In jurisprudence, the term material law (also factual law, substantive law ) refers to the entirety of legal norms that regulate the content, creation, change, transfer and the expiry of rights . The counterpart to substantive law is formal law .
The links between material and formal law are so close that formal law is inconceivable without material law, and vice versa. Substantive law usually requires specification and enforcement, which are regulated by formal law. Material and formal law are complementary and both the legal effectiveness to meet. Substantive law determines what legal subjects are allowed to do and what not, it regulates “being right”. Formal law, on the other hand, regulates the bringing about of legal success , the “getting right”.
In 1880 Reinhold Johow decided to separate the two areas of law into formal and material law. While he saw the ZPO as the most important part of formal law , substantive law should "take shape in the civil code".
Substantive and formal legal laws
Essential laws with material content are in particular the BGB , HGB or StGB . They regulate how rights with a certain content are created, transferred or changed and how they expire. However, BGB, HGB and StGB do not regulate how a legal entity can enforce these rights . Rather, this happens through formal law, which is codified, for example, in civil procedure law ( ZPO ), criminal procedure law ( StPO ) or court organization and court procedure law.
An illustrative example is the land register law , whose material property law in the BGB states how a right to a property can be acquired, transferred or expired. According to substantive law, for example, a property purchase contract according to Paragraph 1 BGB comes about through a real agreement between buyer and seller on the purchase (= relinquishment according to Paragraph 1 BGB) and entry in the land register . The form of notarial certification prescribed in (1) BGB must be observed. The BGB does not say how this implementation should actually take place through registration.
The formal property law required for this is therefore codified in the land register regulations (GBO) and clarifies that these rights must be enforced through application and approval . Application and approval are required for both entry and deletion in the land register. When purchasing real estate, the application according to (1) GBO can be submitted by anyone whose rights are affected by the entry or in whose favor the entry is to be made (i.e. by the buyer and / or seller). The authorization is additionally required according to GBO from the person whose rights are affected by the entry (ie by the seller; "formal consensus principle"). The land registry receives the land purchase contract and the application (mostly contained therein) together with the permit and can enter the transfer of ownership in the land register on the basis of these deeds. The previous right of ownership of the seller expires (by underlining the entry that is no longer valid in accordance with GBV ) and the buyer is registered as the new owner. With this - constitutive - entry, the buyer is now the new owner of the property.
Formal law is also often referred to as procedural law when it comes to enforcing the rights and obligations set out in substantive law between the various parties with the help of the courts. In the so-called knowledge process , the Code of Civil Procedure governs the recording of all decisions of significant facts by the competent court for the determination of the judgment , the then state coercion in the so-called enforcement procedure (ZPO) or criminal (CCP) can be enforced.
As in German law, the terms were also formed in France ( French droit formula and French droit matériel ) and Italy ( Italian diritto formale and Italian diritto materiale ). In contrast, in other countries the more serving function of formal law is emphasized, for example in Spain ( Spanish derecho adjectivo in relation to Spanish derecho materia or Spanish derecho sustancial / sustantivo ) and in English-speaking countries ( English adjective law in relation to English substantive law ) .
- Otto Tempel, Christiane Graßnack, Frank Kosziol , Bernhard Seyderhelm: Material Law in Civil Proceedings Munich, 6th edition 2014 ISBN 978-3-406-65410-7
- Josef Aulehner: Grundrechte und Gesetzgebung , 2011, p. 17.
- Rainer Pitschas: Administrative Responsibility and Administrative Procedure , 1990, p. 292 ff.
- Herbert Lionel Adolphus Hart : The concept of law , 1973, p. 135.
- Reinhold Johow: Draft of the Civil Code for the German Empire: Property Law , 1880, p. 1953.
- Justus Meyer : CommercialLaw: An Introduction , 2017, p. 7.