Fordham Law Review

Volume 10 | Issue 2 Article 1

1941

Substance and Procedure

Albert Kocourek

Recommended Citation
Albert Kocourek, Substance and Procedure, 10 Fordham L. Rev. 157 (1941).
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 FORDHAM LAW REVIEW
VOLUME X MAY, 1941 NUMBER 2

SUBSTANCE AND PROCEDURE

ALBERT KOCOUREKt

I
Introduction
T HE terms "substantive" and "adjective" seem to have been invented
by Bentham.' Austin criticized the distinction' saying "it cannot be
made the basis of a just division."' This criticism, it would seem, is

t Emeritus Professor of Law, Northwestern University, School of Law.

1. The following are excerpts from Bentham:
"By procedure, is meant the course taken for the execution of the laws .... Laws prescrib-
ing the course of procedure have on a former occasion been characterized by the term
adjective laws, in contradistinction to those other laws, the execution of which they have in
view, and which for this same purpose have been characterized by the correspondent
opposite term, substantive laws. For in jurisprudence, the laws termed adjective, can no
more exist without the laws termed substantive, than in grammar a noun termed adjective,
can present a distinct idea without the help of a noun of the substantive class, conjoined
with it .... " 2 BENTHAM, Woaxs (Bowring's ed. 1843) 5-6.
"Here, then, comes the line of distinction-the distinction between that part of the pro-
posed system of procedure, which may be given without the previous exhibition of any
part of the system of substantive law, and that part which cannot ... ." 2 BENrt, id. at
15 et. seq.
"The adjective branch of law, or law of procedure, and therein the law of evidence, has
everywhere for its object, at least ought to have, the giving effect throughout to the several
regulations and arrangements of which the substantive branch or main body of the law
is composed." 6 BENTHAM, id. at 7. Attention may be here directed to an interesting
and important observation, later emphasized by Pollock, Salmond, Gray, and others,
bearing on the nature of law, that the disposable force giving effect to legal rights, is "ex-
pressed by one common abstract denomination,... viz., the judge." 6 BENTHAM, id. at 7.
"Of the two main branches of the body of the law, the substantive and the adjective,
it is to the adjective alone that the subject of evidence belongs." 7 BEaTM, id. at 318.
" . . . the aggregate of that which in any country has the force of law, it will be found
divisible,... into two portions ... viz.... that in which the rule of action is laid down
simply and absolutely, . . . in the next place, that in which a description is given of the
course to be taken ... ." 9 BErTAM, id. at 8.
2. 2 AusTIN, LEcruaRs ON JuRSSPRuDENCE (4th ed. 1873) 611.
3. Austin points out that the French terms are "le fonds du droit" (substantive law)
and "Ila forme" (adjective law); the German terms are material law (substantive law) and
 FORDHAM LAW REVIEW [Vol. 10
based chiefly not on the meanings given by Bentham4 to the terms "sub-
stantive" and "adjective" but rather on Austin's objection to the terms
used for the distinction sought to be made.5 For the rest, we believe
Austin was mistaken or did not clearly understand the basis of the
distinction.
Holland in his treatise on Jurisprudence popularized the terms "sub-
stantive" and "adjective" and they have become generally accepted by
writers of professional texts. Holland, however, made no effort to analyze
the ideas which lie back of these terms and the wide acceptance of this
terminology no doubt is due to the simplicity of his description of what
the terms denote. The law, says Holland,
". .. defines the rights which it will aid, and specifies the way in which it will
aid them. So far as it defines, thereby creating, it is 'Substantive Law.' So far
as it provides
6
a method of aiding and protecting, it is 'Adjective Law', or
Procedure."
Consideration of the problem involved led to an interesting difference
of view, as we have seen, between Bentham and Austin, the two most
eminent analytical jurists of any age. A like opposition later developed
between Holland and Salmond, the two most eminent analytical jurists of
the last generation. Salmond begins by saying:
"It is no easy task to state with precision the exact nature of the distinction
formal law (adjective law). 2 Ausinq, ibid. See also POSENER, RECHTSLEXIKON, S. V.
MATERIELLES RECHT ND FORwELLES RECHT; 1 WINDSCEm, LEHRBUCH DES PA.DEKTEN-
RECHTS (9th ed. 1906) § 124.
4. Austin says: "Under the department of the law which relates to secondary rights
and duties I include Procedure, civil and criminal. For it is manifest that much of
procedure consists of rights and duties, and that all of it relates to the manner in which
secondary rights and duties are exercised or enforced .... In the Traites de Legislation
Bentham severs from droit substantif or the law, droit adjectif or the law of procedure.
This as it appears to me involves a double logical error. For in droit substantif he includes
droit civil (as opposed to droit penal) and droit penal; including under droit penal, the
law relating to civil injuries and to crimes with their punishments, together with the rights
and duties growing out of those delicts and of those punishments .... For all rights of
action arising out of civil injuries are purely instrumental or adjective; as well as the
whole of criminal law and the whole law relating to punishments. And 2dly, if he calls
the law of procedure droit adjectif, he ought to extend that term to the law relating to the
rights and duties arising from civil injuries and from crimes and punishments. The division
itself, therefore, is illogical, and his limitation of adjective law to the law of procedure
only, involves a second logical error." 2 Ausri, op. cit. supra note 2, at 791 et seq.
5. Later, in this discussion, we shall suggest use of the terms Telic and Instrumental
for Substantive and Adjective, as applied to rights, and state the reasons for the substitution.
6. HoLLAND, THa ELEE:NTS OF JURISPRUDENCE (13th ed. 1924) 90; see also 148, 168, 365,
368, 380, 388, 394.
 19411 SUBSTANCE AND PROCEDURE
between substantive law and the laW of procedure, and it will 7conduce to clear-
ness if we first consider a plausible but erroneous explanation."
Salmond does not mention Holland by name but there is little doubt that
his remarks refer to that contemporary.
Salmond objects that a distinction between jus "and remedium is in-
admissible. There are procedural rights (e.g. the right to introduce
competent evidence) on one hand. On the other hand, remedies may be
substantive (e.g. the rules of measure of damages).'
Salmond next gives his definition as follows:
"The law of procedure may be defined as that branch of the law which governs
the process of litigation. It is the law of actions .... All the residue is sub-
stantive law .... .
He continues:
"Substantive law is concerned with the ends which the administration of justice
seeks; procedural law deals with the means and instruments by which these ends
are to be attained." 9
Again, Salmond makes the interesting observation that "procedural law
is concerned with affairs inside the courts of justice" while "substantive
law deals with matters in the world outside."
It is further remarked by Salmond that in legal theory the distinction
attempted can be sharply drawn, but he adds that there are many
procedural rules which in their operation are "substantially equivalent"
to rules of substantive law. He mentions three classes: (1) exclusive
evidential rules (e.g., statute of frauds); (2) conclusive evidential facts
(e.g., conclusive presumptions); (3) limitation of actions.
Bentham's statements on the distinction are highly generalized and
offer no definite criteria for the solution of various difficult problems.
Austin, in effect, after an acute discussion of the question, criticizing
Bentham's terminology, abandons the distinction entirely. Holland goes
back to Bentham. His basic definitions are superficial, and even inaccurate
as Salmond has made clear."0 However, the Bentham-Holland arrange-

7. SALmoND, JinuDSRaUNac (9th ed. 1937) § 172.

8. At this point, Salnond says that the "rules determining the classes of agreements
which will be specifically enforced are as clearly substantive as are those determining the
agreements which will be enforced at all." SAcarOND, op. cit. supra note 7, at § 172. This
problem will be considered later.
9. Id. at § 172. Cf. note 8 stpra. Does not this statement present a contradiction?
10. It may be pointed out as explanatory of this fact, that Holland had no notion
of the complexity of jural relations and seems not to have recognized the existence of any
right other than the claim-duty relation.
 FORDHAM LAW REVIEW [Vol. 10

ment has an utility of great importanceand convenience for an arrange-

ment of the law.1 ' "Adjective" law deals with all the facts, rights, and
conditions which first arise in, or refer to, litigation. "Substantive" law
includes all the rest. 2
According to this arrangement, a judgment would fall under "adjective"
law; so, likewise, would be classified a conclusive presumption of fact,
or the parol evidence rule. We believe an arrangement of the law on this
basis presents a clear-cut distinction, sound both in logic and practice.
However, it must be pointed out that the terms "substantive" and
"adjective" are used in litigation in a sense somewhat different from the
usage for the purpose of arrangement or classification of the law.
Bentham, Holland, and Terry were concerned primarily with classification.
Austin, too, was concerned with classification but what seemed to him an
inappropriate use of the terms "substantive" and "adjective" led him to
abandon them entirely. Salmond, also, having in mind the problems that
arise in litigation, and, at the same time, seeking a classification, sought
a solution in rules of exception, where certain "procedural" rules were
treated as "substantive". We believe the difficulty here arises from failure
to observe that the terms may be used to represent two distinct but yet
related categories. The terms "substantive" and "adjective" can never
be reconciled unless and until these categories are sharply separated. We
believe that all the difficulty and confusion that now exist, in conflict of
laws, is due to two features: (a) the inappropriateness of the terminology,
and (b) the attempt to harmonize the function of legal arrangefnent with
a group of problems arising only in litigation and having no immediate
connection with the problem of classification of the law as a whole.
Theories. The problem under consideration has developed various
theories of solution. First, there is the orthodox view that "substance"
and "procedure" can be clearly and sharply separated (Bentham). Next,
11. Terry also follows the Bentham-Holland arrangement. Terry includes under
"Adjective Law", procedure, pleading, and evidence. TERRY, LEADING PRINCIPLES OF ANGLO-
A.s-mxcAN LAw (1884) 636. Holland's arrangement includes (i) jurisdiction (in the conflicts
sense) ; (ii) jurisdiction (domestic sense) ; (iii) the action, including summons, pleadings, trial
(including evidence); (iv) judgment; (v) appeal; (vi) execution. HOLLAND, ELE=ENTS OF
JuRisPRuDExcE (13th ed. 1924) 358-365.
12. A rather obvious and sometimes controverted question is presented here. The school
of jurists who may be labeled as "phenomenalists" would deny that there are any "rights"
involved either before or after litigation. See LuNAu, ILLUSioNs ET RrSlAs DAs LA
POLITIQUE INTERATIONALE DE PA=c (1939) 81 et seq. In Roman tort law there was no
right prior to the tort act. In the Roman law of Obligations there did not seem to be any
recognition, at least for purposes of classification, of a breach of contract. Cf. MoYLE, THE
IxsT7us or JUSoINiAx (4th ed. 1906) 130. There is still another view that there are only
procedural rights.
 19411 SUBSTANCE AND PROCEDURE

there is the view that this separation "is sharply drawn in theory" but
that in practical operation many procedural rules are "wholly or sub-
stantially equivalent to rules of substantive law" (Salmond). 3 -Next,
there is the view, that there is no distinction between "substance" and
"procedure" (Chamberlayne). Another view (at once the most recent
and one already widely accepted) is that of Professor Walter Wheeler
Cook. 5 Cook's position is based on relativity and function. Professor
Cook does not, it seems, deny that there is a distinction between "sub-
stance" and "procedure" but he asserts that many problems fall into a
"twilight" zone.
The Chamberlayne and Cook Theories Considered. Chamberlayne
said,
" .... the distinction between substantive and procedural law is one not only of
but little consequence; . . .it is one which is principally based . . .on a mere
difference in form of statement."' 6

