Paradox of Self-Amendment by Peter Suber A third model lies between the inference and acceptance models in many ways. It may be called the procedural model. It derives the validity of a newly changed rule from compliance with the demands of a valid procedure. Procedures are legal entities, not logical ones, and may perform whatever valid law permits them to perform, not only those things that can be validated by sound deductive inferences from prior rules. If the procedure for amendment requires x, y, and z for a valid, final, and complete act of amendment, and if x, y, and z have certifiably been performed, then amendment has occurred and is valid under the procedural model. The importance of the procedural model, and what distinguishes it from the inference model, is that the amendment will be valid even if there is reason to find the outcome inconsistent with x, y, or z, with a rule of change, or with itself. The procedural model envisions outcomes abstractly, as separate and separable from their mode of becoming, and without any "backward-looking" consideration for the procedure itself or its premises in the particular case. Under the procedural model, the outcome of a judicial procedure may deny the jurisdictional basis of the proceeding without undermining the outcome itself.[Note 8] The outcome of a legislative investigation may reveal the total absence of the required basis for a legislative investigation without thereby invalidating the outcome itself.[Note 9] The outcome of a jury deliberation may logically imply the opposite outcome without subverting itself or legally requiring that the opposite outcome be given effect.[Note 10] Logically the procedural model is anomalous, if not scandalous. But that is just to say that it differs from the inference model. If procedures are pictured as inferences, then the procedural model permits invalid inferences to make valid law. For the procedural model, the validity of the outcome does not depend on the logical validity of any inference, and therefore does not depend on consistency with any antecedents; it depends solely on the legal validity of the procedure itself and the satisfaction of its requirements. In short, under the procedural model to picture procedures as inferences is inaccurate, for it suggests that some permissible procedures are impermissible. Hart's exposition of the acceptance model does not go into sufficient detail to allow us to determine its exact relations with the procedural model. Both models will allow the outcomes of procedures to contradict indispensable premises, although for different reasons. For the acceptance model, procedures may be defectively applied, or bypassed for invention; for the procedural model, acceptance is irrelevant once the procedure is known to be lawful. D. Other views The inadequacy of the time-based objection is the main reason why I prefer Hart's acceptance model to Hart's own explicit answer to Ross. In his later essay, "Self-Referring Laws,"[Note 11] Hart uses the time-based objection and did not notice that a solution wrought from his own acceptance theory applies elegantly to the problem and far surpasses the adequacy of temporal separation. Speaking of the American constitution and its AC, Hart said,[Note 12] It may be true, at least in some cases, that a norm cannot be derived from 'a source of derivation' with which it conflicts. But there is no conflict if Article V is amended in accordance with its own provisions. For the original Article V and the amended Article relate to different periods of time: the original procedure is to be used until it is replaced by the new, and the new procedure is to be used thereafter. This argument is unavailing against the inference model, and unnecessary for other models. Hart seems to sense this, and after quoting Ross on the inferential structure of legal change, replies,[Note 13] To this it might be objected that the exercise of legislative power to introduce new norms is not a deductive inference and it is not clear how this logical principle applies to a legislative act. Hart has suggested an adequate solution, I contend, simply by rejecting the inference model. But this is far different from dissolving the paradox for the inference model or for formal logic generally. Hart continues, saying that an act of self-amendment that led to an inconsistent new AC is in any event perfectly possible and coherent if the old AC had self-embracing omnipotence. This proposal will be considered in Section 11. Ross's statement of the paradox of self-amendment evoked many responses. The Scandinavian comments all relied on the time-based objection.[Note 14] In English I have found only six responses in addition to Hart's: by Geoffrey Marshall, Joseph Raz, Norbert Hoerster, J.M. Finnis, J.C. Hicks, and William F. Harris II.[Note 15] Of these Marshall, Raz, and Hoerster all urge the time-based objection (with other objections), and Finnis shows its insufficiency; Hicks generally supports Ross. Harris does not decide the adequacy of Ross's case. Marshall argues that a "phased" rule of amendment that explicitly said that its power will be limited by its successor will avoid the self-referential aspect of the paradox.[Note 16] It will not avoid the logical contradiction between premise and conclusion for the inference model. Raz believes that at a certain moment, T1, the old AC may be valid and a new AC may be adopted in accordance with it, while at T2 the old AC is invalid and the new AC is valid.[Note 17] This is certainly true, or could be true, but Raz is wrong to say that in that form, "the conclusion does not contradict the assumptions and the argument is both valid and accurately describes the situation."[Note 18] Raz deals only with legal, not logical contradiction, and ignores the problem of transtemporal validation for the inference model. The argument or inference will be invalid so long as one premise asserts the validity of the old AC and the conclusion asserts the validity of the inconsistent new one.[Note 19] Hoerster argues that the new AC does not contradict any valid law, but only contradicts the old AC and never when both are valid.[Note 20] Here Hoerster also confuses legal and logical contradiction. The contradiction vanishes legally when the old AC passes out of effect, but the logical contradiction endures. 77