Paradox of Self-Amendment by Peter Suber K. Contract reflexivities Contract law contains many types of reflexivity, several of which have already been mentioned under other rubrics. K.1. Reflexive v. irreflexive theories of contract. In the text (Section 7.A) I call the view that contracts bind ex proprio vigore or by their own strength, the "reflexive theory" of contracts. The alternative is an irreflexive view that contracts bind only if a rule of public law external to the contract states that contracts bind. Only the reflexive view can be used in social contract theories of government and their variations. The irreflexive view is supported for ordinary contracts, but not decisively, by the fact most nations do have rules of public law describing when contracts bind. K.2. Overweening contract terms. On the irreflexive view of contract, contract terms may create a reflexive hierarchy by purporting to jump out of their low level of subordination and control action at higher levels. If contracts are private agreements regulated by public law, then the private agreement cannot, without paradox, pretend to overrule, circumvent, or supersede the public law that regulates it. Insofar as contract terms succeed at this overweening, they create reflexivities in the hierarchy of legal types. The relation of treaties to the environing international law is slightly different from that of contracts to the public that regulates them. Treaties create public law between the parties and are frequently taken as evidence of the international law that regulates them. Sample contract terms raising this problem: "This contract will bind the two companies even if the signing representatives had not the authority to bind their respective companies." "This contract is integrated."[Note 28] "The signatories of this contract are competent to bind themselves and so bind themselves." "If this contract is rescinded, the other party may demand arbitration." "No conditions precedent apply to this contract." "This contract will be deemed accepted by the offeree through any language to the effect that the offer is refused." Can a treaty require nations to become signatories? Probably not. But can a treaty require its signatories to ratify the treaty in accordance with their domestic procedures for treaty ratification? Article III of the Kellogg-Briand Pact of 1928 requires just that. Does a disobedient nation violate the treaty or, precisely because it hadn't yet ratified, escape its strictures? A logical analogue of this problem occurs in games with rules that feign to regulate non-playing and meta-playing behavior, e.g. that impose a game penalty for refusing an invitation to play or that refuse to recognize forfeits. Many contracts and treaties contain provisions defining what shall constitute a breach, repudiation, and rescission. May one breach or repudiate these terms even in principle? If one repudiates these terms (in a way included or not included in the repudiation definition), can one claim that one may then breach the breach provision without penalty? Can the contract's repudiation provision always outflank attempts to repudiate it? K.3. A Classical Problem. A popular medieval puzzle can be analyzed as a contract. Socrates stands in the market and publically offers to pay one drachma to the first person to approach him and tell him a true statement. Plato approaches before anyone else and says, "You will not give me the drachma." Result?[Note 29] An interesting variation occurs in Don Quixote.[Note 30] Sancho Panza became governor of Barataria and had to judge its hardest cases. A Baratarian bridge had a gallows at one end; those crossing it had to state their business and liars were hanged immediately. A mischievous traveler once said that his sole business was to be hanged. Sancho Panza decided the case by use of legal devices that entitled him to ignore all the logical difficulties. He appeals to a presumption in favor of mercy when the judge is confused. Note that while Sancho tried to avoid the reflexivity of the problem, his solution is itself reflexive; he draws a conclusion settling the dispute from the undecidability of the dispute. K.4. Circular Contracts. Some tripartite contracts take this form: A promises to do something for B, B for C, and C for A. This circle of duties is the first reflexivity, though it is not logically different from the two-step circle of reciprocity in an ordinary bilateral contract. A stalemate breach may occur: each is willing to perform but none wants to go first. Stripped to its logical bones, mutual promises of "I will do x if you will" create a contract, but the circle of conditions makes it undetermined and perhaps undeterminable whether the parties are actually bound to do x. Finally, the closing of the circle is apparently not a condition of the duty to perform: if A breaches with regard to B, then B must still perform for C, and C for A. K.5. A Vicious Circle. Scholars have frequently noted the circularity of the 19th century rule that a promise is not binding unless given in exchange for a binding promise. The decline of the doctrine is a rare example of legal change inspired by the desire to avoid paradox. If the doctrine is taken seriously, then a vicious circle would prevent the creation of any contracts. Similarly, if a person must give some valuable "consideration" to make a contract, then what consideration is given in a contract to do what one is already obligated to do? One theory was that to give the other party the contract right to compel one is itself consideration. But if so, then the contract creates the consideration and the consideration creates the contract.[Note 31] L. "More of the same" In contemporary English, double negation is equivalent to affirmation, but in Chaucer's time it expressed emphatic negation. Is capital punishment a cancellation of the initial wrong or a doubling of it? When a wrong is repeated, especially in the reflexive manner of victimizing the offender, is the original wrong negated or doubled? Is "an eye for an eye" the model of simple justice or simple barbarism? For Kelsen, acts of violence are 140