Cook says:
"Not so, unless I qualify my statement by adding 'for the purpose in hand.'
For other purposes it may become vital and important, ... 17

Chamberlayne says:
"So far as it is law at all, it is the litigant's right to insist
8
upon it, i.e., it is a
part of his right. In other words, it is substantive law."'
In these words, Chamberlayne annihilates all procedural law. In logical
effect "substantive" law also is obliterated. There remain only law and
rights. Chamberlayne now introduces an entirely new category. "The
true distinction," says Chamberlayne, is, "between the rules of law,
substantive or procedural . . . and the principles of rational judicial
administration."" Chamberlayne's radical assumption that all law is

13. SALMOND, JURISPRUDENCE (9th ed. 1937) § 172.

14. "The distinction between substantive and procedural law is artificial and illusory.
In essence, there is none. The remedy and the predetermined machinery, so far as the
litigant has a recognized claim to use it, are, legally speaking, part of the right itself."
1 CHAzmERLAYNE, MODERN LAW OF EvnENCEc (1911) § 171.
15. Cook, "Substance" and "Procedure" in the Conflict of Laws (1933) 42 YALE L. J. 333.
16. 1 CHAioERLAYNE, op. cit. supra note 14, at 216.
17. Cook, supra note 15, at 337.
18. 1 Ca mERLAENE, op. cit. supra note 14, at 217.
19. 1 CHAmmERLA E, op. cit. supra note 14, at 217 et seq. The value of this distinction
lies in that it points out an important element in the process of litigation which can hardly
be treated by legal rule [see WiGmoRE, PpmqcilPrs op JUDICIAL PROOF (3d ed. 1937)], but
it can not be employed as a substitute for the conventional terms "substance" and "pro-
 FORD)tAM LAW REVIEW [Vol. 10

substantive,2 0 has a certain amount of plausibility but only in a pre-

liminary way. A right without the protection of a legal sanction which
can be put into motion is not a legal right.2 1 But once it is found that a
"remedy" is available, the preliminary question is answered and it would
seem to be clear that there is a distinction between the right of redress
and the procedural steps available to obtain it. The right to have damages
certainly is of a different nature than the right to summon the defendant.
Professor Cook's essay is much more than a discussion of "substance"
and "procedure." It is a practical application of problems in semantics
and legal logic. It is based on a distrust, if not quite an abandonment of
concepts and categories.22 For Cook, concepts are not discovered but
created. They have no timeless validity but are merely operational postu-
lates to facilitate attainment of practical ends.3 He shows his aversion
to categories by referring to "substance" and "procedure" as an "al-
leged distinction. ' 2 4 We have seen that Chamberlayne dissolves any
distinction between "substance" and "procedure." Cook arrives at a
trichotomy. There are: (i) "substance," (ii) "procedure," and (iii) a
penumbra, a "twilight zone," a "no-man's land," which may be "sub-
stance" or "procedure" conditioned on the end to be attained. This
trichotomy is based on a statement by the eminent American scientist,
Lewis, 26 and a favorite generalization of Holmes that most distinctions
are differences of degree.2
cedure." The distinction touches a different subject-matter.
20. This solution suggests the possibility of a theory that all law and all rights are
purely procedural. Cf. THON, RECHTSNORm UND SuymV-S REMHT (1878). See note 12
suf'ra.
21. The procedural remedy may be in various ways suspended or it may be subject
to procedural opposition (e.g., suits by aliens in war time; contract not presently evidenced
by a writing; claims barred by limitation). In all these cases the right exists but it is
presently unenforcible.
22. Professor Cook's views here are probably a part of a general scheme of scientific
method in which the ideas of operationalism (Bridgman) and function (Dewey) seem to
be the chief elements.
23. ". . . concepts are tools which we use to aid us in determining what ought to be
done. . . ." Cook, supra note 15, at 340.
24. Id. at 336.
25. Id. at 350-351.
26. Lxwis, THE ANATOmY oF SciENcE (1926) 178. It may be observed that Lewis at this
point is discussing the non-mathematical sciences.
27. HoLms, COLLECTED LEGAL PAPEas (1921) 232. LEwis, op. cit. supra note 26 asks:
"Indeed, are all distinctions in kind reducible to distinctions in degree? These questions
are hard to answer." On these important and interesting questions the present writer
ventures to suggest the following:
Concepts in a strict and accurate sense relate only to forms, abstract entities. They do
1941] SUBSTANCE AND PROCEDURE
While the origin of Professor Cook's trichotomy is clear enough, its
logical basis is not easy to understand. If there is a "twilight zone"
which indifferently may be "substance" or "procedure," it would seem
to follow that there is no distinction between "substance" and "proced-
ure." On the contrary, if there is no "twilight zone" then "substance"
and "procedure" are distinct ideas. We believe Cook's theory needs
reconsideration, and, probably, reformulation, in its logical construc-
tion, but, for the rest, there can be no doubt of the considerable Value
in other respects of his point of view.2 8 We leave the matter with the
declaration of belief that the ideas, "substance" and "procedure," either
in their definition or in their social application do not rest on a relation-
ship of degree of something.
The Terminology. The terms "substance" (or "substantive" or
"material") and "adjective" (or formal) are unsatisfactory. These terms
are metaphors, drawn, as Austin has remarked, from grammar or logic.2 9
Austin himself suggests a meaning for "substantive" rights as "those
which exist in and per se."30 Another similar form is "self-regarding

not relate to so-called "objective things." There are for example, no differences of degree
between odd numbers and even numbers. Abstractly 2+2 always equal four, but con-
cretely 2+2 might add up to five, three, or some other number. The probability of concrete
addition of 2 and 2 resulting in four would be only one chance in many millions. The problem
remains whether such ideas as "substance" and "procedure" are amenable to sufficient
abstraction to attain the conceptual level. We believe an affirmative answer is the right
one. It will, of course, be instantly urged that in passing from the lower level of concreteness
to the higher level of abstractness, the difference attained is merely one of degree. Attenua-
tion of the concrete residues is progressively attainable in degrees but when all concrete
residues are eliminated, the result is a difference in kind, as is often seen in pure mathematics
when dealing with limits. Moreover a difference in kind may be reached without an
intermediate step of purification.
Professor Cook says: "Apparently all concepts which we use in our attempts to classify
objects, events, or situations turn out to be surrounded by a 'twilight zone'. . . . " Cook,
supra note 15, at 334. The present writer makes no objections to this statement as it stands,
since concepts do not fall into the class of objects, events, or situations. Unfortunately,
Professor Cook would seem not to accept our interpretation of the nature of concepts. He
says, ". . .so long as we assume that the distinction between 'substance' and 'procedure'
has a more or less 'real' or 'objective' existence, . . ." Cook, supra note 15, at 347.
28. Cook's essay seems to us the best written on this topic. Its special value lies in the
abundance of concrete problems which the distinguished author has put together and the
shrewd insight into the legal policy in the background of the rules. See also, Green To What
Extent May Courts Under the Ride Makitg Power Prescribe Rules of Evidence? (1940) 26
A. B. A. J. 482.
29. 2 Ausmx, op. cit. supra note 2, at 611.
30. 2 A-usan , id. at 789.
 FORDHAM LAW REVIEW [Vol. 10

