Paradox of Self-Amendment by Peter Suber The same conclusion may be seen from another perspective. Just as immutable rules are immutable only contingently, so mutable rules are mutable only contingently. Any rule may be immutable if it is contingently never repealed or if a prohibition of its repeal is contingently respected forever. This is the mirror image of the principle that any rule may be mutable if a prohibition of its repeal is contingently violated or repealed. Direct acceptance, in short, implies that all rules have contingent mutability and immutability (they are the same thing), just as it implies that all rules of change have contingent omnipotence. If every rule has contingent mutability or immutability, then repeals are effective only as long as they are accepted as valid. After a certain point, however, a repealed law is invalid by default, not only by acceptance, as its repeal and even its former existence pass out of the minds of all. But if an anciently repealed law was a rule of change, then its sudden, present self-application, declared by a presently existing body, may contingently be accepted as valid. For these purposes it does not matter whether the old rule of change was self-repealed or superseded by revolution. It is dead only contingently, for its resurrection —indeed, its self-resurrection— is always contingently possible. Laws do not apply to parties, to other laws, or to themselves without the agency of living human beings. Hence, if living human beings declared the resurrection of Roman law, and if it were accepted in the appropriately complex sense, then we could easily interpret the phenomenon as a bizarre but coherent act of present law-making authorized by present sources of authority. If the present "agents" of the change declared its authority to lie in the rules or system being resurrected, we could interpret their statement deferentially, but even then contemporaneous acceptance would have authorized ancient rules for present application. In this sense we could always avoid the interpretation of literal self-resurrection, unmediated even by present acceptance. But even the weaker sense of self-resurrection, acknowledging the authority of present acceptance, may be interpreted as present law-making. The contingent immutability of legal rules, then, does not require the ascription of anything as metaphysical or mysterious as continuing, dormant validity to repealed or superseded rules of law. This raises the question whether revolution differs from ordinary repeal. It seems that neither revolution nor repeal can categorically invalidate any valid rule, but must settle for contingent invalidation compatible with contingent immutability. Moreover, if the contingent omnipotence of rules of change enables them to transmute and repeal even "immutable" rules, it seems they have acquired a power formerly ascribed only to revolution. An act of transmutation, or of violation that is subsequently accepted, seems to do in small what revolution does in large: disregard the rules and trust to an alegal source of authority to cure the breach of continuity. Indeed, that is how I prefer to see the relation. Revolution and ordinary repeal and transmutation (if transmutation is ever ordinary) differ only in degree, not in kind. According to the direct acceptance theory, ordinary repeals can be valid even if they were not authorized by antecedent law, so long as they were subsequently accepted. Hence, revolution does not always differ from ordinary repeal in breaching antecedent law, since ordinary repeal may (but need not of course) breach antecedent law. But revolution and repeal will usually differ in the sort of appeal made by proponents for the validity of their act, in the time it takes acceptance to catch up with what they have done, and in the social and psychological causes of the catching-up of acceptance or of the shift in acceptance toward the new rules or regime. Proponents of a change of law that exceeds the current authority to change law will often appeal to "implied" rules or conditions in that authority, and to custom, policies, practices, and precedents that tend to show antecedent legal authority for the change, as opposed to merely normative moral and political support. Revolutionaries typically try the same sort of appeal, but succeed less often and rest on it less exclusively. The difference between a legal and political justification of change is itself a mere matter of degree. The revolutionary more often stakes her case on the policy end of the scale, and the proponent of amendment or repeal on the legal end. Of course major exceptions of both types may be found. More often than ordinary amendment or repeal, revolution is justified by appeal to the new norms that thereby come into effect (especially if "democracy" is one of them). In the right cases both types of change may be self-justifying in this sense, and with equal validity, but revolutionary change is more often deprived of other legal-seeming justifications and therefore resorts to it more often. Ordinary legal change that for some technical reason exceeds its authority rarely causes a breach of social acceptance (though notable exceptions exist). No catching up is necessary. A wink and a smooth judicial opinion patch things up perfectly. Revolution typically causes a breach not only of antecedent law, but also of acceptance. There is a time when the people and officials are uncertain who is in control, when no control is yet "effective" in Kelsen's sense of receiving general obedience, or when control is unstable because many citizens would disobey if they believed disobedience could be safe or because the dethroned regime is poised to counter-attack. Finally, acceptance of ultra vires amendment or repeal ratifies what has been done usually because the officials of the system have engineered the change as if it were authorized, either through good faith belief in its legality or in the habituated cynicism of bureaucracies that operate on an "underground" system of rules based mostly on prudence and pragmatism. Acceptance of revolutionary change may be bought by terror, intimidation, appeals to nationalist pride or common alegal aspirations. Acceptance of ordinary amendment and repeal is an amalgam of acquiescence based on ignorance and loyalty based on a belief that nothing is wrong or that any violation is small and justifiable. Acceptance of revolution is an amalgam of acquiescence based on fear and prudence and loyalty based on a belief in the futility of opposition or the superior political and moral content of the new regime. These crude simplifications are intended to show that ultra vires change of law that is subsequently accepted may be called either lawful repeal (amendment) or revolution. They differ in degree along several spectra, but in kind along none. According to the normative practice doctrine, the congeries of practices that comprises acceptance thereby determines a rule of recognition that distinguishes valid legal rules from everything else. But this is of no help in sharpening the distinction between revolution and ultra vires amendment or repeal. First, any such rule of recognition must 162