Paradox of Self-Amendment by Peter Suber The value of laws cannot be determined by their internal consistency or chaos, for legal symmetry is admirable only when its subject matter is equally symmetrical....What if...deserving parties would have been harmed by [a truly logical result]? 32. See Section 10, note 1, for some examples. 33. Many acts and proposals of self-amendment are criticized on policy grounds relating to democracy, e.g. that they (would) make amendment too difficult or too easy. But the values supporting these objections would not be served by forbidding all inconsistency or all self-amendment. 34. "Of what use [is it] to make heroic vows of amendment, if the same old law-breaker is to keep them?" Ralph Waldo Emerson, "Experience," Essays, Thomas Y. Crowell Co., 1962, p. 297. 35. Self-stabilization is a property of norms in general. Compare this discussion of the self-stabilization of legal norms with that of language norms in Peter Suber, "The Reflexivity of Change: The Case of Language Norms," Journal of Speculative Philosophy, 3, 2 (1989) 100-129 esp. 107f. 36. See also Suber, ibid., at p. 112. 37. Ronald M. Dworkin, Taking Rights Seriously, Harvard University Press, 1977, at pp. 42-43. These objections are contained in the chapter, "The Model of Rules I," which had earlier been published in the University of Chicago Law Review, 35 (1967) 14-46. 38. Dworkin's examples of law validated directly by acceptance are rules of customary and international law, and the "principles" which he has differentiated from "rules". I believe that Hart acknowledged direct validation by acceptance with regard to the entire class of common law rules decided in cases of first impression (Hart, Concept of Law, Oxford University Press, 1961, at p. 149). 39. Dworkin, ibid. at p. 42. 40. Hugh Williamson, "Some Implications of Acceptance of Law As A Rule-Structure," Adelaide Law Review, 3 (1967) 18-45, esp. pp. 28, 33. Michael A. Payne also criticizes Hart's acceptance theory, though on a point not central here. He argues that acceptance cannot ground a concept of legal obligation. Michael A. Payne, "Law Based on Accepted Authority," William and Mary Law Review, 23 (1982) 501-28. 41. Note that I need not deny that every legal rule and principle partakes of some legal system. My inquiry does not reach this important question. 42. Gabriel Mosonyi, "Legal Obligation, Social Acceptance and the Separation of Law and Morals," Connecticut Law Review, 6 (1973) 36-48. 43. Mosonyi, ibid. at p. 38. 44. Mosonyi, ibid. at pp. 39-41. 45. Mortimer R. and Sanford H. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules, Stanford University Press, 1973. 46. Kadishes, ibid. at pp. 191ff. 47. Kadishes, ibid. at p. 192. 48. Kadishes, ibid. at p. 203. Following this quotation they cite the passage in Hart's The Concept of Law (p. 149) where Hart most clearly acknowledged the capacity of acceptance directly to validate rules that the rule of recognition did not validate. Primarily on the strength of that passage I believe Dworkin and others are wrong to impute to Hart an "unmodified" theory of acceptance. 49. Kadishes, ibid. at pp. 211, 217. 50. Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921, at p. 141. 51. Mosonyi, op. cit. at p. 47. 52. See Richard A. Wasserstrom, The Judicial Decision: Toward A Theory of Legal Justification, Stanford University Press, 1961, at p. 24: I am arguing...that many legal philosophers are surely mistaken if they infer the inherent arbitrariness of the judicial decision process from the limited utility of formal deductive logic [in law]. 53. One should not be surprised that lawyers and legal scholars would be reluctant to recognize this need. The need has been recognized by scholars outside law, however, who have contemplated its reflexivities. See Douglas R. Hofstadter, Gödel, Escher, Bach: An Eternal Golden Braid, Basic Books, 1979, at pp. 692-93: to solve reflexivity tangles in law we must turn to the people, to the "general reaction of society". 54. See note 16 above. 55. Kadishes, op. cit. at p. 65. 169