Comparison between Substantive and Procedural Law and Discussion on Felonies and Misdemeanors

Kimungu described the relationship between substantive law and procedural law as that of a mistress and a hand maiden. In this analogy, substantive law is considered the mistress while the handmaiden is procedural law. The laws are usually used concurrently in a case but there are some significant differences which need to be appreciated. With regard to felonies and misdemeanors, there are appreciable differences which need to be noted if one needs comprehend the enforcement of the crimes. This discussion seeks to compare and contrast substantive and procedural law on one hand while identifying and discussing what constitutes felonies and misdemeanors. While there is no legal sanction of a court declining to apply a substantive law while there is a legal loop hole in application of a procedural law.

In a supreme constitutional democracy, the only time in which the court can invoke or opt out of application of a substantive law is if the law is repugnant to the provisions of a supreme constitution. In the United States, if a legal provision made by the congress or any of the states is repugnant to the provisions of the amendment rights, the former is declared null and void to the extent of such inconsistency an anything constituting an act or omission to that effect is deemed invalid. With application of procedural law, a court can invoke the Oxygen principles of the overriding objective principle and escape the application of some procedural law (Kolb, 2006). While the court may be directed by a procedural law to strike out a case on the basis of an act or omission, the court may decline to pursue that course on the basis of pursuit of justice and fairness in light of the overriding objective principle or the O2 principle (Waldron, 2011).