Paradox of Self-Amendment by Peter Suber E. Self-application No work of this kind is complete without inquiry into its self-referential consistency. If its conclusion is true, must it be false and vice versa? Does its existence subvert its claim to truth? The theory of direct acceptance is an empirical theory of law, falsifiable by empirical inquiry, but not falsifiable by any change of law. Changes of law may substitute another source of legal validity for acceptance, but only with contingent revocability — according to the direct acceptance theory. Acceptance cannot categorically dethrone itself or abdicate, so falsification should not be looked for from that direction. This should not be taken as an a priori part of the theory. For if direct acceptance is actually the alegal source of legal authority, then by its nature it will remain such with contingent immutability. An empirical theory may describe that characteristic without losing its empirical character. The Kadishes speculate that informing juries of their right to disregard judge's instructions on the law will "reduce the impact of judges' instructions...and invite jury nullification on a greater scale."[Note 55] One might argue that my very exposition may tend to reduce respect for positive law and invite "acceptable overruling" to a greater extent. Possibly —no one knows. I take the possibility seriously because some have blamed the American legal realists for the rise of fascism. The posited effect, however, seems just as likely whether my thesis is true or merely influential (falsely believed true). Hence, it is not my thesis that could be self-confirming but, if anything, its exposition. Moreover, if the theory is false, then becoming influential may make it true, as violations, departures, and transmutations are more and more accepted as valid. The authority would be acceptance, but the inspiration could be this (originally false) theory. One might find an analogy in the fact that Kelsen's theories were not cited in English courts until they were needed by former colonies to justify revolution. Naturally I do not rely upon any anticipated effect of my exposition to prove its content. Nor can I work up a genuine hope (or fear) that this exposition will justify anything that could not otherwise be justified from a more authoritative source (including those I cite on behalf of my thesis). I may have shown a way in which "immutable" rules may be approached by reformers. But if I have, this approach has been noticed before, for I learned it from historical interpretation. If I was wrong that these techniques are already valid law, then they may become valid law by a sort of self-fulfilling prophecy. There is a long tradition, especially in international law, of using the writing of jurists and scholars as an unofficial source of law. I cannot claim even that much authority. My claims as to the validity of transmutation or the contingent repealability of self-entrenchment clauses were supported by cases available to all plaintiffs, even if no cases exist directly on point for many hypothetical extensions of the theory. If I say that the repeal of self-entrenchment clauses is all for the good anyway, I begin a line of defense that I would rather not take to the end. The only effect of my exposition that I anticipate is a heightened sense of our responsibility for law. If we believe that even part of the origin of law lies in the commands of a deity, in innate and unalterable patterns of behavior, in immutable morality, or in formal logic, then we are masking our responsibility. The truth here may be terrifying. If law is too unwieldy for lay citizens to understand, too expensive for most to use to protect their rights, too slow to adapt to new threats to liberty, then the fault is ours. If the infinitude of untried concepts contains a gem, the job is ours to find it. No rule made by our ancestors is beyond our reach. Admitting that puts the burden of justification on our will. We did not choose to have every rule of law that we do have, and it distorts things to say we chose when we merely accepted. But we have accepted and tolerated every rule of law that we now have. Through our acceptance we exercise our sovereign power of authorizing law to be law. We are responsible not only for our choices, but also for our weaker, more hidden, thoughtless acts of acceptance. Our freedom to change the law, which is contingently omnipotent, need not lead us to a profusion of self-limiting rules, all contingently immutable, to quell our terror, nor to the mass repeal of the refined product of centuries. However, it should lead to a greater suspicion of formalist and naturalistic excuses for immutability, and a greater vigilance to arrest our lapses into bad faith. As citizens, advocates, legislators, and judges we are bound by existing rules, but not unremittingly or categorically. This essay should help us see that "being bound" by law is a complex idea, an organism of mutually dependent social practices and expectations with no immutable logical bones. We cannot simply throw off law as a fetter, for it is self-imposed for reasons that remain sound, but that deserve constant reexamination. But the form and content of this self-imposed structure of our freedom may be anything at all, contingently; it is up to us. In the United States there is immense case law supporting the proposition that the federal government is a "limited" one —limited by popular sovereignty, federalist principles, a written constitution, the separation of powers, checks and balances, judicial review, bicameralism, periodic election of officials, and supermajority requirements for many important events including constitutional amendment. This is another way to say that the rules that limit the federal government have repeatedly been respected, even while every rule of change down to the power of the Chicago City Council to make ordinances has contingent omnipotence. The rules limiting the federal government have been respected, moreover, even while the federal government has steadily grown in size and power. We did not reach our present position by a series of revolutions, by anarchy, or by willful disobedience. The law grew by a series of small steps. These steps were accepted as they arose, perhaps because everybody thought they were authorized even when they were not, but normally because, without thinking about authority, most found them acceptable. Notes 1. Alf Ross, "On Self-Reference and a Puzzle of Constitutional Law," Mind, 78 (1969) 1-24. 2. Ordinary deontic logics —the logics of permission and obligation— do not suffice for reasons that will appear briefly below. But I am coming to suspect that a temporally indexed deontic logic, capable of describing permissions and obligations that are enacted, amended, and repealed in time, may be made to work. No one has yet applied a temporally indexed temporal logic to the paradox of self-amendment, but for an idea of what 166