Paradox of Self-Amendment by Peter Suber In short, Ross avoids infinite regress by an arbitrary halt at the first tacit level above the constitution, and he avoids self-amendment through the theory of types and an immutable rule. Ross even gives us the content of the tacit, immutable rule:[Note 10] Obey the authority instituted by [the express AC], until this authority itself points out a successor; then obey this authority, until itself points out a successor; and so on indefinitely. It follows that ACs can be amended only if they are not actually supreme, and then they can be amended only by superiors. Therefore, the supreme rule of change will always be immutable. Actual constitutional ACs are not supreme, but inferior to the tacit transcendent rule of change that he has discovered. Why should we believe that this tacit rule exists as a legal rule in every legal system? The only reason is to make amendments to ACs lawful without resort to self-application, which Ross thinks is resort to self-contradiction. Avoiding contradiction may be a good reason to make a law, but not a good reason to think such a law already exists. It is no more a good reason than, as Bentham said, "hunger is bread".[Note 11] The logician may discover gaps and inconsistencies, but only judges and legislators can cure them, and will only do so if they care to. Ross's fundamental principle is "that from the validity of a norm it is impossible to derive the validity of any norm in conflict with [it]."[Note 12] This principle is obviously taken from logic, not law. It implies that a norm or rule cannot authorize its own change into a form inconsistent with its original form, for any such substantive self-amendment would comprise the derivation of a conflicting norm from a valid norm. Ross's first principle, then, precludes the possibility of substantial self-amendment a priori. He does not justify the principle except as a principle of logic, in which guise it is unassailable. If the richness and historical contingency of the world of law does contain rules that permit the derivation of conflicting rules, then Ross has adopted a principle that prevents him from seeing that fact and that actually requires him to deny it. He is guilty of the arrogance of a priori thinking about an empirical subject. There are no errors in his reasoning, only in his choice of premises, and in his presumption that what logic forbids, law must forbid. If the existing legal rules seem to permit what logic forbids, then the philosopher or logician is within her rights to complain and to suggest what seem to her to be improvements. But if she is bent on explanation, then the makeshift of a tacit, transcendent, immutable rule, universal across all systems, authorizing exactly what must be authorized, is comical and unscientific, blind to the legal concept of legal validity. C. Solutions from the model of direct acceptance The newly changed AC need not derive its authority from the old AC or a tacit, transcendent, immutable, universal rule. It may, for example, derive its authority from the acceptance and usage of the people. An analogy may clarify this possibility. Contracts often contain the equivalents of ACs, and often contain no-revocation clauses. The parties to a contract may amend the contract's AC or revoke and replace the no-revocation clause, without paradox, because the new clause derives its authority not from the old clause but from the agreement of the parties to supersede the old and abide by the new. This is possible because the agreement of the parties is the source of the contract's authority[Note 13] and supersedes the particular written provisions. Similarly, a constitutional AC may derive its authority from a source outside the legal system such as the acceptance of the people if (under the acceptance theory) that acceptance is a genuinely higher or more encompassing authority. Hart argues that it is and must be. An AC derives its authority from the constitution of which it is a part, which leads us to the ultimate question of the authority of the constitution. Just as parties to a contract supersede the old by appeal to their own will, not to their old words, so the people of a society might supersede their old AC by appeal to their own will, not to their old words. But note what has happened here. If acceptance is an authority external to the constitution and system of positive law, and if a change of ACs is authorized by acceptance, then the new AC may contradict the old AC but it will not contradict the authority that makes it law. Even according to Ross, the contradiction is only fatal when the authority for the amendment is the old AC, and when the conclusion of the inference that is supposed to make new law is the inconsistent new AC. Ross's inference model would not recognize acceptance as a source of authority; but if we do so, and then apply the most rigorous logical standards, no logical scruple will force us to say that the contradiction in self-amendment prevents its legality. For either acceptance prevents the need for self-amendment and hence contradiction, or else it validates self-amendment, contradiction and all. The acceptance theory, then, provides two solutions to the paradox of self-amendment: 1. If an AC is changed by self-amendment, then a contradiction in the process (even if Ross is right that it is there) would not invalidate the result if the result is accepted by the people and officials, for acceptance and not formal logic is the final arbiter of legality. 2. If an AC is changed without appeal to itself as a rule of change, then no self-amendment occurs, and no contradiction; such amendment without self-application can be validated directly by acceptance. Under the former solution, the old AC is the authority for the new AC and under the second solution the new AC is directly authorized by acceptance. In both cases we may admit with Ross that the new AC formally contradicts the old AC. Under the second solution this contradiction is irrelevant, because the new AC does not contradict the authority by which it is law. But under the first solution, the new law does really contradict the authority by which it is law; but this contradiction has no power to nullify the new law because the new law is accepted and the contradiction tolerated or overlooked. 32