2011 Fall, Pg. 6. SUBSTANTIAL CONFUSION: The Use and Misuse of the Word "Substantial" in the Legal Profession.

• Author: By Michael J. Malaguti

New Hampshire Bar Journal

2011.

2011 Fall, Pg. 6.

SUBSTANTIAL CONFUSION: The Use and Misuse of the Word "Substantial" in the Legal Profession

New Hampshire State Bar JournalVolume 52, No. 3Fall 2011SUBSTANTIAL CONFUSION: The Use and Misuse of the Word "Substantial" in the Legal ProfessionBy Michael J. Malaguti(fn1)I. INTRODUCTION

Asearch on Westlawfor "substan!" turns up 2,793,047 documents.(fn2) This refects a fact most lawyers know intuitively but upon which few probably refect: the use of the word "substantial" pervades the legal lexicon.(fn3) Lawyers, judges and legislators use the word "substantial" like sailors use the word-well, you get the idea. This is problematic because there are at least three viable (and very different) defnitions of the word, and because legal writers rarely specify which of these defnitions they are using. Inevitably this carelessness infects the law with uncertainty and doubt.

At its best, the word "substantial" gives the law fexibility so that it can embrace and resolve the facts of divergent cases.(fn4) At its worst, it is "thrown around" negligently by courts and advocates eager to attach the imprimatur of fact and authority to their positions.

"Substantial" is amongthemostwidelyusedwords in the law.(fn5) During the 1930s and coinciding with the emergence of the administrative state, it began to appear in print with increasing frequency.(fn6) Part of my aim in this article is simply to underscore the word's prevalence in legal writing. This goal is animated by my belief that there exists among legal writers an ignorance regarding how heavily "substantial" is relied upon. There is the substantial factor test of causation, substantial certainty for intentional torts, substantial justice for minimum contacts, substantial performance for contracts, the substantial evidence standard of review in administrative law, the substantial compliance doctrine for wills formalities, and the substantial capacity test for criminal law. In intellectual property, there is the concept of substantial equivalents. These examples only begin to scratch the surface. Not only does "substantial" appear frequently; when it does appear, it tends to carry operative importance. No article or case of which I am aware has devoted more than a paragraph or two to examining directly this all-important word, leaving a troublesome gap in the scholarly literature.(fn7)

This article is intended to highlight this problem and to begin a discussion that I hope others will join. I argue that the word "substantial" has never had a single, stable defnition. Instead, it signifes a rancorous philosophical debate that has raged since ancient Greece. However, I also suggest that most current uses of "substantial" are simply incorrect. Finally I link the problems with "substantial" with the controversy over judicial activism, and argue that because our legal system values judicial restraint, we should feel uneasy when judges use the word.

Because I believe the present discussion can only begin after understanding the etymological and philosophical roots of the word "substantial," I begin with a brief overview of those topics and a look at current defnitions of the word. Then, I turn in Part III to a discussion of the word's prevalence and confused use in legal writing.(fn8) In Part IV, I examine two death penalty cases in which the Supreme Court considered the import of the word "substantial" in jury charges. In Part V, I respond to the contextualists' argument that all words are indeterminate, signifying little outside of a particular context. Finally in Part VI, I contend that while good legislation may make use of the word "substantial," good jurisprudence should not.

II. CLASSICAL ROOTS

Unlike the law, philosophy has given extensive treatment to the question, "what is substance?" Countless volumes have been dedicated to this endeavor To recount the history of this philosophical debate is, in large measure, to recount the history of Western philosophy itself. For present purposes, chronicling some of the highlights will be suffcient.

First, though, a word of caution. It is important to recognize that the word "substance" is likely to connote to a philosopher certain concepts that are not necessarily congruent with everyday uses of the word.(fn9) However, in this area philosophy preceded etymology(fn10)making study of the philosophical antecedents indispensible to our study of etymology.

