Letters from Berkeley: Thoughts on form and substance


One of the things I remember most clearly from my days back at Harvard Law School is this thing Alan Dershowitz said in a lecture last year: “Line-drawing is the essence of civilization.” The quote made enough of an impression on me that I jotted it down on a corner of the Dershowitz poster I’d snatched from a wall out of some lurid fascination I can’t explain.

I thought of what he said again after taking a watercolor workshop a few months ago from an Anthroposophist painter. This painter, who specializes in a technique that uses wash upon wash to create effects of light and movement, would walk by our paintings and urge us to soften the edges made by our brushstrokes to create a wholeness of image instead of simply painting forms against a backdrop.

“Forms are stagnation,” he said. “That’s why there’s so much cancer in modern civilization — the emphasis on creating forms.” What he was talking about was how the Western ethic emphasizes the individual as the primary unit of identity, instead of humanity as a whole with individuals as complementary cells within that unit. Body parts as separate, isolated “forms” fighting each other doesn’t make for fantastic health.

I’ve been thinking about form and substance as they come up in my tax classes, especially as the time to file returns looms. One of the reasons why I like reading tax cases is that even though the law is really form-oriented, what with that huge code and all, the IRS tries its damnedest to elevate substance over that form. Tax is a great example of a dynamic created by the very concept of law: It pushes people to find ways to toe the lines, to squeeze through the cracks and loopholes and force the system to define the lines making up forms even more explicitly to represent substance. It creates conflict through a division of “entitlements” and “bundles,” and then resolves them with as definite a line as possible.

My question has always been, why do we need to keep defining this form? Why can’t we just be true to substance? Why draw lines and fight over exactly where the border is going to lie? Would we really commit crimes if they weren’t illegal? We’re all adults here — can’t we all just get along?

I guess the answer to that is pretty obvious. So, some form is necessary in order to have substance at all. But how much? Looking at a less extreme example, and perhaps more relevant to this column — let’s take Boalt vs. HLS. I remember last year, the morning of September 11, when my tax professor announced what had happened. His body stiff with grief, the atmosphere of the classroom surreal, he went on and just taught the class. The form controlling and creating substance, the programming not to diverge from responsibilities and obligations was intense enough that we continued this particular game even though the world around us had changed in an instant.

Boalt is much more relaxed than Harvard in terms of pressure, so education is more about the substance that creates the form. You can get as much or as little education as you want at this school, it seems. Much more of the pressure is internal. There’s little Socratic method, not much attendance required to get the job done, and classmates intimate enough to share notes freely. This way, I learn what I want and for myself, but then again it’s easy to get lazy. If I wanted to make a really bad pun, I’d call this “substance abuse” — after which I sometimes wish there were a little more “form” to give me a kick in the pants so I could get my “substance” done.

Without form, then, there would be chaos. So it seems that the trick goes back down to that old and trite 1L advice, that “You have to be in the game, but not of it.” In that space, there’s awareness of the forms and staying within their borders, but allegiance stays true to substance. As a 3L, it seems it gets harder to be in the game at all, let alone of it, but I’m not worried about the lack of arenas in which to play with this dichotomy. Line-drawing, after all, is the essence of civilization.

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