rights."'" The latter form, however, can not be used here since it stands
in contrast with "other-regarding rights.""2
Since the terms "substance" 33 and "adjective"34 (apart from ar-
rangement of the law)"3 are not used with a uniform meaning and
especially since they are faulty in application from the standpoint of
etymology, we venture in this part of our discussion to displace both
terms by others as follows: for "substantive" we shall say "telic"; for
"adjective" we shall say "instrumental." One advantage of this minor
proposal is that we can make a fresh start, fixing the meaning of the new
terms as we wish, free from the influence of traditional ambiguity and
misapplication. "Telic" rights are those abstract rights 6 whose realiza-
tion is effected by the concrete application, directly or indirectly, of
"instrumental" rights. 1
Classes of Applications. The problem under consideration, whether
there is any sharp conceptual distinction between "telic" and "instru-
31. KOCOUREK, AN INTRODUCnON TO THE SCIENCE OP LAW (1930) 312 (e.g., corporal
integrity).
32. E.g., pledge. Cf. Principal and Accessory Claims, KocouREN, op. cit. supra note 31,
at 307.
33. The term "substance" (sub+stare) in logic means a subject of predication. It may
also mean "essence" or "being." There are various other meanings. See BRADLEY, Ap-
PEARANcF AND REArxriY (9th imp. 1940) ii. It is clear that standing alone the term "sub-
stance" does not unambiguously point out its designatum. From the historical standpoint
it may be urged that the procedural operations which bring a right to concrete realization
are the "substance" of the right. Thus, Holmes: "Whenever we trace a leading doctrine of
substantive law far enough back, we are likely to find some forgotten circumstance of
procedure at its source." HomrEs, Coz-mioN LAw (1881) 253.
34. The term "adjective" (adject-us=ad+jicere) suggests addition, or adjunction (de-
pendence or secondary). See, BRADLEY, op. cit. supra note 33, on the view that "substantive"
law has the appearance in the infancy of the courts of "being gradually secreted in the
interstices of procedure" (Maine), the modern meaning amounts in effect to a reversal of
ideas.
35. To avoid misapprehension we restate our position. We suggest no change of
terminology as to the terms "substantive" and "adjective" as applied to an arrangement of
the laws. For this purpose, these terms by long usage beginning with Bentham have
acquired a meaning special to the law. We do, however, suggest a change of terminology
for these or other terms when used to designate rights.
36. What we mean here by an "abstract" right is what Holmes calls an "hypostasis of a
prophecy." HoLuEs, COLLECTE LEGAL PAPERS (1921) 310, 313. The prophecy of the
abstract "teic" right is brought to concrete realization or is tested by "instrumental"
rights.
37. According to Lorenzen, " . . . 'substance' includes all rules determining the legal
relations which the courts will declare when all the facts have been made known to them,
whereas 'procedure' relates to the process or machinery by which the facts are made known
to the courts." Lorenzen, The Statute of Frauds and the Conflict of Laws (1923) 32 YALE
L. J. 311, 325; 3 BEALE, Comricr or LAws (1935) 1599 et seq.
1941] SUBSTANCE AND PROCEDURE

mental" rights, is generally assumed to be involved in three classes

of cases:
1. In So-called Conflict of Laws. s A may have a given telic right and
given instrumental rights39 in state X. A's telic right may be litigated
in state Y. Speaking broadly, A's telic right will be enforced in state Y
but in the process of concrete enforcement, state Y will apply its own
"adjective" (instrumental) law and accord to A only those instrumental
rights which are available to its own subjects.
It is the prevailing theory in Conflict of Laws that when enforcement
is sought in Y but where the investitive facts arose elsewhere (e.g., in
state X) that the right was uniquely created where the facts arose and
not elsewhere.4 0 This doctrine probably derives from ideas of public inter-
national law with which the theories of conflict of laws in earlier centuries
were closely connected. This is not a necessary view and the rule itself
probably is an historical accident. It would result in simplification of
theory if the view were accepted that investitive facts create as many
coincident rights as there are states which give them recognition. 4 Under
the existing theory, in a given jurisdiction, the instrumental rights of all
litigants are the same, but the telic rights differ. These differences are
measured chiefly by considerations of morality, comity, and convenience.4
2. In ConstitutionalLaw. If the problem can be said to be presented
in constitutional law it will arise chiefly in the following ways: (i) under
retrospective laws4" (including ex post facto laws); 4 (ii) under laws im-
38. To replace this misnomer, the author on another occasion suggested the expression,
"The Law of Foreign Reference." Kocourek, Book Review (1940) 35 ILL. L. Rv. 234, 236.
39. It should be observed that instrumental rights are themselves abstract prior to
concrete application. The plaintiff may have an instrumental right against the clerk of
court to have issued to him a summons. This right is itself abstract. If, when application is
made, the clerk performs his duty, performance is incidental to realization of the plaintiff's
telic right. If, on the other hand, the clerk violates his duty, this breach of duty gives
rise, as between the plaintiff and the clerk, to a telic right.
40. Where the locus of the facts is a country not under control of a -state (e.g.,
Spitzbergen in the last century) a new problem will arise especially in contract cases. See
Stammler, Das Recht in 'Staatslosen Gebiete, FzsTsca-r FUR KARL BINDING (1911) 331.
41. KocouREK, JuRAL RELATIONS (2d ed. 1928) §§ 13-16, p. 234 et seq. Many years ago
Professor Cook had already taken this position on the nature of rights in conflict of laws.
Cook, The Logical and Legal Bases of the Conflict of Laws (1924) 33 YALE L. J. 457, 473-
477; Cook, Recognition of "Massachisetts Rights" By New York Courts (1918) 28 YALE
L. J. 67.
42. Professor Cook emphasizes convenience as the dominant test: "How far can the court
of the forum go in applying the rules taken from the foreign system of law without unduly
hindering or inconveniencing itself?" Cook, swpra note 15, at 344.
43. Ohio & M. Ry. Co. v. Lackey, 78 Ill. 55, 20 Am. Rep. 259 (1875) ; Johnson v. Jones,
44 Ill. 142, 92 Am. Dec. 159 (1867).
44. Calder v. Bull, 3 DalI. 386, 390 (U. S. 1798).
 FORDHAM LAW REVIEW [Vol. 10

pairing the obligation of contracts; 4 5 (iii) under the Due Process clause; 4"
(iv) under the Full Faith and Credit clause; 47 (v) under the Equal Pro-
tection clause.48
3. Under the Federal System. This includes (a) the application of
federal law in 49the state courts; (b) the application of state law in the
federal courts.
It has been suggested that the meaning of "substance" and "procedure"
differs or may differ in the three classes above enumerated according to
the "purpose in hand." The position taken here is that telic rights are
such by nature and conception, and that their character does not change
by reason of purpose of application. This is likewise true of instrumental
rights. The rules, however, of application of these concepts may and do
differ as modified by purpose.5 0 If the application differs from the gen-
eral rule (e.g., that instrumental rights are fashioned by the forum), that
is no warrant for the view that the concept of instrumental rights is
imaginary or that the nature of the rule is determined by the use made
of the concept."' These distinctions can only be accurately understood
ex natura rerum in a logical harmonization of all possible applications
and all conceivable ends.52 The practical methodological problem here
is this: Is it better to start with concepts which attempt to envisage the
45. Gunn v. Barry, 82 U. S. 610 (1872).
46. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143 (1934).
47. John Hancock Mutual Life Ins. Co. v. Yates, 299 U. S. 178 (1936).
48. Paramino Lumber Co. v. Marshall, 309 U. S. 370 (1940).
49. This class recently has achieved special importance following the abrogation of the
rule of Swift v. Tyson, 41 U. S. 1 (1842).
50. Thus, the rule of burden of proof, almost by universal consent is a rule of "adjective"
law. Yet, because of the practical utility of having a uniform body of land law in each of
the federated states, the local rule should prevail over a possibly inconsistent federal rule.
See Cities Service Oil Co. v. Dunlap, 308 U. S. 208 (1940). On the contrary, where a
federal statute is involved, for the need of uniformity in application, it is sound policy that
the rule on burden of proof should give way to the federal rule. See Barney v. New York
Central Railroad Co., 222 N. Y. 195, 118 N. E. 625 (1918).
51. According to the federal view the rule is one of "substance." According to the
New York view, the rule is "procedural." The better policy is that there should be
uniformity. Federal authority is superior to state authority in this collision of ideas. The
resulf throws absolutely no light on the question. If the views had been reversed there would
still be no light. If concrete application and choice of ends are to be determinative for
the problem then the distinction must disappear since these applications and choices will often
be found in conflict.
52. As to the classes above enumerated in which the problem arises, the cases are legion.
These cases are collected chiefly in works on Conflict of Laws, Constitutional Law, Federal
Procedure, and Evidence. The applications are often highly conflicting and we must here
of necessity limit our consideration of the problem to its theoretical outlines.
1941] SUBSTANCE AND PROCEDURE
whole subject-matter of possible applications or shall we direct our
attention solely to the ends in each instance to be served without refer-
ence to, or consciousness,
53
in the process of application, of a conceptual
structure of ideas?
Jural Survey of the Problem. The nature of the problem can best be
understood by setting out a jural chain of the ideas involved, in an his-
torical sequence. For this purpose, we shall set out the consecutive steps,
(a) of a contract situation, and (b) of a tort, in the following table:
A. I II III IV
Creative Contract Breach (a) Remedy
Facts Relation (b) Power of suit

B. Creative Primary Breach (a) Remedy

Facts Right (b) Power of suit

A. V VI VII VIII IX
Process Pleadings Trial Judgment Execution

B. Process Pleadings Trial Judgment Execution

It will be observed that there is no substantial difference in these series.
The first four steps are dealt with by Substantive Law; the last five steps
are dealt with by Adjective Law. Step No. II is a telic right. When that
right is violated it is succeeded by IV(a) which also is a telic right. Later
53. This is one way of stating the controversy between "conceptualists" and so-called
"realists." To use a figure of speech, the "conceptualist" looks upon a machine as an
integrated combination of power, levers and connecting rods, and wheels. The "realist"
(anti-conceptualist) eliminates the levers and connecting rods. The "realist" has the
simpler machine. It has no intellectual complications, but it suffers the risk that the wheels
often will not go at all or will go in the wrong direction. Acceptance of the first alternative
does not imply that the conceptual structure is attainable without great effort or that what
is available is not highly imperfect. "Realism", on the other hand, untroubled by painful
toil of achieving a workable harmony and a systematic unity of ideas, knows what it wants
but in general does not know why. As a philosophy, realism in law is voluntaristic and
pluralistic, and tends toward a legal entropy of ideas.
Professor Cook's article is the leading one on the subject of this paper and to avoid
misapprehension the writer wishes to make clear that the comment just made is directed
against some of the radical forms of "realism". Professor Cook, as we understand him,
does not repudiate logic, deductive reasoning, or even concepts or categories. For him.
concepts serve only an heuristic purpose. Professor Cook has, however, stressed the "purpose
in hand" idea as the dominant one in the problem before us. He has also, as we have
seen, advocated a "twilight zone" doctrine. Both of these ideas we believe, have the
unhappy effect of bringing him for the problem under consideration, in effect, into a camp
not easily distinguishable from radical "realism."
 FORDHAM LAW REVIEW [Vol. 10

