Paradox of Self-Amendment by Peter Suber Section 3: The Dilemma A. Self-application v. infinite regress Any legal philosophy that would explain how laws may lawfully be changed faces a dilemma. The authority to change legal rules is provided by a special group of legal rules which we may call (after Hart) rules of change. Rules of change permit and structure the process of enactment, amendment, and repeal. Can the rules of change permit and structure the process of their own change? More pointedly, can they authorize their own change into forms inconsistent with their original forms?[Note 1] Can they make their self-change irrevocable? The dilemma is sharp. (1) If the rules of change cannot authorize their own change, then they are either immutable, or they may only be changed by a second set of such rules, which in turn must either be immutable or mutable only by a third set, and so on to an arbitrary halt or an infinite regress. (2) But if the rules of change can permit and structure the process of their own change, then they must permit their own limitation and repeal. But at first sight, at least, paradox attaches to any rule that authorizes the limitation or extinguishment of its own power. For it seems that such rules would supply the premises for a transfer of authority in which the conclusion contradicted at least one premise, or an action much like that of an omnipotent being limiting its own power to act. (The paradox of self-amendment is set out more fully in Section 5.) So it seems that we must choose among immutable rules, infinite regress, and paradox. To this dilemma, or trilemma, we might add revolution. But we are now considering only the lawful change of law. Extra-legal methods of changing the rules are always available, of course, even though they are not lawful and sometimes inefficient. For example, revolution can clearly change the rule of succession for sovereigns, but can only rarely change certain unwritten constitutional norms. In any case, the present inquiry is devoted to the ways in which a rule-governed system may change all its parts, including the rules that govern change. So for present purposes we can omit revolution as a method of legal change. Of the options remaining —immutable rules, infinite regress, and paradox— immutable rules are the least objectionable logically, although perhaps the most objectionable legally. But in any event that hypothesis that any legal rules are truly immutable faces both logical and legal problems (see Section 8). Legal history also threatens it, for it seems that all kinds of rules of change have been changed; at least this is true of constitutional amending clauses (see Appendix 2). The problem is to explain how legal change of the rules of change actually occurs, not how a hypothetical set of rules carefully crafted for the purpose could permit its own alteration.[Note 2] Alf Ross, a Danish jurist and logician, has argued that rules of change, or at least constitutional (supreme) rules of change, cannot authorize their own amendment without paradox, and therefore cannot lawfully authorize their own amendment at all.[Note 3] This essay is in effect an extended reply to Ross. I will argue that Ross's paradox is not easily solved or dissolved, but is easily accommodated in law. A powerful explanation of how law can cope with an unflinching contradiction may be found in the legal philosophy of H.L.A. Hart. Hart has laid out a theory of law that provides useful terms and theoretical tools for attacking this problem but that Hart himself did not use for this purpose.[Note 4] Every legal system contains rules which permit the change of the other rules. Change can occur through the addition of new rules or the modification and repeal of existing rules. (I will use the term "amendment" to include addition and repeal, as well as piecemeal and wholesale alteration.) Sometimes the rules of change are tacit, and cited as needed in a way that resembles invention, but usually they are explicit.[Note 5] There must be many rules of change to deal with the many types of legal rules that must, over time, be changed —constitutional rules, statutes, decisional rules, treaties, executive agreements, administrative regulations, parliamentary rules of order, judicial rules of procedure and evidence, executive orders, canons of professional responsibility, standards of reasonableness, evidentiary presumptions, principles of the priority among rules, canons of interpretation, and even contractual rules. Each of these can be changed by the power that created it, although that power may be difficult to identify and commonly must be more restricted and channeled when used to amend than when originally used to establish law. Most of these types of legal rule can be changed by other powers as well, such as striking through judicial review, reformation in equity, overruling on appeal, judicial reinterpretation, overruling by subsequent enactment, statutory preemption, and constitutional amendment. In a hierarchy of rules in which some take precedence over others the immutability of the lower level rules is never a real possibility. Most case law is inferior to statutory law, and the latter provides a rule of change for the former. Even if case law provided no rules for its own change (for the overruling and modification of case law by subsequent cases), then some rules of change at higher echelons could always be found, if only in the amending clause (AC). Indeed, one of the defining characteristics of a "higher level" rule, or a rule which takes precedence over other rules, is that it, or a rule of its type, can alter and limit the rules below it in the hierarchy. Hence, we may assume that in every legal system with a hierarchy of rules, the lower level rules, including the lower level rules of change, are always mutable. But serious doubt may arise as to the mutability of the supreme rule of change. The supreme rule of change, where there is one,[Note 6] may be found by asking which rule of change may change all other rules of the system, directly or indirectly,[Note 7] and may not be changed by any other. In constitutional systems the supreme rule of change is the AC of the constitution, the rule which permits and structures the process of the change of constitutional rules. No lesser power may amend it, and it allows the amendment of all others.[Note 8] This means, among other things, that if an AC cannot authorize its own amendment, then it is legally immutable and may be changed only by illegal or extra-legal means such as revolution.[Note 9] The self-amendment of a non-supreme rule of change may or may not escape the apparent paradox of self-amendment (see Section 12.B). But to keep the dilemma as sharp as possible, the problem of self-amendment, unless otherwise indicated, will be limited to the problem of the self- 16