Paradox of Self-Amendment by Peter Suber sense I have given the paradox its victory, for contingent omnipotence is certainly very far from unqualified omnipotence. But on the other hand, the contradictions that are supposed to preclude the existence of unqualified omnipotence are either eliminated or made acceptable by my solution to the paradox. Self-amendment can be lawful despite acknowledged self-contradiction. Self-limitation can be permanent, contingently, despite the persistence of omnipotence. These consequences are made possible by special properties of law not available to logicians seeking a purely logical solution. Not surprisingly, there is a theological parallel to this solution available to any theologian willing to assume that an omnipotent deity might perform contradictions. The most distinguished example of such a theologian is Descartes, who wrote to Mersenne in 1634 that[Note 18] God was as free to make it false that all the radii of a circle are equal as to refrain from creating the world. and to Mesland in 1644 that As for the difficulty in conceiving how it was a matter of freedom and indifference to God to make it true that the three angles of a triangle should equal two right angles, or generally that contradictions should not be able to be together, one can easily remove it by considering that the power of God can have no limit....God cannot have been determined to make it true that contradictions cannot be together, and consequently He could have done the contrary. and to Mersenne in 1630 that You will be told that if God established these truths He would be able to change them, as a king does his laws; to which it is necessary to reply that this is correct. Lawyers and theologians who deny that the principle of non-contradiction rules in their realm may accept the paradox with equanimity, as a dialectical logician might and a formal logician never could. I will let theologians speak for themselves from this point, and say only that lawyers who take this path are not simply choosing to play a different game from formal logic; they are arguing that formal logic has limited applicability in their domain, which is a domain of actuality. Formal logic will never accept these arguments as "repeals", but only as "violations", just as the formalist view of self-entrenchment clauses is that all attempted repeals are violations. But self-entrenchment clauses actually fall, and formal logic is the logic of regret, not prevention, or of powerless prescription, not true description, or of abstractly constructed fiction, not reality. In summary, the direct acceptance theory implies that rules of law have contingent immutability and that amendment clauses have contingent omnipotence. This frees us from two difficult dilemmas, one that would have us choose between paradox and immutability, and another that would have us choose between continuing and self-embracing omnipotence. It also explains self-amendment without ironing it out into a fictitiously linear operation. By explaining genuinely reflexive self-amendment, it explains how law can be lawful without an infinite genealogy, and hence how legality can exist at all. Finally, it reminds us that we can erect no immutable barriers to evil law, and must recognize no immutable obstacles to good law. Law is firm enough to save us from ourselves, and to thwart us, for only a very short time; the only final check to our worst tendencies and protection of our best achievements is our will. B. Acceptance and consistency If the inconsistencies of self-amendment are acceptable, then are all inconsistencies acceptable? Whether the answer is yes or no, we must still decide how legal systems distinguish between "good" and "bad" inconsistencies. For if all inconsistencies are acceptable, still some are not accepted; and if not all are acceptable, then even more clearly a line has been drawn that excludes some inconsistencies. No legal system permits or accepts all inconsistencies or contradictions. Therefore, my solution to the paradox of self-amendment would not be complete if I did not make a preliminary attempt to say when the ideal of consistency may be overridden by other values and when it requires overriding all others. For in one sense my solution is a logical cheat. Paradoxes disturb primarily for making contradiction seem unavoidable. Paradoxes put us in peculiar positions from which all paths out, and standing pat, appear equally contradictory. Yet one cannot easily imagine how to prevent arrival at such positions without barring too many useful paths. If one removes the sting and urgency of paradox by declaring one's willingness to live with contradiction, then one has given up the task imposed by the paradox, not accomplished it. Such a strategy is not without dangers in any case, for it usually underestimates the difficulties of accepting even some contradiction. If one has not become an utter irrationalist, then by any test the burden of proof has shifted to one to justify the selective abandonment of the principle of non-contradiction. I have adopted such a strategy, in effect, for law, and accept the burden of proof. Law can permit self-amendment without attempting to dissolve the paradox latent in it, without waiting for logicians to solve it or declare it illusory, and without fictitiously assuming it away. Law may admit the self-contradictory character of self-amendment and still permit it, while prohibiting much else in the name of consistency. My answer to this legal ambivalence about formal consistency is twofold: (1) all inconsistencies are in principle (contingently) acceptable, but comparatively few are actually accepted, and (2) just which inconsistencies are actually accepted is a matter of contingent history. Accepting inconsistencies of types that constitute outrageous injustice, hypocrisy, or theoretical confusion are not ipso facto legally impossible, but ipso facto legally improbable. But can we say which inconsistencies are more likely, and which are less likely, to meet with actual acceptance? Even a preliminary stab at an answer must acknowledge the empirical character of the question. I do not claim the historical competency to provide a detailed account of the inconsistencies most and least likely to be accepted, but I can provide a plausible rough sketch. I offer just a 156