Paradox of Self-Amendment by Peter Suber may contradict the real interests of the acceptors; the latter is qualified and wary, resented acquiescence coerced by violence and the threat of violence. Both are pathological types of acceptance that create pathological legal systems in which legality and legitimacy are both compromised. Acceptance may exist in the fullest sense but then decline, or exist only because it is coerced or ideological. It may be absent, or the citizens who would express dissent may be expelled or silenced. The picture in any given society is not easy to read; my theory does not require that it be easy. But it does imply that legitimacy be a matter of degree tied to the complex fortunes of acceptance, and that where there is no genuine acceptance, but only submission to force, then there is no law, only gangster rule. See Section 2.B. In a fully worked out acceptance theory, these details would be far more interesting and important than those that pertain to the domestication of paradox. But in the present work, unfortunately, further elaboration is beyond the topic. 17. I argue in Section 21.C below that the repeal of an amending clause makes acceptance of its self-resurrection significantly less likely but not categorically impossible. Such self-resurrection now seems on the verge of happening on Colombia. 18. Descartes' letters were first brought into the discussion of the paradox of omnipotence by Harry G. Frankfurt, "The Logic of Omnipotence," Philosophical Review, 73 (1964) 262-63. 19. In Section 10 I argued that rules inconsistent by content are not rendered consistent by temporal separation, even when one authorized the other. In Section 11 I argued that the specific authorization of a later rule by an earlier rule does not prevent inconsistency between the two rules. 20. Lon Fuller, The Morality of Law, Yale University Press, rev. ed. 1969, at pp. 67-68. 21. A.M. Honore, "Reflections on Revolutions," The Irish Jurist, n.s. 2 (1967) 268-78 at p. 270. 22. I should note that both Fuller and Honore believe that their examples can reasonably be interpreted as free of logical contradiction. I consider each an example of "inconsistency" as defined by the direct or compliance test discussed in Section 12.C. Fuller's example may also, perhaps best, be seen as an "inconsistency" by the deontic test of Section 12.C. 23. Dennis Lloyd, The Idea of Law, Penguin Books, rev. ed. 1976, at p. 294. 24. The classic statement that policy, not logic, governs the growth of law is Oliver Wendell Holmes, Jr., The Common Law, Little, Brown, and Co., 1881, at pp. 35-36: The very considerations which judges most rarely mention, and always with an apology, are the secret root from which law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis....[T]he law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism. 25. J.D.I. Hughes, "Judicial Method and the Problem in Ogden v. Ogden," Law Quarterly Review, 44 (1928) 217-26 at pp. 218- 19. 26. Hughes, ibid. at p. 219. 27. Another proponent of the strict formalist or inference model is Ricardo Alberto Caracciolo, e.g. in his "Contradictions in the Legal System," Archiv für Rechts- und Sozialphilosophie, 55 (1979) 457-73. His chief thesis is that legal systems must be consistent in the sense that, for any two contradictory norms, at least one must be invalid. He softens this rigid position by admitting that there is no adequate decision procedure for ascertaining which of two inconsistent norms is valid (a member of the system) and which is invalid (barred or preempted by the other). Hence "we cannot exclude the possibility that two rules may be incompatible for a judge, and may not be for another." Ibid. at p. 462. See also Eduardo Garcia Maynez, "Some Considerations on the Problem of Antinomies in the Law," Archiv für Rechts- und Sozialphilosophie, 49 (1963) 1-14. 28. Honore, op. cit. at pp. 270-71. 29. A.G. Guest, "Logic in the Law," in A.G. Guest (ed.), Oxford Essays in Jurisprudence, A Collaborative Work, Oxford University Press, 1961, pp. 176- 97, at p. 178. 30. Cf. Holmes, op. cit. at p. 36: The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow. 31. Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921, at pp. 112-13. On the limited value of legal symmetry expressed by Cardozo in this passage, compare Jack Leavitt, "Scope and Effectiveness of No-Contest Clauses in Last Wills and Testaments," Hastings Law Journal, 15 (1963) 45-91, at p. 91: 168

The Paradox of Self-Amendment - Page 201 The Paradox of Self-Amendment Page 200 Page 202