possibility of judicial enforcement. However, it is also tellingly true that even the very existence of those substantive rules is, more often than not, measured by their objective enforceability essentially through, , the instrumentality of procedural rules in the courts of law.

Moreover, it has nowadays been a well established fact that procedural irregularities affect the ultimate fate of litigation dramatically not less than the substantive problems. This assertion may well be substantiated by the following hypothetical illustration.

Assume, for instance, that there is a legal rule of substantive nature guaranteeing one of the rights to own/ possess property and make use of any benefit derived therefrom. Also assume that there is a firm legal declaration-stipulating that no one may be deprived of his ownership/ possesory right nor interfered with its enjoyment unlawfully and without due process of law. Let’s also imagine that the legal prohibition is illegitimately breached in a given situation.  Now, therefore, the point is, if the rightful owner/possessor, who is deprived of his  ownership right or possession; or, whose possession is interfered with, is not otherwise provided with effective and efficient legal process through which one would be able to reclaim the restoration of the thing he owned or possessed and/ or the cessation of the interference and require damages for any injury he might have sustained thereby and enforce the judicial remedy as against the wrong-doer or trespasser, it would be as if there was no such a legal declaration(right )at all.

Accordingly, one may safely and boldly propound that, law, needless to mention, is not, in its full sense, just prescription, rather, both prescription and application. Indeed, prescription without application is nothing but pretence. This means that the rights and duties envisaged by the laws would mean nothing unless they are fully enforced; most importantly, when they are breached or violated. In other words, the mere declarations of the rights in a document may not provide sustainable security when they are infringed, unduly suspended or taken away. This means, under the pain of repetition, that the bare statutory stipulations may not yield, for practical purposes, any good unless all the necessary conditions are thereto spell out the manner of their proper enjoyment and/ or exercise.

The existence and proper application of effective and efficient rules of procedure, hence, does not solely avoid the potential evils consequent to such unfortunate events; it would, thereby, enable the legitimate owner to properly enjoy and/ or exercise the right within the bounds of the law. Thus, unless there exists a normative framework and an institutional structure by and through which a wrongful conduct is peacefully and formally restrained, and the injured victim is proportionally remedied; the latter is likely to “take the laws into his hands”, as the saying goes, wherein, he might resort to some kind of self-help measures.     Consequently, here comes the significance of the rules of procedural laws in general and that of civil procedure in particular. That is to say, it is the function of procedural rules, to which civil procedure belongs, to govern as to how claims of persons are prepared; where and when presented; and, how determined and finally enforced by a court of law. In a nutshell, one may comfortably conclude that procedural rules, in essence, give effect (“life”) to the ends sought to be achieved by substantive laws.

Before winding up the discussion in this section, a brief note has to be made of the issues involving the practical difficulties of determining the categorical features of certain legal rules; i.e., whether they belong to substantive or procedural class, irrespective of the nature of the document embodying them. To start with, in the normal course of things, rules of substantive character are essentially enshrined or found, particularly in the civil law tradition, in such bodies of laws as the ‘civil’, ‘commercial’ and ‘penal’ codes; whereas, that of procedural ones are primarily incorporated in such instruments as the ‘civil’ and ‘criminal’ procedure codes. Yet, as a matter of fact, it is not, more often than one would expect that easy to readily put, with definitive precision, a particular legal rule to either of the categories. Indeed, it becomes, at times, indispensably necessary to draw such a proper distinction -which may otherwise has an observable legal implication Vis-à-vis the issue at hand.

For instance, laws affecting substantive rights are, in principle, construed to be non-retroactive in effect; i.e., such legislation does not apply or affect as regards facts or events (transactions) which took place before the legislation came into force.  The law of procedural rules, on the other hand, is commonly deemed operative from the day of their coming into effect to all cases pending in such very day and thereafter (See, for instance, Art 1 of the Cv. Pr). Considered from this aspect, it would not be so hard to imagine the legal effect of confusing one strain of rule for the other in a given situation. Two minor instances, illustrative of the foregoing scenarios, are thus in order. For example, Art 1856(2) of the Civil Code prescribes that a court dealing with a given case shall not have regard to period of limitations unless it is pleaded by the parties; which means, it is not legally proper for the court to consider, by its own initiation, the statutory specification of a period within which a law suit should be brought before it; and, hence, withhold or grant the incidental right, unless one is claimed of by the parties themselves.

Nevertheless, in spite of the fact that the rule is embodied in one of the predominant substantive laws, the Civil Code, appearing to warrant its substantive nature, a cursory review of the provision would suggest otherwise. That is, the rule is actually setting forth a guideline for the court as to how it should go about dealing with issues of period of limitation in relation to judicial proceedings.  And, as such, it is indeed a rule of adjudication governing the process of litigation in the court-rooms by regulating the relations for instance, between the litigants and the court; and, hence, procedural in nature.