in the chain we find a Judgment (VIII); this also is a telic right,

although it falls into the field of adjective law.
Step No. II (in both cases) is often called a primary (or antecedent)
right. 54 Step No. IV(a) is often called a secondary (or remedial or sanc-
tioning) right. Some writers call Step No. IV(b) a tertiary (or remedial)
right. 55 Steps IV(a) and IV(b) arise at the same moment, immediately
following a breach of duty. Power of suit[IV(b)] is clearly a right 6
but it is not a telic right. It is not a self-regarding right but exists solely
for the specific enforcement of IV(a). If IV(b) can not be predicated,
then IV(a) can not be predicated.
In a jural inventory of the elements involved, we find the following
kinds: (i) facts (human acts and natural events); (ii) jural events;
(iii) jural conditions; (iv) jural relations.5 7 In the above table some of
these elements are disclosed (e.g., A-I-human acts of "offer and accep-
tance"; B-I natural events-birth and survival; steps II, IV(a), IV(b),
VIII-jural relations). Jural events and jural conditions are not ex-
pressly disclosed in the above table. Thus, that an offer followed by an
"cacceptance" results in the jural relation called "contract" is due to a
jural event, the imprimatur of the law. Jural conditions in this connec-
tion have a special importance in procedure. The object of introducing
evidence is to produce persuasion in the trial of the fact. This persuasion
is a jural condition.
We are now prepared to observe that elements other than rights enter
into the problem before us. We have just seen how the jural element of
procedural persuasion is one of the central ideas which demonstrate the
actual, as opposed to the hypothetical, existence of an asserted right.
The important conclusion at this point is that the problem is not confined
to rights (jural relations) but includes jural facts, jural events, and jural
conditions arising in litigation. 8

54. Cf. HOIAND, JURISPRUDENcE (13th ed. 1924) 147.

55. See GooDRicir, CONfLICt OF LAWS (2d ed. 1938) 188.
56. We use the term "right" here in a generic sense; it includes the following varieties:
(i) claim-duty; (ii) immunity-disability; (ii) privilege-inability; (iv) power-liability. Groups
(i) and (ii), and (iii) and (iv), respectively, are substantially equivalent. In some of
the restatements of the American Law Institute the term "right" is confined to group (i).
57. It would hardly be convenient to attempt a detailed explanation of these elements.
For a discussion of these matters see KOcoua=K, INTRODUCTION TO THE SCIENCE OF LAW
(1930) 235-330.
58. Many jural categories are comprehensive (e.g., public and private, positive and
negative, self-regarding and other regarding, frangible and infrangible, etc. Some jural
categories are not comprehensive of the element of idea separated into classes (e.g., personal
and proprietary, principal and accessory). The dichotomy here employed of "telic" and
19411 SUBSTANCE AND PROCEDURE

A final question is: How shall we denominate the jural facts that give
rise to jural relations, especially in the field of Substantive law? The
complex of facts which create a right are not telic; they are simply crea-
tive of an idea of a telic nature. It will be shown that these facts are of
equal importance for our problem with the rights which they create. The
facts are the jural cause, and rights are the jural effect. We see no reason
to doubt that these jural facts should also be denominated as telic. There
are, therefore, telic facts, telic conditions, and telic rights standing against
instrumental facts, conditions and rights.
Nature of the Problem. The above survey of the elements which enter
into the problem now enables us to point out precisely what the problem
involves. We have attempted to show that there is a sharp distinction
between what is "telic" and what is "instrumental." 59
In the process of litigation, a minimum of all the strictly relevant ele-
ments (I-IV) must be reproduced in the pleadings (in abstract form)
and in the evidence (in detail). Where only one jurisdiction is in-
volved and no change in the substantive or adjective law is presented,
the problem of what is telic or instrumental does not arise. This is the
normal case. Here the telic facts and rights are in complete accord with
the instrumental facts and rights. The scope of telic rights is determined
by the instrumental rights which are available to protect them.
But even where only one jurisdiction is involved there may occur a
change in the existing law 0 which raises the question whether the change
is telic or is simply instrumental. The assumption underlying the gov-
erning rules is that changes affecting instrumental rights do not substan-
tially affect telic rights. The assumption serves as a direction finder
"instrumental" does not embrace all the kinds of rights. Thus a right specifically enforcible
can not be violated (ie., it can be specifically enforced). Therefore, juristically, it is neces-
sary to hypostatize another right which is frangible. The principal right is telic (i.e., self-
regarding) ; the accessory right is neither telic (in essence though it is so treated procedurally)
nor instrumental.
59. It may be interesting to observe that telic rights deal with the claim-duty relation,
while instrumental rights deal with the power-liability relation. Telic rights outside of
litigation are sometimes supported by accessory instrumental rights of the power-liability
type (e.g., power of recaption, power of distraint, power of sale, lien assertion, etc.). Here
it is to be noted also that instrumental rights are not limited as is, we believe, commonly
supposed, to public law (ie., state-supervised litigation). In state-supervised litigation, the
accessory power of self-help disappears. For it is substituted the claim-duty relation
available against the officers of public justice (i.e., clerks, sheriffs, judges).
60. Every law that alters the legal rules of evidence, and receives less, or different testi-
mony, than the law required at the time of the commission of the offence, "contravenes the
constitutional provision applicable alike to the United States and the several states." Calder
v. Bull, 3 Dall. 386, 390 (U. S. 1798).
 FORDHAM LAW REVIEW [Vol. 10

and in general is in accord with the fact, but even a change in the rules of
evidence as applied to an existing telic right may affect the telic right so
adversely that it may be constitutionally objectionable. In such cases
the question is not whether the change in the law affects the telic or the
instrumental right. The basis of decision here is a different idea-the
idea of fairness and legal tradition.6
What has been remarked concerning the single jurisdiction applies in
principle also so far concerns the federal system. If a federal statute is
involved, federal decisions rule the question of what is telic and what is
instrumental.62 Here it may be noted that insfrumental facts and rights
fall into two groups: (a) those which are rigid as fixed by the constitu-
tion or as fixed by statute (either directly or indirectly, e.g., organization
of courts including jurisdiction, process, the pleading system, effect of
judgments, execution), and (b) those which are flexible, being fashioned
by the courts for general operation or by the trial judge in the concrete
case (e.g., number of witnesses, limitation of argument, burden of proof,
burden of going forward, etc.).63 Under the federal system, it seems desir-
able where federal rights are involved in state litigation, that flexible state
applications give way in favor of a uniform federal rule and application.
Contrariwise, where state rules are applied in the federal courts, it
seems desirable that the litigant should be put in the same position so far
as convenient, with respect to procedural matters as if the litigation
occurred in the state court.6 4 It is well known that prior to the case of

61. It would seem, 'therefore, that problems involving a single jurisdiction do not
essentially present the problem of the distinction of telic and instrumental rights, even
when they appear so to do. For example, where a statutory time limitation is abbreviated,
the real question is not whether the power of suit is telic or instrumental but whether the
power can be abbreviated. See Bell v. Morrison, 1 Pet. 351 (U. S. 1828). Vested property
rights may not be abridged but a statute of limitations is not a vested property right.
62. See Central Vermont Ry. Co. v. White, 238 U. S. 507 (1915); Barnet v. N. Y. C. &
H. R. R., 222 N. Y. 195, 118 N. E. 625 (1918).
63. Much can be said in elaboration of this idea, and no doubt, also, much against its
validity.
64. It will follow, of course, that inconsistent applications will be found in thi federal
courts due to underlying differences of decision in the various states. Thus, in Francis v.
Humphrey, 25 F. Supp. 1 (E. D. Ill. 1938), the Illinois rule requiring the plaintiff to plead
absence of contributory negligence, was applied, while in MacDonald v. Central Vermont
Ry Co., 31 F. Supp. 298 (D. C. Conn. 1940), it was held that contributory negligence is an
affirmative defense to be pleaded if the state law treats it as procedural.
It may be pointed out that state rules governing the requirements of pleading, allegation
and burden of proof, even when they are denominated in judicial application as being
rules of "substance" or "procedure" do not essentially raise the question of the validity of
the distinction or the correctness of the application.
19411 SUBSTANCE AND PROCEDURE
Erie Railroad Co. v. Tompkins, 5 one of the reasons for seeking out the
federal court often was the advantage provided in that forum in the
instrumental rules as well as in the telic rules.
To sum up, neither of these two classes, where the classification of telic
and instrumental is employed, has any essential relation to the problem
of what the distinction actually is. Arbitrary terms could be employed
in these cases without affecting the result. (There is an important excep-
tion arising from the adoption of the new Rules of Civil Procedure for
District Courts. This exception will be discussed later in this paper.)
It seems to be otherwise, however, in Conflict of Laws. Here, we believe,
is the only instance (with the exception just noticed), where the' distinc-
tion has any essential importance. 6 Now, why is that so? The reason,
shortly stated is that from the beginning of Conflict of Laws as a separate
and recognizable field of law, the rule has prevailed in all parts of the
world, which employ the "territorial" as against the "personal" theory of
law, that rules of procedure are for the forum. 7
Reference to Foreign Legal Rules-A Digression. The "territorial"
theory was not a complete change in or abandonment of the "personal"
theory of law. It resulted only in a simplification of the rules. 8 Instead
of the complicated rules involved in a "personal" application of law, the
accent was put not on the parties involved in a jural relation but on the
jural relation itself.6 9 Briefly stated, the jural relation in litigation was
regarded as having a special connection with a given state domain because
the originative facts arose there, or, because, in certain cases, the duty
was to be performed there, or, in other cases, because the res was situated

65. 304 U. S. 64 (1938).

