Paradox of Self-Amendment by Peter Suber derive.[Note 33] In short, the inconsistency of self-amendment and other procedural "impossibilities" is acceptable because it injures no social interest. It is even desirable to the extent that its product (amended ACs, for example) is desirable and obtainable by no other equally acceptable means. As a society we forgive the contradiction of self-amendment in order to procure amended ACs without imposing questionable exceptions on unqualified language, allowing blatant amendment by judiciary, or increasing the risk of revolution. A society that finds an alternative method of procuring amended ACs without unacceptable or less acceptable consequences will be much more at liberty to forbid strict self-amendment on logical grounds. The acceptance theory is saved from absurdity if it can explain why some inconsistencies are contingently accepted in law while others are not. My belief is that such acceptance is a function of perceived harmlessness to social values, that consistency is not itself an important social value but promotes several others, and that in some contexts, especially in the definition of certain procedures, contradiction may be stark, ineliminable, and widely noticed and still be accepted. These conclusions bear on the question of the role of deduction in law at least (as noted) by highlighting the limited validity of arguments by modus tollens in law, and the invalidity of deriving all propositions (hence, all contradictions) from one contradiction in law. Other consequences for the role of formal logic in law I leave for another occasion. C. Some oddities and implications The theory of contingent omnipotence and contingent immutability has highly unusual consequences that must explicitly be jettisoned or embraced if the theory as a whole is to maintain its plausibility. One of the most unusual consequences is that every rule of change, not just constitutional ACs, has contingent omnipotence. Statutes, for example, provide a rule of change for statutes and case law, but are ordinarily thought incapable of amending the constitution. But under the direct acceptance theory, if a statute did purport to amend the constitution, its success could not be ruled categorically impossible. Its success would be contingent upon future events, namely, the mustering of sufficient acceptance. The requisite acceptance could override or amend the rule of recognition that stated that statutes were incapable of amending constitutions. If such an event occurred, it might be true to call it a revolution, but it would not be helpful in deciding its legality. For if we are already committed to the direct acceptance theory, then we know that appropriate acceptance can validate revolution. Under any name, it would be lawful or, more precisely, it would have been made lawful ex post facto by contingent social practices. Such a showing of acceptance is improbable, and the existing forms of law and the general loyalty to them are large reasons why it is improbable. But it is contingently possible, which is the point here. This gives the statute-making power contingent omnipotence. For the same reasons, the power of judges to amend rules of case law, the power of administrative agencies to amend regulations, and the power of the Chicago City Council to amend Chicago municipal ordinances can each amend the federal constitution, federal and state statutes (even those of other nations), and one another. Each rule of change can amend each, and each can amend every sort of legal rule —contingently. The probabilities that these contingencies will come to pass diminish fast, and are vanishingly small for the power of the Chicago City Council over the federal constitution. No number need be assigned to these probabilities, and no threshold of probability need be surpassed to call them contingently possible. The direct acceptance theory implies this omni-omnipotence, which should be acknowledged. But immediately after that is acknowledged, the extreme improbability of these absurdities actually occurring must be acknowledged and emphasized. The legal formalist, horrified by what has been made possible, will seize upon the possibility without regard to its improbability. The direct acceptance theory is an empirical theory that attempts to understand the historically actual foundations of legality —in acceptance— and the historical processes that govern so basic a phenomenon. The theoretical possibility of the Chicago City Council amending the federal constitution, because it is dramatic and absurd, obscures the fact that acceptance is historical, actual, and determined by a web of interests, developments, and movements inseparable from human preferences and practices. The possibility of it authorizing absurdity is not on the order of a coin coming up heads 100 times in a row —improbable but in the long run inevitable. It is a function of what the people and officials of a legal system desire, produce, and tolerate. The occurrence of absurdity is not to be feared as if a capricious, random process were at work. We are at work, and will always have the overriding voice as to whether absurdity will occur. In fact, it is just this burden of responsibility that we may contingently bear well or shirk that is captured by the concepts of contingent omnipotence, contingent immutability, and direct acceptance. We respect and believe it right to respect the existing rules prohibiting statutory amendment of the constitution, defining the jurisdiction of the Chicago City Council, and so forth. The largest obstacle to the absurdities that are contingently possible is the content of existing law and our sense of obligation to abide by it on the whole. As Kelsen might say, an effective legal system is generally obeyed, with the consequence that its provisions are effectively safeguarded against absurd, contingent breaches. This is not at all surprising, for it simply restates the banality that law prevents chaos. It is a human device and as such occasionally falters and constantly requires attention and effort to prevent widespread faltering. The idea that law is so "firm" that it can protect us from ourselves —for long— is superstitious reification.[Note 34] Acceptance is less likely to muster on behalf of a Chicago City Council amendment of the federal constitution the more blatantly the amendment violates existing rules and the current sense of loyalty to law. In this sense, law itself keeps the probabilities low that gross violations will be contingently accepted. This may be called the self-stabilization of law.[Note 35] It is not the same as self-preservation, for an accepted violation would ex hypothesi still be law. But the content of the existing rules and principles forbid their own violation. The pervasive respect for law assures us that the current content of law will be given effect by and large. Most violations of law are unacceptable in the sociological sense precisely because they are violations of law. In this sense law and acceptability reciprocally influence each other. While acceptance may contingently authorize a clear departure from existing law, more often it will override or amend the rule of recognition in cases where social loyalty to law is 160
