Paradox of Self-Amendment by Peter Suber Second, we should eliminate the possibility of the immutability of the secondary rules of change as empirically false and question begging. Even supreme rules of change are legally mutable, as evidenced by the history of the amendments to the ACs of the various state constitutions in the United States (see Appendix 2). Lesser rules of change are mutable under the higher rules of change and the ACs. One might argue that the existing (and mutable) ACs are only secondary rules of change, and that there exist rules of change at the tertiary level or above that are genuinely immutable. Alf Ross takes this position (see Section 5). But we are investigating actual ACs, which have historically often been amended. They at least are mutable, and we are only eliminating the assertion of their immutability from the dilemma. The option of affirming the immutability of higher level, but tacit, rules of change is preserved by the denial of the immutability of secondary rules, and will be examined on its merits (see Sections 8 and 9). It is important to note that to postulate immutable legal rules of any kind is to beg the question of the mutability of the rules of change. For if the rules of change may be changed, then new rules of change might reach all the rules of the system and "transmute" the "immutable" rules. Therefore, Hart's unsupported statements that some rules can lie beyond the amending power of the system, and that the amending power can be limited (71, 72, 76, 103) must be taken as unfortunate obiter dicta that beg the question under investigation. Even if they are taken as indirect denials of the self-applicability of rules of change, which they are, they are not supported by evidence or argument. The proposition that an AC may be limited beyond undoing will be examined in Section 9. We may eliminate from the dilemma the possibility that the rules of change are immutable, simply on the ground that some supreme rules of change, or actual ACs, are legally mutable. We need not reach the question whether all are mutable. However, we must eventually face the question whether actual ACs have been mutable precisely because they were not actually supreme. After eliminating the two possibilities of revolution and immutability, the dilemma may be stated very simply. Secondary rules that permit the change of primaries either permit their own change or they do not. If they do permit their own change, then they are self-applicable and prima facie paradoxical. If not, then they are changeable only by tertiary rules, which in turn could be either immutable, or mutable by self-application or by quaternary rules, and so on to an arbitrary halt or an infinite regress. C. Is law finite? Perhaps the possibility of infinite regress should also be removed. An infinite regress is objectionable, not because legal systems contain only a finite number of rules, but because obviously no legislator or judge appeals to an infinity of rules to justify any change of law, including self- amendment. Whatever is justified in law, as elsewhere, is justified by a finite number of rules or premises. Conceivably this need not be so, but in fact judges would rather invent rules to justify their holdings, or double the number of cited precedents to hide the fact that their holdings were unjustified, than to appeal to an infinity of rules.[Note 13] Ronald Dworkin, for one, believes that the number of legal rules and principles is infinite.[Note 14] So does Robert Birmingham.[Note 15] Even if they are not considered to have proved their conclusions, they make it difficult to assume without argument, as Kelsen does, that "the legal order can be composed only by a definite number of rules."[Note 16] Dworkin's thesis is based on the difficulty of individuating legal rules or principles. If it leads us to postulate an infinity of rules, it is because of the innumerable interstices and shades of meaning in any legal system. Birmingham's thesis is based on a concept of rule by which the solution to each distinct legal problem becomes a new rule. Not even Dworkin and Birmingham, however, would recognize an infinity of duplicate rules, each identical to the last except for its place in an infinite regress. The Dworkin-Birmingham thesis is important to eliminate one possible solution to the paradox of self-amendment. If we could count all the possible laws by some definite method for identifying what was and what was not a possible law, then we could say whether self-amendment was included in the series. Or if we could list all the laws that our theories would like to count as possible laws, ensuring to exclude (or include) self- amendment, then we could define the universe of possible laws as the enumerated series. This looks more absurd for law than for logic, where such methods are sometimes useful.[Note 17] We need not believe the number of laws is actually infinite to reject the utility of this method even in principle; we need only believe that the number of laws cannot be counted or iterated, either because they are always changing, or because they cannot be individuated without distortion and controversy.[Note 18] D. The paradox of omnipotence, the barber, and the liar The paradox of omnipotence is widely thought to be of the "Barber-type" (see Section 1), for it seems to prove that omnipotence cannot exist as naively conceived. If we naively assume that a deity can do any act at any time, then can she make a stone so heavy that she cannot lift it? If she can, then she is not omnipotent in the naive sense (because there is something she cannot lift); and if she cannot, then she is not omnipotent in the naive sense (because there is something she cannot create). The natural solution is to deny that there is a deity omnipotent in the naive sense, with the power to do any act at any time. Similarly, can a constitutional amending clause amend itself —especially, can it do so when it is the only authority for the amendment, when it is the supreme rule of change in that legal system, when the new version of the clause would be inconsistent with the original, when the amendment would diminish the amending power, and when the amendment purports to be irrevocable? If we regard constitutional amending clauses as legally omnipotent, on the evidence that they are the supreme rules of change in their respective systems, then we have replicated the theological version of the paradox of omnipotence. If we do not regard amending clauses as legally omnipotent, then some irrevocable limitation on their power must exist; for if all limitations on it were revocable, some power would be legally omnipotent. 18