66. Even here, Professor Cook probably would take the position, that the distinction
does not essentially appear. The argument could or would probably run more or less as
follows: The courts reach certain results based on ideas of legal policy. They or others
may attempt to create concepts and classifications to explain the results, but the true
reality resides in the objective facts, and in the intellectual creation of concepts and
classifications. Our position on this ancient philosophical problem, in a word, is that con-
cepts and classifications are discovered and not made.
67. GooDScH, CoNrucr or LAws (2d ed. 1938) 187.
68. The familiar statement of Bishop Agobard of Lyon points out the difficulties of
application of law based on a "personal" reference: "Nam plerumque contingit ut simil eant
aut sedeant qtdnque hornhies, et nullus eorum legem cum altero habeat... " See V[Nqo-
oRADO5r, RomrAH LAW i MrnfIvAL EuRoE (1909) 16 et seq.
69. See von Bar, Internationales Privat, Straf, and Verwaltungsrecht, 2 ENzYx, DER
REmHsTcssWENscHAr (Holtzendorff-Kohler, 1914) 226-280, especially page 235 et seq.
Roman law did not achieve a system of Private international law. See Husserl, The
Foreign Fact Element in Conflict of Laws (1940) 26 VA. L. REV. 243 et seq., 453 et seq.,
especially page 263.
 FORDHAM LAW REVIEW [Vol. 10

in that domain, or, again in other cases, because one or both of the parties
was domiciled in or was a subject of that territory. Under the medfieval
view a man carried his law with him wherever he went. Under the modem
view a man still carries with him his domicile (in Anglo-American law)
or his nationality (in European law). But for questions not arising out
of domicile or nationality, the applicable law (in general) is determined
by the place where the originative facts occurred or where the res is
situated.
The points we wish to make in this connection are: (i) that the "terri-
torial" connection was unnecessary; 70 (ii) that there is some evidence of
its abandonment in special cases,' and (iii) that the law of foreign refer-
ence could be and would be significantly simplified if such foreign ref-
erences were limited to instances where such reference is unavoidable or
based on sound policy. 2
Return to the Nature of the Problem. We have sought to show that
the problem of "substance" and "procedure" in strictness can arise only
in that field of existing law which is based on a reference to foreign
law. We have also sought to point out, by way of digression, that
that field in sound theory should be cut down to narrow limits. We have
also attempted to show that the classic view that there is a sharp dis-
tinction between "substance" and "procedure" is correct, and, as a logical

70. We have atfempted to show elsewhere that the attribution to a legal relation of the
quality of physical position is a fiction. KocounEx, op. cit. supra note 41, at 236 et seq.
71. Cook, 'Contracts' and the Conflict of Laws: 'Intention' of the Parties (1938) 32
IL.. L. Rav. 899.
Suppose two men, domiciled respectively in X and Y, ascend together in an airplane at
New York for a trip to Los Angeles. They discuss and make a machinery contract. The
machinery is to be made in states R, S, T, and deliveries are to be made in states U, V, W.
A check for $100,000 is delivered, etc. The unreality of a territorial connection is here
beyond doubt. The parties may, perhaps, select the lex fori, but our suggestion is that if
the parties do not designate the forum, questions which arise should be decided as questions
of domestic law regardless of foreign reference, leaving it open to the aggrieved litigant to
select any forum thaf he chooses which has "jurisdiction."
72. "Investitive facts generate as many legal relations as there are states which give
them independent recognition." KocouaEX, op. cit. supra note 41, at 236. On this basis the
domestic law of the forum on grounds of policy and convenience would resort to a foreign
reference in such matters as those involving land, succession, and domestic status, as the
rules now provide, but the law of contract and of tort would cease to be a subject-matter
of foreign reference. The law of renvoi also would completely disappear. It may be
answered-"good! but that is not the law as it stands." Our answer is that ff the law as
it stands is based on a pure fiction and a false theory of the nature of right, then the law
as it stands should be changed. Whether, in fact, it will be changed is a matter of indifference
to legal science.
1941] SUBSTANCE AND PROCEDURE
corollary, that there is no "twilight zone" which because of external ref-
erence to purpose changes the conceptual nature of the distinction.
If this conclusion, asserted with so much confidence, is true, then why
has the problem so often arisen with such highly contradictory results in
the reasoning of courts and especially of legal theorists?
An attempt will be made in what follows to explain the various reasons
for this situation, but the general nature of the problem may perhaps be
understood by putting a physical illustration: A symphony orchestra is
playing a work which is transmitted by radio. In the present state of radio
art the work will not be exactly reproduced. Certain ranges of tone will not
be heard and there will be distortions of the tones transmitted. The broad-
casting equipment and the receiver are the analogue of "procedure"; the
symphony as originally played is the analogue of "substance." That is
the situation in our problem. The telic rights created in state X are not
reproduced in the instrumental application in state Y, unless it is assumed
that there are actually no differences and especially that the instrumental
rights are precisely the same. We believe we have now isolated the cause
of the difficulty.
Suppose that in state X one witness suffices to establish a creative fact
(i.e., a telic fact). Suppose by the rule of the forum (Y) the civil law
rule prevails, requiring two witnesses for plena probatio.71 This is a rule
of evidence; it is also, it seems to us, clearly enough, an instrumental
rule. If only one witness is available, it is plain that the plaintiff's telic
right is fatally obstructed. Examples of this sort can easily be multiplied.
Does such a failure in instrumental transmission of an essential element
of the telic right raise a reasonable doubt as to the validity of the distinc-
tion? We think not. The case put does not differ in principle from that
in domestic law where the sole witness of a fact dies. These are among
the many accidents of litigation. 4
73. "Unius responsi testis onnino,non audiat'ur." 3 BLACxSTOxE, CoI NTARMIs (13th
ed. 1800) 370.
74. For domestic law to avoid some of these procedural accidents there are made
available the deposition de bene esse, the dedimus potestatem, interrogatories, etc. The same
procedures, in thfe proper case, are available in litigation involving foreign reference but
where the procedure of the forum is not adjuvent but frustrative there is no legitimate
way out except by treaty among the states to deal with these problems. Much of the
conflict in the case-law probably is due to the wish to give relief based on the fiction that
many of these procedural obstructions are, usually contrary to the fact, "substantive" in
nature. As for the fiction, it is here no more entitled to scientific respect than elsewhere.
It is manifestly a falsehood parading in the habiliments of benevolence but it is none the
less a moral affront to the law.
For those who deny any distinction between "substance" and "procedure" we put the
following case: A large piano is to be placed in a room. There is no window or door or
 FORDHAM LAW REVIEW [Vol. 10

With the foregoing explanation of the distinction between "substance"

and "procedure," we rest our theoretical consideration of the problem.
There remains, however, a testing of the distinction in concrete applica-
tions. For that purpose we now proceed to consider a variety of problems
where the validity of the distinction is crucially presented.

II
The Statute of Frauds.5
This celebrated statute has the effect of con-
fronting us with a variety of problems of unusual difficulty.7 6 These diffi-
culties are due to two features: (i) lack of legislative clarity resulting in
ambiguity and even contradiction; "7(ii) lack of theoretical consistency in
78
the decisions.
There is no doubt of the object of the statute. It was entitled "An Act
for Prevention of Frauds and Perjuries." The doubt arises as to how
prevention was to be effected. Does prevention operate as a rule of
evidence, as some formulations of the relevant statutory language seem
to indicate? 70 Or do the words indicate that a non-conforming transac-
tion is wanting entirely in legal effect? 0 Or does the statute mean that
the non-conforming transaction is valid unless procedurally opposed? 8 '
2
There are affirmative answers for each of these alternatives.
Obviously we are not concerned here with the detail of what has been
other opening which will admit the piano. Let us call the piano "substance" and let us
call the openings "procedure." The test of any right, so the argument runs, is whether you
can enforce it. Since the piano can not be introduced into the room, therefore it doesn't
exist. The argumenf is sound as applied to a single jurisdiction, but it is unsound as applied
to plural jurisdictions where alone the problem actually arises. The piano remains a piano
whether it can be introduced or not. Other features and applications of this illustration are
obvious.
75. See Lorenzen, The Statute of Frauds and the Conflict of Laws (1923) 32 YALE L. 3.
311; McClintock, Distinguishing Substance and Procedure in the Conflict of Laws (1930) 78
U. or PA. L. Rxv. 933.
76. TEaRY, THE Co aIoN LAw (1906) 218 et seq.
77. Following are some of the variations which bear on the problem: "be in" writing;
"be made in" writing; be "manifested and proved" by writing; "no action shall be brought;"
"shall [not] be allowed to be good;" "is not valid;" "is void;" "shall not be binding;"
"shall not be liable;" "shall be utterly void and of no effect." A review of American
forms of the statute will disclose numerous other variations. For an annotated compilation
of all American statutes, see Sarr, THE LAw oF FRAUDs (1907).
78. We refer, of course, to single jurisdictions. The conflict between jurisdictions on these
questions is notorious. See GooDIcH, op. cit. supra note 55, at 205-208.
79. TEaY, LEADING PRanCIPLES or ANGLo-A.r-AiCAN LAW (1884) 159, 245.
So. E.g. SALmoND, JvaRispaunDac (3d ed. 1910) 445.
81. This is the prevailing view.
82. Lorenzen, supra note 75.
19411 SUBSTANCE AND PROCEDURE

