Chapter 4: Classifications of Law

There are many ways to classify laws. We will discuss two of them. To classify means to put types of law into distinct categories (or buckets). Envision two buckets side by side. A law may be the type that goes in the first bucket or the second. Let’s look at some classification buckets.

4.1     Substantive Law or Procedural Law 


Substantive or Procedural

The first way to classify law is substantive or procedural. That is, a law belongs in the substantive bucket (because it is a substantive law) or in the procedural bucket (because it is a procedural law). A substantive law is a law that creates and controls the rights and duties of parties. General examples include the laws regarding torts (see chapter 15), contracts (see chapter 18), and real property (see chapter 25). A specific example of a substantive law is a law prohibiting trespassing on another’s property. Why? Because such a law creates and defines trespassing and puts would-be trespassers on notice regarding the liability (if it is civil trespassing) or punishment (if it is criminal trespassing) that they face for violating the law.
A procedural law, on the other hand, is a law that creates and controls the process of enforcing the rights and duties under substantive law. General examples include the rules of evidence, jurisdiction, and pleading and practice (which are referred to as either civil procedure or criminal procedure, depending on the type of proceeding). We will discuss civil procedure (i.e., steps in a civil case) in chapter 9. A specific example of a procedural law is a statute of limitations. A statute of limitations is a statute (see chapter 5) that creates a time limit for bringing a civil case (i.e., filing a lawsuit) or a criminal case (i.e., initiating a prosecution); typically, the time limit is measured from the date of the event giving rise to the lawsuit or prosecution. This means that in personal injury cases, for instance, a lawsuit must be brought within a certain period of time after the injury occurred; otherwise, it will be time-barred. The case could be very strong substantively; but that is immaterial because a court will dismiss the case on procedural grounds.

4.2     Civil Law or Criminal Law

Civil or Criminal

A second way to classify law is civil or criminal. That is, a law belongs in the civil bucket (because it is a civil law) or in the criminal bucket (because it is a criminal law). Civil law is the law of private rights and duties. As with substantive law, general examples include the laws regarding torts (see chapter 15), contracts (see chapter 18), and real property (see chapter 25). A specific example of a civil law is a law providing that all contracts for the sale of real property must be in writing. Why is it a civil law? Because it deals with duties between private parties; and any violation of it is a wrong between the parties, not a wrong against the whole community.
Criminal law, on the other hand, is the law of public rights and duties; put another way, it is the law that creates and controls wrongs committed against the whole community. Criminal law violations are called crimes. Specific examples include laws against assault, burglary, and robbery (see chapter 14).
There are many differences between civil law and criminal law, including concerns, party bringing the case, burdens of proof, and goals. We will spend a lot of space discussing these differences, in part because it is easy to confuse aspects of the civil law and criminal law. And by gaining a firm grasp of the differences, we will be in a better position to understand fully later material in this text. After discussing the differences, we will then cover the overlap between civil law and criminal law.
Concerns. Civil law is concerned with private rights and remedies, that is, the duties that exist among and between persons, organizations, and governments (other than, of course, the duty not to commit crimes). Conversely, criminal law is concerned with public rights and remedies, that is, with wrongs committed against the public or whole community.
Party bringing the case. In a civil case, the party bringing the case (i.e., suing) is the plaintiff. The plaintiff is a party who claims to have been injured by the wrongful conduct of the defendant. The plaintiff can be a person, a business or other artificial entity, or a federal, state, or local government entity or agency. The case appears in court documents with the heading Plaintiff v. Defendant; the heading is referred to as a “caption.”
In a criminal case, the party bringing the case (i.e., prosecuting), is the government—local, state or commonwealth, or federal. In a state or commonwealth prosecution, the case is normally captioned State (or Commonwealth) v. Defendant; in a federal prosecution, the case is captioned United States v. Defendant.[1]
Burdens of proof. The burdens of proof are also different for civil law and criminal law. A burden of proof is a party’s duty to prove a claim or defense to a certain standard. In a typical civil case, the burden of proof that the plaintiff must satisfy is “preponderance of the evidence.” There are other ways of expressing this standard, including “more likely than not,” “by greater than 50% weight,” and “by the greater weight of the evidence.”[2] If the plaintiff does not satisfy its burden during trial, the fact-finder (i.e., the judge or jury, depending on the case) will decide the case in favor of the defendant.
In a criminal case, the burden of proof that the prosecution must satisfy is “beyond a reasonable doubt.” The defendant is presumed to be not guilty unless the prosecution proves the defendant’s guilt to the reasonable doubt standard. While this standard is impossible to quantify in mathematical terms (unlike in civil law), it does not require the absence of doubt in the minds of the judge or jury. But the judge or jury should find the defendant guilty only if firmly persuaded of the defendant’s guilt based on a fair and full consideration of the evidence presented; there is no reasonable doubt if this is the case.[3]
A good way to remember the burdens of proof for civil law and criminal law is by envisioning the scales of justice—