In the same vein, but with a different approach, let us consider the stipulations in Art 1845 of the same Code in relation to the rules of period (statute) of limitations as regards contractual obligations. By virtue of this provision, the right to institute any legal action for the performance; on the non-performance or for the sake of invalidation of the contract, shall be barred, as a rule, unless brought within 10 (ten) years from the time the period started.  Thus, apparently, there seem to be some good reasons to conceive the rule, though arguably, as substantive in essence. For one thing, the rule, needless to state, is embodied in the Civil Code, the major constituent body of substantive rules. Besides, it is prescribing a condition in relation to the contractual right of a party, the exercise of which is made to depend. In other words, the rule is attaching a restrictive requisite for the taking effect of the right of a person who may demand a legal remedy for a contract- based civil injuries.

Nonetheless, in contrast to this position, there still seem to be some room to view the rule from another perspective wherein one may plausibly argue for and regard the rule as one of procedure.

Of course, there is an explicit provision in the Cv Pr Cd ( See, Art 244(2) (f) ) prescribing that contentions that the suit is barred by limitation-must be raised at the earliest possible opportunity and treated and disposed of as a preliminary objection by the court at the first hearing.  Moreover, the rule is so grand that it is counted as one of the only two causes on which a lawsuit could entirely be dismissed, where the  objection is sustained, with a far-reaching effect of precluding the reinstitution of a fresh suit as between the parties on the same cause of action.

In short, the rule, unarguably, demarcates the time limit within and before which a contract related action should or could be lodged in a court of law. In so doing it, in essence, determines the time as to when one would not be able to make use of his right, in which sense, plays a procedural role.

Be that as it may, there are some crude schemes of help, which are employed in civil matters to differentiate between rules of procedure and that of the substantive ones.

The first general approach is related, as it has already been indicated in the preceding section, to the material source; i.e., the constituent document of the rule under consideration. This means, rules of civil procedure, for instance, are primarily and substantially embodied in the Civil Procedure Code and, to a certain extent, in such other bodies of laws like the ‘Proclamation for the Establishment of Federal Courts’, Proc. No.25/96  ( and the amending proclamation thereto ).  Whereas rules of substantive laws are predominantly incorporated in such substantive codes as the ‘Civil’ and ‘Commercial’ they are secondarily, found in some other laws relating to civil matters.

The other broad criterion for distinguishing between the two areas of rules is connected to their respective contents (purposes) and the functional correlations between them.

As it has already been explained elsewhere in the chapter, the rules of substantive laws envisages avoiding conflicts so as to ensure individual freedom within the framework of public order and societal harmony; by, primarily, predefining the rights and duties of individuals and groups; and, by regulating their interactions at various levels of relations.

Nevertheless, notwithstanding the enactments of stringent substantive laws and the aspirations thereof, conflicts are virtually inherent in human relations; and, they can and do arise for a number of reasons; thereby ,calling for an efficient and effective dispute resolution mechanism if the ultimate objectives that the substantive laws have in view are to be meaningfully attained.  Thus, here comes the indispensable need to avail remedial measures for the dispensation of justice through the instrumentality of procedural rules; and, there lies the correlations between the two classes of laws. In that, the rules of civil procedure are fundamentally meant to deal with the manners of framing law suits; determining their place of institutions; and, governing the way they are to be considered and finally enforced by the courts of law. In other words, they are thereto secure the just, speedy and inexpensive disposition of civil cases in the administration of justice. Briefly stated, the law of procedure is the means to the end sought to be achieved by substantive laws.

Finally, the third parameter is concerned with the actual functions of the two classes of laws vis- a-vis their respective spheres of applications. In this respect, the rules of substantive nature determine, in the whole, individual conducts and regulate their interactions within the society at large. That is, they deal with civil matters largely falling outside the environs of the courtrooms. Procedural rules, in contrast, govern the process of litigation; regulate the conduct of relations between the litigants and the court with respect to the proceedings; and, as such, is called “law of action” reflecting the dynamic aspect of the rules of substantive laws. That is, substantive rules represent ‘law at rest’, so to say; while procedural rules denote “law of motion”.

To sum up, therefore, the material source, the constituent document-wherein the rule under consideration is inscribed; the ultimate objective the rule is meant to serve and its functional spheres of application are the three general, though inconclusive, yardsticks through which a distinction between civil and substantive rules is tested.

Till this moment, the Ethiopian legal system has been working without rules of conflicts. There is no law to guide judges to the effect. Ethiopian courts have been in trouble if they were confronted with a case containing a foreign element for they could not avail themselves of any provision of law. It was not, however, because there was no any effort to have same. A number of attempts have been made to draft the Private International law rules.

For the past has yielded an astonishingly rich accumulation of ideas, which still guide the present theory and practice, glimpse to that is very important. There was an early working out of necessary principles of international coexistence and intercourse, primarily on the commercial place. In effect, lending a time to its discussion is, the writers think, worthy.

Two names, neither of which are fully descriptive nor wholly accurate and precise but could be interchangeably used to designate the subject, are in common use viz. Private International Law and Conflict of Laws (also shortened Conflicts rules).