Plato

The philosophical concept of "substance" is central to how philosophers defne and categorize reality and address how we perceive, know, and describe.(fn11) The most logical point of departure for our discussion is Plato, whose famous "allegory of the cave" hews with remarkable clarity the parameters of the debate over "substance" that has raged for millenniums in philosophical circles.(fn12) The dialogue is between Socrates and Glaucon, a young boy under Socrates's tutelage. While the prose is archaic and inaccessible, the patient reader is rewarded with Plato's insights into "matters ethical, political, metaphysical, epistemological,"(fn13) and, for our purposes, legal." [L] et me show in a fgure," Socrates begins, "how far our nature is enlightened or unenlightened:"

Behold! Human beings living in an underground den, which has a mouth open toward the light and reaching all along the den; here they have been from their childhood, and have their legs and necks chained so that they cannot move, and can only see before them, being prevented by the chains from turning round their heads. Above and behind them a fre is blazing at a distance, and between the fre and the prisoners there is a raised way; and you will see, if you look, a low wall built along the way like the screen which marionette- players have in front of them, over which they show the puppets.(fn14)

On the "raised way" above and behind the prisoners, walk men carrying things.(fn15) Because the prisoners' heads are locked to look straight ahead, they see only shadows of themselves and of the men on the raised way.(fn16) Because they have been locked since childhood in this condition, the shadows on the wall in front of them are their only reality.(fn17) They are "like ourselves," Socrates says.(fn18) He queries Glaucon further: "[I]f they were able to converse with one another would they not suppose that they were naming what was actually before them?... To them..., the truth would be literally nothing but the shadows of the images."(fn19)

Socrates then instructs Glaucon to imagine that the prisoners "are released and disabused of their error"(fn20) Further, he says,

when any of them is liberated and compelled suddenly to stand up and turn his neck round and walk and look toward the light, he will suffer sharp pains; the glare will distress him, and he will be unable to see the realities of which in his former state he had seen the shadows; and then conceive of someone saying to him, that what he saw before was an illusion, but that now, when is approaching nearer to being and his eye is turned toward more real existence, he has a clearer vision....

Once their eyes become accustomed to the light, the liberated prisoners "will be able to see the sun, and not mere refections of him(fn21) in the water, but [they] will see him in his own proper place, and not in another; and he will contemplate him as he is." A strange effect of the personifcation of "sun" is that the sun is given a mystical, divine connotation. This only amplifes Socrates's point that the sun is more essentially real than the shadows. In the parlance of philosophers' interpretations of the "allegory of the cave," the sun is a "Form." Forms are the "driving principles which give structure and purpose to everything else."(fn22) To Plato, then, the objects of our perception are not accurate transpositions of the Forms; they are adulterated copies. What has this to do with "substance?" The "[F]orms are Plato's substances, for everything derives its existence from Forms."(fn23) In this regard, Plato's Forms are characterized by "ontological basicness"; that is, they are "the foundational or fundamental entities of reality."(fn24)

The objects of our daily perception are "real" only insofar as they partake of the Forms. Notably Plato's conception of substance, unlike the vast majority of today's legal uses of the word, has nothing to do with size. Plato's focus is instead on essence. The inquiry is into the true nature and character of a given thing. Furthermore, the Platonic conception of "substance" is decidedly relational; something is substantial or is said to be substantially such-and-such to the extent that it resembles its Form.

Aristotle

Aristotle's defnies substance as "that which is neither predicable of a subject nor present in a subject."(fn25) By this, Aristotle is referring to what he calls "primary substance" - "the truest and most defnite sense of the word."(fn26) Aristotle tells us that the individual man and the individual horse are both primary substances.(fn27) Individual instances of things are not predicable of a subject because an individual instance cannot be said of a subject. Put another way, it would be impossible for me to assert "Eric" of "John."(fn28) This follows from the proposition that "John" and "Eric" are individual instances. Additionally "Eric" is not present in "John." That is, "John" is not characterized by "Eric-ness" but rather "John-ness."

But primary substances are not the only substances. "Eric" and "John" themselves fall into broader categories of things. "Eric" and "John" are both "humans."(fn29) Pause for a moment to note why "human" is not a primary substance by applying Aristotle's defnition. First, "human" is predicable of a subject.(fn30) It is possible to say that "Eric" or "John" is characterized by "human-ness."(fn31) It is also true that "human- ness" is present in "Eric" or "John." Secondary substances, then, are "the species...