adjudged on these preliminary questions. Still it is necessary to take a

position on them so far as they bear on the problem. If the transaction is
interpreted as being wholly void, then the rule that makes it void falls
under "substantive" law. "Substance" includes both the positive and nega-
tive aspects of the rule. The rule determines here, under this interpreta-
tion, the question whether oral facts create or do not create a legal
right. s3 We have not encountered any support in this generation for this
view in the case-law and we believe it can not be supported either in
principle or authority, 4 If the statute deals either with a rule of evidence
or with a procedural defense, it seems clear that the question is one that
falls into the procedural field.
The choice as between evidence and procedural defense is itself an
interesting minor problem. We have already shown above that the entire
telic situation8 5 is reproduced in the litigation series. It is a rule of our law
that the statute must be pleaded. The question therefore is raised in the
pleading stage and not in the evidence stage.8" Oral evidence, under the
statute, may be admitted if there is no objection when the evidence is
offered, but the power to object rests on a prior procedural defense raised
by the plea. For these reasons, it seems clear that the question is not
primarily one of evidence.8 7
We believe it can hardly be doubted that the problem of the Statute of
Frauds so far as it concerns our domestic law is one of procedure and not
of substance. So far as concerns rights of foreign incidence, where alone
the problem actually is involved there is a division of authority in the
83. Perhaps it needs to be said that a "no-right" is not a matter of "substance" or of
"procedure" either. The problem whether a right comes into existence is one of "substance"
under the interpretation discussed and is not "procedural."
84. The Stafute of Frauds contained twenty-five sections. All of these sections except
sections four and twenty-three have been repealed in England. We refer here to section
four. For a full discussion of the whole matter (limited to section four) see WirzAams,
THE STATuTE OF FRAus (1932) xxv, 194-211, 275-279.
85. See the diagram above (Stages I-IV).
86. Where the defence may be raised by the plea of general issue (which was the
procedure at common law prior to the judicature Acts) or by a demurrer in equity, it seems
that the question is not one of pleading but becomes one of evidence. Cf. WiLmAmS, op. cit.
supra note 84, af 275 et seq.
87. There is a curious rule that an oral contract (which creates only an imperfect
right) can be perfected only by a writing prior to an action based on it; or where a
party later joined relies on it, must be perfected prior to such joinder. See, WnLIAms, op.
cit. supra note 24; at 78, 210 et. seq. It has been suggested, that this rule indicates that
the Sfatute of Frauds involves "substance." If it does, it is a contradiction of allother rules
bearing on the question, at least in Anglo-American law. We believe, however, the rule
is simply one of administrative convenience and has no other than a purely procedural
explanation.
 FORDIJAM LAW REVIEW [Vol. 10

courts and among theoretical writers. We must, however, continue to

insist that the question has only one answer and that if, as we think, the
Statute of Frauds involves procedure and not substance, that fact is in
no way altered if and when the usual rule, that matters of procedure are
for the forum, is modified. s8
As to rights of foreign incidence it has been the prevailing rule in
England and America that the Statute of Frauds involves questions of
procedure and not of substance. The leading case of Leroux v. Brown"
ruled (under section four) that an oral contract made in France and
valid under French law could not be enforced over objection, in Eng-
land. The rule of the civil law countries is otherwise either because
they have no Statute of Frauds or because the statute or the application is
different. 90 The Statute of Frauds in stating that "no action shall be
brought" etc. did not distinguish between domestic and "foreign rights."
The court might well have restricted the statute to a domestic reference.9 1
Nevertheless the question still remained one of procedure whatever the
application. 2 We do not therefore attempt to take any position here on
88. GOODRICH, op. cit. supra note 55, at 205 says: "It would seem that the preferable
view is to regard it as a matter of sustance...."
89. 12 C. B. 801, 138 Eng. Reprints 1119 (1852).
90. See Lorenzen, supra note 75, at 332. Professor Lorenzen points out that continental
experts distinguish between "mode" of proof (substance) and "administration" of proof
(procedure). Id. at 329.
91. Professor Goodrich made this point. GooDRI cH, op. cit. supra note 55, at 207.
92. We find it difficult to understand how any reasonable doubt can be raised on this
conclusion; nor do we understand the line of reasoning sometimes used in criticism of
Leroux v. Brown, 12 C. B. 801, 138 Eng. Reprints 1119 (1852). Thus Professor Lorenzen
says: "Ideas of right and remedy are inseparable." (True but they are not the same
ideas.) He says again: "Even if it were conceded . . . that the statute of frauds falls fairly
within the definition of a procedural rule, it would not follow that it may not be 'substantive'
as well." Lorenzen, supra note 75, at 326. (We do not understand this sentence). Again,
-" . . . a stature affecting the entire existence of a legal remedy . . . is a rule determining
righfs and duties." Id. at 327 (Query, suppose by the law of X a spouse may be a witness
but not by the law of the forum?) In conflict of laws " . . . all matters of procedure
are submitted to the law of the forum." Id. at 327. (This rule either in sound policy or in
actual practice may go too far, but in any case the author's thesis is not helped.) "It is
impossible to set up a special machinery for 'foreign causes' of action. . . ." Id. at 328.
(Why impossible? By treaty? By administrative arrangements? By legislation? In any
case, irrelevant.) "The label . . . matters little. It may be dearly 'substantive' or both
'substantive' and 'proceduraP or possibly even exclusively 'procedural'. . . " Id. at 332.
(It seems clear, however, that Professor Lorenzen wishes to keep the rule that, as he puts
it, "all" matters of procedure are for the forum, and bend the application of the Statute
of Frauds to a substantive operation. We respectfully suggest it would be easier and better
to modify the rule than to mutilate the conceptual and real distinction between substance
and procedure).
 19411 SUBSTANCE AND PROCEDURE
whether Leroux v. Brown was or was not correctly decided. We say only
the question raised and decided was one involving procedure. 9a
The Statute of Limitations.4 A distinction must be made between the
limitation of actions and the prescription of rights. Thus, if A's chattel is
converted by B, A's power of action may be barred by lapse of time. If
that is the only effect, the statute is one of limitation of actions.9 5 If, how-
ever, the effect is not only to defeat the action but also to destroy A's
rights as owner of the chattel, the statute is one of prescription of rights.9 "
In our law, in general, statutes of limitation are procedural while statutes
of prescription are matters of substance.9 7 The results reached by the
courts on the general problem are in accord with sound theory, so far as
these results are based on the distinction of substance and procedure.98
93. We do not doubf that it is legislatively possible that a statute of frauds might be
enacted which would make certain oral promises and undertakings "void" and not merely
"ineffective," "unenforcible," or "invalid." Tha is the case for deeds, wills, promissory
notes, and certain other transactions. See TEmRY, TEM Comaox LAw (1906) 218. Why
much legislation declaring certain transactions to be "void" has failed in judicial application
would be in itself an important and interesting chapter in the law. Such legislation if
declared and if applied by the courts would present a rule of substance but section four is
not such a statute. Under it oral transactions are not "no-rights" but are "imperfect"
rights.
94. WOOD,LmnATOxO oF AcrioNs i, LAw AND iN EQUrrY (4th ed. 1916); GOODRICHE,
CoNmIcr or LAws (2d ed. 1938) 201-205; Lorenzen, The Statute of Limitations and the
Conflict of Laws (1919) 28 YAxm L. '. 492; TERaRY, LPADInG Pp aiprLEs op ANGLO-AmFCA_
LAW (1884) 301-305, 321; SAI.oND, JuRiSpRUDEN E (3d ed. 1910) 414-418.
95. Miller v. Dell [1891] 1 Q. B. 468, 7 T. L. R. 155 (C. A.) (dictum).
96. See Chapin v. Freeland, 142 Mass. 383, 8 N. E. 128 (1886); Townsend v. Jemison,
9 How. 407 (U. S. 1850).
97. In the case of choses in action in nearly all American states, the statute is one of
limitation of actions. It is of course possible to enact statutes of prescription for choses
in action which would destroy the "right." This raises an interesting analytical problem.
In the case of the conversion of a chattel, B II (diagram supra page 167) is the right affected
by prescription? For the purposes of assumpsit, IV (a) (diagram supra page 167) is the
relation affected (since II no longer exists because of the breach) but for the purpose of
prescription, II is the relation which is prescribed. On that basis the results are equivalent.
98. Whether sound policy justifies the results apart from the theoretical distinction is
another matter. The fact that various states have enacted rules requiring the forum to apply
the rule of the foreign state, if the parties have been residents of the foreign state during
the time limited, is persuasive on the question of policy. Judge Goodrich seems to suggest
that in such case the statute necessarily is substantive in its operation. GooDRIcH, op. Cit.
supra note 55, at 202. We can not agree. If the statute is one of limitation in the foreign
state it is not made substantive by adoption at the forum. The distinction between
substance and procedure is fixed not only by its fundamental nature but also verified by an
overwhelming mass of judicial practice which seeks to bring this idea to practical
manifesfation. The better solution, we respectfully submit is to consider such a case as a
departure from the general rule. We do not undertake to consider whether such a departure
is in accord with sound policy.
 FORDHAM LAW REVIEW [Vol. 10

Difficulties arise when new elements are injected. Suppose by the law of
X, action on a sealed instrument is limited to ten years and that by the
law of the forum (Y)seals have been abolished and that the limitation
is five years. Can the action be maintained in Y after five years? The
form of the action (covenant in X and assumpsit in Y) is for the forum;9 9
it is procedural. 1° 0 Since the forum provides no remedy other than
assumpsit, the limitation applicable to assumpsit must be employed unless
the statute itself makes an exception for such a case. 1 '
Conclusive Presumptions.'2 Presumptions are rebuttable or conclu-
sive. Thus, at common law, a bond or receipt under seal imported con-
sideration. This was a rule of law in the form of a rule of evidence. On
the other hand, absence for seven years without explanation of the ab-
sence, raised a presumption of death which could be rebutted. This also
is a rule of law. "In a shipwreck, in the absence of other facts, the proba-
bility that a strong man who was a good swimmer outlived his companion,
a feeble invalid, unable to swim," is contrasted with the other cases by
Thayer as resting on its probative quality and not based on a rule of
law.'3 "... through rules of presumption, vast sections of our law have
accumulated," says Thayer. 04 It seems that Thayer would regard all pre-

