Paradox of Self-Amendment by Peter Suber Of the two solutions made possible by the direct acceptance theory I prefer the first —that there really is self-amendment and that any contradiction in it is forgivable— although there is no need to choose. I believe that the first solution comes closer to explaining how actual ACs actually change, namely, through literal self-amendment, disregarding and plowing under any self-contradiction. The alegal sources of legal authority emphasized in the second solution still exist; they are consequences of the direct acceptance theory. But they need not be invoked to bypass self-amendment when they can be invoked to explain self-amendment. While the self-limitation of deities remains mysterious, we should remember that the self-amendment of constitutional ACs is transacted and reviewed by human beings. If they don't notice the contradiction within self-amendment, or if they don't care, then they have made law anyway — as they always do, in their own image. Eternal, formal criteria of consistency have no standing to complain unless their cause is taken up by some human being. Because self-application of a rule of change is legally permissible, and because it explains self-amendment, I prefer to supplement Hart by making his secondary rules self-applicable. The alternative is that the rules of recognition, change, and adjudication will be unrecognizable, immutable, and injusticiable. He could have made his secondary rules self-applicable without jeopardizing any part of his theory of law. Indeed he would have strengthened both his theory of law in general and his response to the paradox of self-amendment in particular, which depends now on the common but inadequate objection that the old and new ACs could be kept separate in time.[Note 14] The solution I prefer allows self-amendment despite the self-contradiction of its nature. A section below (21.B) explores how acceptance can permit us to absorb, tolerate, or forgive some contradiction in law, without obliging us to tolerate all contradiction. The direct acceptance theory of legal change and validity offers, then, two satisfactory solutions to the paradox of self-amendment. Justifying the direct acceptance theory has only been a parenthetical task of this essay. Demonstrating the inadequacy of the inference model has been much closer to the center of concern. (But see Section 21.D below.) Ross's postulate of a tacit, transcendent rule is theoretically coherent, but it is designed to make strict (reflexive) self-amendment unnecessary, which is itself unnecessary, and it clearly fails to explain actual practice. Whether self-amendment is legally valid depends not on a nation's law or its AC, but on its concept of law. Permitting change of the AC is compatible with many theories of law, even the inference model, but permitting strict self-amendment of the clause is incompatible with the inference model. Permitting self-amendment in fact is itself permissible in any legal system that currently seems to bar self-amendment (although I know of none of these). One act of accepted self-amendment would overturn the inference model as a descriptive model of law for that system. The proposal and ratification of the reflexive amendment would at the time run afoul of the inference model and perhaps some explicit rules of procedure. But direct acceptance could cure these defects after the fact, contingently, if acceptance shifted in their favor. The reason that violations can be accepted as amendments is that the question of legal permissibility is empirical and turns on what we find when we look. Whether self-amendment is formally contradictory may be a matter for a priori analysis, but that is always distinct from the question of the content of law, even the question of the logical content of law. Contingent immutability and contingent omnipotence The direct acceptance theory implies that no rule is absolutely immutable. It follows from this that every AC and even acceptance itself have a sort of continuing omnipotence. If a rule purports to be immutable, for example through complete self-entrenchment, then it may be amended or repealed if the requisite acceptance is obtained. This may be called the "transmutation" of the "immutable" rule into a "mutable" rule. The future generations that were to have been bound immutably may decide (as we have decided) that they cannot be bound immutably, and repeal what was earlier believed to be an immutable rule. This is true, of course, even if the generation that enacted the "immutable" rule intended to bar all repeal, and reasonably believed that they had used legal devices that made repeal unlawful. This means that rules that purport to be immutable are really mutable, but only contingently. With the requisite acceptance, the people can repeal any law; but it is always a matter of historical contingency whether that requisite acceptance will be summoned. And some "immutable" laws may remain unchanged forever if the acceptance that would support amendment or repeal contingently never arises. So while some rules might contingently remain unchanged forever, none is totally immutable. The possibility of contingent amendment and repeal is permanent.[Note 15] For the same reason any limitation on the amending power, original or self-imposed, is contingently revocable by the AC even if the limitation purports to be immutable. If an AC is used to overcome its own limitations (to disentrench itself), its success is contingent upon future events — namely, the mustering of sufficient acceptance. These somewhat anomalous powers may be called the contingent omnipotence of the AC and the contingent immutability of rules, as opposed to the categorical omnipotence of the AC and the categorical immutability of rules. Contingent omnipotence implies contingent, continuing omnipotence. The contingent omnipotence of the AC cannot be limited irrevocably, for the subsequent repeal of the limitation is always contingently possible, not categorically impossible. Similarly, acceptance itself cannot irrevocably be deprived of its power to authorize law, under the direct acceptance theory, for any such attempt could be invalidated in the future by a shift of acceptance. If we try to prevent this contingency by law, we must use contingently mutable rules; by the nature of the case, this will fail. So while the people and officials may in a spasm of bad judgment or in submission to overpowering force turn their law-authorizing power over to a military or priestly caste, the new regime is lawful only as long as the people and officials accept it; acceptance can always revoke its delegated authority and restore its sovereignty.[Note 16] 154