The Pitfalls of Ineffective Conceptualization: The Case of the Distinction between Procedure and Substance

Abstract

This review essay explores the distinction that judges and scholars have occasionally made between legal norms that they consider to be procedural and those considered to be substantive in nature. Approaching the issue from different angles, the three books under review all struggle to define procedure and substance as concepts informing a decontextualized distinction among international norms. Overall, they fail to show how this distinction is useful, either to understand what the law is or to account for its evolution. The essay argues that the concepts of ‘procedure’ and ‘substance’ hinder the clarity and, often, the soundness of the analysis presented in these books. At times, this ineffective conceptualization is an intellectual detour that hinders the development of more useful distinctions – for instance, between ‘principal’ and ‘accessory’ obligations, to determine when the breach of an obligation implies the breach of another obligation. Through this case study focused on recent publications on the distinction between procedure and substance, this essay reflects on the capacity of ineffective concepts to hinder the analysis of international law when their relevance and usefulness is too readily taken for granted.