In a civil case, the plaintiff will satisfy the “preponderance of the evidence” burden by placing just enough weight—that is, evidence or proof—on an arm of the scale to tip the scale slightly in the plaintiff’s favor; that is all the weight needed to obtain a civil judgment against a defendant. In a criminal case, however, the government will need to place enough weight on the arm of the scale to make that arm almost touch bottom—that is, enough to satisfy “beyond a reasonable doubt.” Therefore, much more evidentiary weight is needed to obtain a criminal conviction against a defendant.
Goals. The goals of civil law and criminal law differ greatly. In civil law, the primary goal is to make an injured party whole, or compensate him for the damage done to him. This is accomplished by awarding either a legal remedy or equitable remedy.
The main legal remedy is compensatory damages, which is money. Most plaintiffs bring civil cases seeking money to compensate them for the injury and damage caused by a defendant. For example, in an ordinary auto accident case, an injured driver with a damaged vehicle will sue the other driver who caused the accident. Why? The reason is because the injured driver wants to be made whole. How can the injured driver be made whole? The answer is by obtaining the monies necessary to repair or replace his vehicle, pay his medical bills, and compensate him for lost wages and pain and suffering.
In some states, punitive damages are available in rare cases to punish a defendant (which is an occasional goal of civil law). But even in states that allow punitive damages, they are usually limited to certain types of cases or for conduct that involves fraud or malice, or is willful and wanton.
There are occasions, however, where the legal remedy of compensatory damages is considered inadequate under the law. In such a case, a plaintiff may instead obtain an equitable remedy. The general rule is that legal remedies are inadequate when a case involves unique or rare personal property or if it involves real property. In simple terms, personal property is every type of property other than real estate; and real property is real estate, which consists of land and things attached to or growing upon the land (e.g., buildings and plants). Because no two pieces of real estate are exactly the same, the law considers real estate unique. We will discuss real property further in chapter 25.
So if the legal remedy of monetary damages is inadequate under the law, is an equitable remedy available to a plaintiff? An equitable remedy is a non-monetary remedy based (not surprisingly) on the doctrine of equity, which is the principle of crafting a fair and just outcome when a legal remedy is unavailable, inadequate, or where the strict application of the law would produce an unconscionable result. While there are many equitable remedies, two of the more common types are injunction and specific performance. An injunction is a court order requiring a party to do, or not to do, an act. For example, after finding a corporation liable for patent infringement (see chapter 24), a judge may issue an order enjoining the corporation from further infringing of the patent. Specific performance is a court order requiring a party to perform a contractual duty. For example, a purchaser who paid money for real property may sue the seller seeking the equitable remedy of specific performance if the seller refuses to deliver the deed. The reason is because the purchaser wants the real property and deed, not a refund of monies paid.
In nearly every state today, courts of law and equity have merged. This allows plaintiffs to obtain a legal remedy or equitable remedy in the same court. One notable exception is Delaware, where the Superior Court is the general court of law (with judges) and the Court of Chancery is the general court of equity (with chancellors). One reason that numerous corporations are incorporated in Delaware is because of the Court of Chancery and its well-deserved reputation as the pre-eminent court in the world for the resolution of corporate and other fiduciary matters. The Court of Chancery guards vigilantly its limited equity jurisdiction. It will dismiss or transfer cases where a plaintiff uses “‘magic words’ to dress its complaint in the garb of equity”; in dismissing a case in 2008, the Court stated that “one cannot parade a duck around and call it a swan.”[4]
Unlike civil law, the primary goal of criminal law is to punish the wrongdoer, that is, the defendant. Depending obviously on the level and severity of the crime, this may be accomplished by the death penalty, imprisonment, probation, or fines. Other goals of criminal law include retribution (i.e., to get-even or payback), deterrence, and rehabilitation. These goals also may be accomplished by the same punishments; in addition, the court may order a convicted defendant to pay restitution (i.e., to pay the victim for the injury or damage caused by the defendant) or place the defendant under a restraining order. A restraining order is a type of injunction; in criminal law, it ordinarily is in the nature of precluding a defendant from coming within a certain distance of or attempting to contact or communicate with the victim.
Overlap between civil law and criminal law. You have likely recognized that there is overlap between civil law and criminal law. That is, sometimes a wrongful act can be a violation of civil law and criminal law. Let’s look an example.
You may remember or have heard of the O. J. Simpson cases from the 1990s (as opposed to the 2008 case arising out of the infamous Las Vegas hotel-casino room break-in incident). In October 1995, after a lengthy criminal trial, a jury acquitted O. J. Simpson on two charges of murder for causing the deaths of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. In February 1997 after a civil trial, however, a different jury found O. J. Simpson liable for wrongfully causing the deaths of Ronald Goldman and Nicole Brown Simpson. Based on its findings of wrongful death, the jury awarded $8.5 million in compensatory damages and $25 million in punitive damages to the victims’ families.
How is it possible for O. J. Simpson to be found not guilty in the criminal case, but found liable in the civil case? The reason is because the burdens of proof are different. Recall that the burden in a criminal case is “beyond a reasonable doubt,” while the burden in a civil case is only “preponderance of the evidence.” Also, there is no violation of double jeopardy under the Fifth Amendment to the Constitution, because a civil case following a criminal case is not considered a second prosecution for the same offense.

[1] Not all societies have historically recognized this distinction. For example, in medieval Scandinavia and Iceland, there was no distinction between civil and criminal actions, and all claims were brought by private citizens. See, e.g., Peter Foote, Andrew Dennis, and Richard Perkins, trans., Laws of Early Iceland (2 vols.) (Univ. of Manitoba Press 2006); Laurence Larson, trans., The Earliest Norwegian Laws: Being the Gulathing Law and the Frostathing Law (Columbia Univ. Press 1935).
[2] In some circumstances and for certain types of claims, the burden in a civil case may be “clear and convincing evidence.” This standard, while more demanding than a “preponderance of the evidence” standard, is still less burdensome than the criminal standard of “beyond a reasonable doubt.”
[3] Jackson v. Virginia, 443 U.S. 307 (1979).
[4] Hillsboro Energy, LLC v. Secure Energy, Inc., C.A. No. 3789-CC, letter op. at 5 (Del. Ch. Oct. 3, 2008), 2008 Del. Ch. LEXIS 145.