Ronit Levine-Schnur (Hebrew University of Jerusalem) & Ofer Malcai (Hebrew University of Jerusalem) have posted WHICH CAME FIRST, THE PROCEDURE OR THE SUBSTANCE? A FEW NOTIONS OF PRIORITY on BEPress. Here is the abstract:
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Current legal trends tend to obscure the sharp distinction between substance and procedure. This tendency is manifested, inter alia, as a growing dependence of procedural norms in substantive law; greater flexibility of procedural rules; growing judicial discretion to deviate from procedural rules; and reducing procedural weight in legal proceedings. Notwithstanding these tendencies, theoretical and practical questions concerning the relationship between substance and procedure in law still remain unresolved.
This Article provides a conceptual framework for the study of these questions by analyzing some of the priority relationships that potentially exist between procedural and substantive norms. The proposed analysis may assist the understanding of what is at stake in concrete normative (moral and legal) dilemmas regarding the relationship between substance and procedure, as well to the general evaluation of the current legal trends.