99. Cf. LeRoy v. Beard, 8 How. 451 (U. S. 1850) (deed sealed with scrawl in Wisconsin
where breach of covenant was suable in covenant; assumpsit in New York where a wafer was
necessary to constitute a sealed instrument, held, action proper.
100. Professor Lorenzen who thinks that the Statute of Limitations is a matter of
substance probably would agree with this answer on the ground that the Statute of
Limitations touches an interest of the state where the law of the situs and the law of the
forum differs. Lorenzen, supra note 94, at 498. If, however, the situation were reversed
(e.g. X has a five-year statute and Y a ten-year statute, Professor Lorenzen, it seems, would
say the action should be barred. We do not agree. We believe the Statute of Limitations
is a matter of procedure in both cases. Whether "sound international practice" would require
a different result is not our problem.
101. Difficulties of another sort arise out of the rule that the statute does not run
when the debtor is beyond the jurisdiction. This rule applies to foreigners as well as to
residents. As to the foreign debtor, the statute does not begin to run until he reaches
the forum. Strithorst v. Graeme, 3 Wis. 145, 95 Eng. Reprints 980 (K_ B. 1770); Williams
v. Jones, 13 East 439, 104 Eng. Reprints 441 (1811); Lafond v. Ruddock, 13 C. B. 813,
138 Eng. Reprints 1422 (1853). In Graves v. Weeks, 19 Vt. 178 (1847), the defendant, a
New York citizen temporarily in Vermont, was sued by a New York citizen on a debt barred
by the law of New York. The plaintiff recovered. The result furnishes an argument for a
change in the rule. That change has come about by statute in many states.
102. THAYER, PREimi"ARY TREATISE oN Evmc ac (1898) 313-352; TERRY, LEADING
PRmCiPLES OF ANGLo-AMERICAN LAW (1884) 51; TERRY, THE Commror LAw (1906) 136,
139; SALmoND, JURisPRUDENcE (3d ed. 1910) 451 et seq.
103. THAYER, op. cit. supra note 102, at 340.
104. Id. at 327.
1941] SUBSTANCE AND PROCEDURE 179

sumptions not resting on probative quality alone as matters of substantive

law, whether the presumptions are conclusive or rebuttable. The Anglo-
American law of foreign rights regards conclusive presumptions as "sub-
stance" and rebuttable presumptions as "procedure."'0 5
A third view is possible, viz., that all presumptions are procedural. The
argument is this: persuasion is a procedural condition, and even where the
presumption is irrebuttable the object is probative and not definitive of
the right. This argument presents a question of interpretation of the legal
nature of presumptions and especially of irrebuttable presumptions. We
are disposed to believe that the prevailing American distinction is to be
preferred as against the other two views. 10 6
The ParolEvidence Rule. 0 The problem here is connected with the
question which arises under the Statute of Frauds and also under con-
clusive presumptions. The answer here should be the same. On the pre-
liminary questions, the courts divide, and inconsistency may be found
even in the same jurisdiction. 0 8 If parol evidence has no legal relevancy,
then it is like any irrelevant evidence-it has no legal effect for any pur-
pose-and a judgment based on such evidence is erroneous and voidable,
assuming of course that the proper procedural objection has been en-
tered on the record. If, however, parol evidence may support a judgment
in the absence of procedural objection, it is not irrelevant or ineffective.
In one case it is a matter of substance based on the conclusive presump-
tion of irrelevance. In the other case, it is a matter of procedure. In the
latter case the rule is not vitiated; it embodies a rebuttable presumption
which requires affirmative procedural action for application. Under this
view "the parties may by agreement express or implied, accept oral testi-
mony instead of the presumption ordinarily arising from written evidence.
They have a right to make a rule of evidence for their own case."10

105. GooDa .n, op. cit. supra note 55, at 197 et seq.
106. The tendency in legal development has clearly favored a declining role for the
conclusive presumption. See SALmoND, op. cit. supra note 102, at 451 et seq.
107. TrAYER, op. cit. supra note 102, at 390-483; 9 WiGmoRr, EVIDENCE (3d ed. 1940) 3.
108. Brady v. Nally, 151 N. Y. 258, 45 N. E. 547 (1896) (an entire contract to furnish
labor and materials for a gross sum may be modified and a claim for installment payments
based on partial performance be established by oral testimony, if not challenged before the
close of the trial). Union Bank v. Case, 84 N. Y. Supp. 550 (App. Term 1903) (parol
evidence admitted without objection is in the record for all purposes-the rule is one of
evidence). Stanton v. Granger, 125 App. Div. 174, 109 N. Y. Supp. 134 (2d Dep't 1908),
aff'd 193 N. Y. 656, 87 N. E. 1127 (1908) (contract under seal, question raised by demurrer
-parol evidence rule is more than a rule of evidence--it is a matter of substance). See 1
WG QmoR, EviDaNcs (3d ed. 1940) § 18; 9 WiGmoRE, id. § 2592.
109. Brady v. Nally, 151 N. Y. 258, 264, 45 N. E. 547, 549 (1896).
 FORDHAM LAW REVIEW [Vol. 10

Professor Thayer took the position that the parol evidence rule is not a
matter of evidence" 0 and he seems to regard it as a matter of sub-
stance."' We believe Thayer is right in the first position-that the parol
evidence rule does not belong to the law of evidence."'
Remedies. This term unfortunately is not always used in the same
meaning. It may embrace at least three different ideas: (i) it may be
limited to the meaning already suggested [diagram, IV (a)]; (ii) it may
include that meaning plus a power of suit [IV (b)] ; (iii) it may embrace
(solely) all the concrete processes (and their underlying powers) em-
ployed for redress of violated rights (i.e., all adjective law).
In this discussion we shall adhere to the meaning already chosen above
[i.e., that indicated by diagram IV (a)]. In a word, we shall understand
by the term "remedy" all the abstract right-duty relations which follow
upon a violation of rights. We do not include under "remedy" either
(a) the power of suit or (b) the concrete steps (and their underlying
power relations) which normally follow the commencement of suit.
In the field of foreign rights, it is the prevailing theory that the foreign
right has an exclusive foreign origin but that the violation of this foreign
right may be the basis of a suit elsewhere (the forum) subject to the
rule that matters of procedure are determined by the law of the forum
while matters of substance are administered by the forum as if it were,
pro hac vice, a foreign tribunal. This is a very curious theory-it makes
the forum a domestic and a foreign tribunal in the same litigation-but
there is little doubt that this theory is actually dominant not only in
the courts but also in the views of the majority of experts.
We have suggested above that a more simple theory was and is possi-
ble; i.e., to look upon rights as created in as many states as give it rec-
ognition. No comment or explanation is necessary to show that the law
of foreign rights together with that singular logical complication, the
renvoi rule, would be reduced to small proportions. Courts would not be
called upon to function in the same litigation as domestic courts for one
purpose and as foreign tribunals for another purpose. It may also be
pointed out that the distinction of "substance" and "procedure" would
seldom have arisen as a special legal problem except for the theory of
foreign rights which now prevails.

110. THAYER, op. cit. supra note 102, at 390; 9 WicmoRE, EVIDENcE (3d ed. 1940) 3:
. . . the rule is in no sense a rule of Evidence, but a rule of substantive law."
111. THAYER, op. cit. supra note 102, at 391; 1 WIGMORE, EVIDENCE (3d ed. 1940) § 5;
9 WiGuORE, id. §§ 2400, 2425.
112. It does not necessarily follow that the rule must in consequence be substantive.
Adjective law embraces not only pleading and evidence but also practice.
19411 SUBSTANCE AND PROCEDURE

The difficulties of application of the distinction are more acute at the

point here under discussion than elsewhere. Questions concerning the
nature of the rules dealing with the Statute of Frauds, the Statute of
Limitations, burden of proof, presumptions, the parol evidence rule, and,
especially, process, pleading, evidence, practice, damages, exemptions,
etc., are relatively simple as compared with the problem now under con-
sideration.
Under the theory which prevails, the remedies offered in X may not be
available in Y (the forum). Thus the plaintiff may be entitled in X to
integral restitution of a certain kind of chattel. Several situations are
possible in Y. The forum, (a) may not recognize any form of specific
enforcement for any chattel; (b) it may not recognize the remedy of
specific enforcement in any case; (c) it may not recognize specific en-
forcement for the chattel in question. The right to have integral redress
is clearly a substantive right in X, but if the forum does not in any way
provide the procedural relief to enforce the right, the nature of the right
is in no manner altered. It is still a telic right in X, but it does not exist
in Y. If, however, the forum affords relief by way of specific enforce-
ment in any case (e.g., other chattels, land exclusively), the forum as a
matter of sound policy should recognize the right since recognition does
not involve creation of new procedural machinery.
The question arises here, under the prevailing theory, how much of
remedy and how much of power of suit must exist in X to warrant
recognition in Y? We have already suggested that an asserted right must
have at least a minimum of recognition both in the form of remedy
[IV(a)] and in power of action [IV(b)] in X before it will be recognized
in Y. If, improbably, the forum does not recognize any remedy [IV(a)]
or any procedural redress (V), then the right simply does not exist in Y.
While the situation where the forum does not recognize any form of
remedy in its domestic law or any form of procedural redress for the
foreign right, is hardly likely to occur, yet there are instances where as
to foreign rights the forum (a) does not afford a domestic remedy in a
similar case and (b) either extends or restricts the procedural relief as
against the procedural relief available at the situs (X).
An example of the first case (a) is this: Suppose the law of X recognizes,
and the law of Y does not recognize a right of privacy. The forum (Y)
will afford relief. Contrariwise, if X does not recognize a right of privacy
and Y does, the forum (Y) will not give relief.
Suppose again that A (creditor) and B (debtor) are residents and
citizens of X, that the debt was contracted in X, and that by the law of X,
B is not liable to arrest. Suppose by the law of Y, (the forum) a debtor
 FORDHAM LAW REVIEW [Vol. 10

