Paradox of Self-Amendment by Peter Suber This view has the merit of allowing continuing omnipotence without any immutable rule to guarantee its continuity. Until now it seemed that the paradox of self-amendment put us in a harsh dilemma in which we had to choose between paradox and immutability. The direct acceptance theory eliminates immutability and softens paradox to a literally acceptable form. The effect is not only theoretically elegant; by eliminating the need for immutable rules, the direct acceptance theory eliminates an ancient ground for bad faith in recognizing our responsibility for law. No law inherited from our ancestors or "arising from the nature of things" is immutable; if unjust laws persist, we are responsible for them. The omnipotence of the AC may be abridged by self-imposed limitations, and these limitations may contingently last forever. But because they are always revocable, the AC has a kind of continuing omnipotence.[Note 17] Even acceptance is not guaranteed continuity by a categorically immutable rule, for it may contingently fail to overcome its self-imposed limitations or its transfer of powers to another source of authority. However, if its failure to shed its limitations is only contingent, then it is permanently possible that it may succeed at another time. If contingent omnipotence implies a kind of continuing omnipotence, it equally implies a kind of self-embracing omnipotence. A contingently omnipotent AC may limit itself in any way, including ways that appear irrevocable at the time and ways that are contingently unrevoked forever. It may also strip away any limitations, including those that appeared irrevocable when enacted. This view, then, escapes through the horns of a second dilemma posed by categorical self-embracing and categorical continuing omnipotence. We seem bound to choose between a power that can make immutable rules (self-embracing omnipotence) and one that is defined by immutable rules (continuing omnipotence), or —this is a tongue twister— between a power that is unlimited but limitable immutably and a power that is immutably limited but otherwise illimitable. If one denies omnipotence altogether, then one thereby admits that immutable rules exist to limit power. Contingent omnipotence cannot make categorically immutable rules, and is not defined by categorically immutable rules. Therefore, contingent, continuing omnipotence is also contingent, self-embracing omnipotence. Under this view, there need not be any categorically immutable rules. All the elements of contingently omnipotent rules of change, including their contingent, continuing omnipotence, are subject to self-amendment, and therefore are contingently mutable. On this view the advantage that no rule is categorically immutable is bought at the price of making every rule of change contingently omnipotent. However, this can be shown to fit the facts of actual practice. I argue in Section 21.C below that the elimination of categorically immutable rules does not require one categorically immutable rule to bar others. Although acceptance frees us from the paradox of self-amendment and the need for categorically immutable rules, it has something of a paradox of its own, at least implicit in Hart's version of the theory. If acceptance functions to authorize law because the rule of recognition must say that it does, and if the rules authorized by acceptance, particularly the rule of recognition, are discerned from the practice of officials, or if official practice is considered to create or recognize rules, then acceptance authorizes law only because a rule of law says it should. The view that official practice creates or recognizes rules I have called the normative practice doctrine. Hart seems to assert it, but it is not necessary to an acceptance theory of legal validity. Nor must an acceptance theory hold that any rule of law points to acceptance as its authority. The normative practice doctrine implies that acceptance authorizes a rule that authorizes acceptance to authorize law. Acceptance is not only self- justifying (like the wind and the water), but justified in a circle that passes through a network of rules before returning to acceptance. Even though I reject the premises that generate this difficulty, I find nothing objectionable in the self-justification of acceptance, and even prefer it to the alternatives of an unjustified source of authority and an infinite regress of sources. One might object that if acceptance can authorize itself, then tyranny or gangster rule can do the same; but this objection is misconceived. A would-be tyrant may declare, in a manner consistent with tyranny, that tyranny is justified, and no harm comes from concluding that by its own standard tyranny is validly self-justified. But it is not thereby made valid law, except to a proponent of tyranny who accepts its standard. A self-proclaimed and self-justified tyrant would not become a valid lawmaker under the acceptance theory unless actually accepted as such in the appropriately complex sense. But isn't this to beg the question by letting the acceptance theory judge the success of the tyrant's circular logic? Surely if we let the tyrant judge the success of the acceptance theory's circular logic, the conclusion would be equally negative and more emphatic. The reply is that this is not mere favoritism or question-begging. The acceptance theory purports to be an empirical theory that explains the actual source of legal authority. The theory of self-proclaimed tyranny is not an empirical theory, but a program; or if it is an empirical theory, it is easily dismissed as unobservant. The self-authorization of acceptance may be logically similar to other types of self-justifying authorities, but this similarity alone does not enable the other types to become capable, by mere self-proclamation, of seizing the reins of any legal system, except to an extreme formalist for whom legal and logical criteria of validity are congruent. For it is just the history beyond logic that differentiates acceptance from tyranny. Another virtue of the direct acceptance theory is its consonance with democratic theory. The people cannot categorically limit or repeal their right to make law. This limitation is not paternalistic, and not even self-paternalistic, but an expression of the inalienability of their sovereignty. Actually, the people's sovereignty is contingently alienable, but any alienation of it is contingently revocable as well. This sovereignty, of course, takes the greatly weakened form of acceptance alone. The equal sovereignty of future generations, and their equal right to make and change their laws is contingently inviolate: if we violate the right of future generations to make and change law, then they may restore this right —revoke our limitation on their power— at will. No generation can bind its successors with categorically immutable rules. The paradox of omnipotence purports to show that no entity can be omnipotent in an unqualified sense. In this way it is like the Barber paradox. For many philosophers the paradox of omnipotence shows that there can be no omnipotence as defined in the usual unqualified ways. In one 155