This short book chapter reviews the current state of debate concerning form and substance in modern private law, making three observations.
The first is that there are least thirteen different ways in which the distinction between form and substance has been drawn by recent commentators in the debate. This means that ‘the’ distinction between form and substance is no single distinction, but a variable set of distinctions. For this reason, it is possible for lawyers or philosophers to be committed to both ‘formalism’ (of a sort) and ‘substantivism’ (of a sort) at one and the same time.
The second is that a ‘new formalism’ has been on the rise in private law theory and practice in recent times. This is in part, I suggest, a grasp for tools of control at a time when private law is increasingly instilled with complexity and a rising sense of crisis. Some of the sources of this sense of crisis are identified.
The third observation, connected to the second, is that there has been a dramatic resurrection of the work of Hohfeld across the board in legal commentary, as well as in some courts in recent years. The piece charts the rise through court citation rates in a number of jurisdictions. Hohfeld’s ‘formal’ technique is commended as a helpful device leading to clearer normative choices that can be used by anyone, whatever their political persuasion or legal ends. He is, in this sense, useful to both ‘radical realists’ and ‘conservative formalists’ alike.
Barker, Kit, Form and Substance: Three Observations on the State of Debate (November 11, 2018) in Form and Substance in the Law of Obligations (Hart 2019) (eds A Robertson, J Goudkamp) 433-443.