may be arrested. The forum will apply its own domestic law because
arrest is exercise of a procedural power. 113
Another interesting variation of the problem is put by Judge Goodrich.
"Suppose a promissory note, negotiable in form, is executed and delivered to the
payee and indorsed to a holder in due course in a state where such holder takes
free from any set-off the maker might have against the payee. The holder sues4
the maker in another state, where such matters may be pleaded in set-off.""1
The general rules governing the power of set-off are procedural but the
example put goes beyond a mere matter of procedure and touches a matter
of substance. The set-off rule of the forum creates a new substantive rule
which creates an incumbrance on a promissory note. The power of set-
off runs with the note. It will readily be admitted on the contrary that
where in state X a set-off is recognized as available in all cases, in and
outside of litigation, but where Y (the forum) excludes procedural set-off,
that the question is one of procedure. Where procedural relief either is
not available or is expressly prohibited, substantive rights may fail since
in case of conflict, the procedural rule will prevail.
The courts have gone far to uphold without modification the existing
practices, policies, and rituals of the forum. Thus, in a leading case," 5
it was held that where a tort was committed in a foreign country which
made provision, in event of recovery, for an alterable installment judg-
ment, that the American forum would not entertain the suit. This harsh
result is due first to an erroneous theory of foreign rights and next to
an overemphasis of the forum's ritual.
We need not multiply instances.
The distinction which we have sought to investigate has taken on an
unnecessary importance. It is an historical accident. It has a place only
in the law of foreign rights."' If the underlying theory of that field of
law had not come into existence it does not seem probable that the dis-
tinction would ever have been noted as a legal problem apart from the
problem of legal classification." 7 The underlying theory which gave it
birth was a monster but the progeny of this monster has multiplied with
113. De la Vega v. Vianna, 1 B. & Ad. 284, 109 Eng. Reprints 792 (1830).
114. judge Goodrich believes this question is one of substance. GOODRICH, op. Ct. sUpna
note 55, at 192, referring to RESTATEMENT, CoNrmLcT OF LAWS § 593 comment a.
115. Slater v. Mexican Nat. R. R. Co., 194 U. S. 120 (1904).
116. We have used this expression as a verbal convenience. It can be shown that no state
ever applies a foreign right. The right in these cases is always a domestic right with a
foreign reference.
117. We must insist, however, that even if the distinction had never found an application,
it would still exist.
 SUBSTANCE AND PROCEDURE
the most astonishing fecundity. We know of no instance of development
of a legal idea which is comparable in its effects.
Much as we may regret the existence of this unnecessary problem,
yet, we can not withhold our respect of the mental power that has entered
into its application and development, or our admiration of the general
logical consistency of the rules and doctrines that have been employed
in the judicial application of the distinction.
The case of Jacobus v. Colgaten s presents an interesting variation of
the problem of "remedy." It also involves a pervasive feature which has
a wide range of application. A statute was enacted in New York per-
mitting the bringing of action for damage to land in other states. An
action was brought in New York for a land tort committed in Kansas
prior to the statute. One of the questions much discussed was whether
the statute operated retrospectively. The rule was invoked that retro-
spective operation is permissible as to matters of procedure but not as to
matters of substance. The majority thought the case involved a matter
of substance. The minority thought it was a matter of procedure. The
holding we think can be supported on the view that no statute has a
retrospective operation unless it clearly so provides. This rule applies
as well to matters of procedure as to matters of substance. If, however,
retrospection touches a matter of substance, then, of course, a question
of constitutional law may be involved.
The majority took the position that until the statute was enacted,
there was no remedial right [IV(a)] which would be recognized in New
York for a foreign land tort. The minority took the position that a
remedial right did exist in New York but that no direct action could be
maintained over the objection of the defendant; in other words, that a
judgment based on a foreign land tort was not voidable in New York in
the absence of procedural objection. This feature of the court's dis-
cussion arises often in various settings, and it raises a fundamental
question.
Is this kind of situation comparable to (let us say) one where a rule of
substantive law requires consideration? In a suit on an alleged contract
where there is no showing of consideration, it seems where the defendant
has been duly summoned and the court has juridiction, that a judgment is
not voidable where the defense of want of consideration has not been
raised by the defendant. Suppose, again, the plaintiff sues in assumpsit
and fails to present any evidence whatever supporting his declaration.
Let us suppose further the defendant has been summoned, that he files

118. 217 N. Y. 239, 111 N. E. 837 (1916).

 FORDHAM LAW REVIEW [Vol. 10

a plea of general issue, offers no evidence on his own account, makes no

objection to the plaintiff's evidence and that there is no exception noted
or motion for new trial or arrest of judgment, and that a judgment follows.
Would that judgment be voidable? Probably not. We are speaking here
of common law procedure and not of equity. What bearing, if any, has
this kind of situation on our problem?
We are disposed to believe that these procedural situations throw no
light on the question. In a no-defense case (i.e., where no defense is
made) there is no difference observable in the results between a no-right
and a right good unless there is a procedural objection. Thus, the case
where A sues on an alleged contract which has never existed and gets a
judgment, is not in any manner different in the result from the case where
A sues on a claim barred by limitation where no plea is filed or objection
made. The results are the same, but the cases are different. One is
a no-right; the other is an imperfect right. But how may this difference
be shown procedurally? We venture to suggest that under common law
pleading the crucial test could be made by a motion for a directed verdict,
by motion for a new trial, and, lastly, by motion in arrest of judgment.
On the view, therefore, that there is an actual and demonstrable
difference between a no-right and an imperfect right, the answer to the
question here under consideration depends on what the New York court
would do under each hypothesis. Oh a record disclosing a no-right, the
court would arrest the judgment. On an imperfect right (no procedural
objection having been raised) the court would enter a judgment for the
plaintiff . 9
Another way of putting it, is to say that substantive rules in our law
can only be changed by contract based on consideration, but that pro-
cedural rules may be waived without consideration and by unilateral
positive act (express procedural waiver) or by unilateral negative act
(e.g., failure to make procedural objection, i.e., absence of plea, absence
of objection to introduction of evidence, absence of motion to strike).'°
On this basis of reasoning we see no escape from the conclusion that
the question involved a matter of procedure and not one of substance.
Similar reasoning is applicable to the question of the Statute of Frauds,
the Statute of Limitations, the parol evidence rule, rebuttable presump-
tions and other like instances.
One more problem, of recent origin, may conclude our survey. Just
119. Sentenis v. Ladew, 140 N. Y. 463, 465, 35 N. E. 650, 651 (1893).
120. In equity, where the decree must be supported by a satisfactory certificate of
evidence or findings in the decree, a question of substance could be raised after decree and on
appeal.
 1941] SUBSTANCE AND PROCEDURE
prior to the abrogation of Swift v. Tyson'2 ' in Erie Railroad Co. v.
Tompkins,' 22 the Supreme Court promulgated the Rules of Civil Pro-
cedure for District Courts. 3 The enabling act of Congress provided that
"Said rules shall neither abridge, enlarge, nor modify the substantive
rights of any litigant."'124 One of the rules' 25 provided for a physical and
mental examination in actions where the physical or mental condition
of a party is in controversy.
In the absence of a valid rule requiring a litigant to submit to physical
examination, an order requiring it would be violative of various con-
stitutional immunities. 2 No power to make such an order exists at
common law.' 27 Under the above federal rules, the interesting question
is presented (or seems to be presented) whether a plaintiff suing in a
federal court where the local law does not authorize an order to undergo
28
a physical examination, can be coerced to submit under the federal rules.
The right of privacy to be immune from physical contacts is clearly
and unmistakably a substantive right. 2 Even where this right may be
overridden by a procedural rule, it still remains a substantive right.3 0
Conclusions
1. The pairs of terms, Substantive Law and Adjective Law, and
Substance and Procedure, are not equivalent. The first pair of terms is
useful in a classification of the law. The second pair of terms is limited
to a determination of the rights of the parties, in litigation."
121. 41 U. S. 1 (1842).
122. 304 U. S. 64 (1938).
123. 302 U. S.783 (1937).
124. 28 U. S. C. A. § 723 (b), 48 STAT. 1064.
125. FED. RULES CIV. PROC. 35 (a), 28 U. S. C. A. following § 723 (c).
126. U. S. CONST. Articles IV, V, XIII. These contentions were relied on by the
plaintiff-appellant in Countee v. United States, 112 F. (2d) 447 (C. C. A. 7th, 1940).
127. Union Pacific R. R. Co. v. Botsford, 141 U. S. 250 (1891); Camden & Suburban
R. R. Co. v. Stetson, 177 U. S. 172 (1900).
128. In Sibbach v. Wilson Co., 108 F. (2d) 415 (C. C. A. 7th, 1939), cert. granted, 309
U. S. 650 (1940), the court gave an affirmative answer. See also Countee v. United States,
112 F. (2d) 447 (C. C. A. 7th, 1940).
129. In Sibbach v. Wilson Co., supra note 128, the court intimated that the right is
procedural because of the rule. This can not be. The substantive right may be denied
its usual compass in procedure but the right remains the same. Analytically, this is another
instance of conflict of rights as illustrated in the law of encumbrances of land and elsewhere.
130. Whether FED. RULES CIV. PROc. 35 (a) can be supported in the case put is not
within the scope of our inquiry, but it may be suggested that if the Federal Rule is allowed
to prevail over the local rule, the object of Erie R. R. Co. v. Tompkins, 304 U. S. 64 (1938),
is thwarted. The litigant has a different position in the Federal court than in the local court
with respect to his substantive rights.
 FORDHAM LAW REVIEW [Vol. 10
2. The terms used are not etymologically satisfactory in either pair of
terms. The suggestion is offered that for substance and procedure there
be employed the terms telic (i.e., the "what" or object) and instrumental
(the means or method).
3. The term "instrumental" is not limited to rights (jural relations)
but includes jural facts, jural events, and jural conditions arising in
litigation.
4. The question of the distinction of what is "telic" and what is "instru-
mental" does not essentially arise in the law of a single jurisdiction, in
constitutional law, or under the federal system. It arises only where two
distinct and constitutionally unrelated systems of law are involved and
where a reference is made by one to the law of the other in litigation:
5. The modern theory of unique territorial origin of rights was a
simplification of the earlier personal theory of rights. It is suggested that
both theories which are alike in substance may be replaced by a theory
of territorial recognition of rights. Such a theory would greatly simplify
the difficult field of so-called conflict of laws and incidentally would
remove the problem under discussion as a practical issue.
6. There is a clear logical distinction between "substance" and "pro-
cedure." There is no "twilight" zone which involves the distinction or
affects its conceptual clarity. There are however applications which raise
questions of policy. The latter problems have a different logical nature.
The logical nature of the distinction is not dependent on application.
Mental apprehension of this category no doubt was furthered by practical
experience in the administration of justice, and historically it may have
emerged as a generalization of practical experience, but in the background
of human experience and cerebration, like other valid logical categories,
it remains a subsistent wholly independent of experience or application.
7. English and American courts have, in the main, applied the dis-
tinction with remarkable logical consistency.