Paradox of Self-Amendment by Peter Suber I have argued that formal logic has very limited application in law, but not that a dissolution of the legal form of the paradox is strictly impossible by logical criteria. Hence I admit —without the same earnestness of hope— that there may well be a dissolution of the paradox satisfactory to formal logic. All I have argued is (1) that the obvious attempts at such dissolution fail, and (2) that in any case law can dispense with such a dissolution. The second point is the more important thesis, and stands (if it stands at all) even if a satisfactory logical dissolution should be discovered tomorrow. In this sense the state of self-amendment today is analogous to the state of calculus between Leibniz and Weierstrass. There may be a way to render it coherent and consistent, but so far we lack the theory to do so. Meantime we use it with good results. The difference is that a coherent theory of self-amendment is unnecessary for law, while a coherent theory of the calculus was vitally necessary for mathematics. If self-amendment would be logically impeccable if only certain niceties were observed in rewording the clause and in transacting its self-change, then a legal system may still ignore those niceties utterly. This remains the case whether the required changes are ingeniously simple or hideously complex. Today lawmakers listen to what logicians say they should do only to the extent that logicians form a weighty voting bloc in their constituencies. There is no reason to think that their lawmaking acts will cease to be valid if the logicians should one day become correct, any more than those lawmaking acts are invalidated when the weightier loyal opposition is correct. Legal validity is a matter of power and social practice, not abstract correctness. There will be no solution satisfactory to formal logic if formal logic bars all self-reference, say, by incorporating a theory of types, and if self- amendment unavoidably requires self-reference. Ross believes this is the case, but has been followed in this by only one commentator,[Note 3] and then only with reservations. Hart[Note 4] leads the opponents of this view in arguing that at least some self-reference is logically and legally unobjectionable. Raz[Note 5] even argues that self-reference is unnecessary in self-amendment. I argue that examples of self-reference and self- application can be legally acceptable, even if meaningless to some formal logicians, so long as legislators, voters, and judges find some meaning in them. Moreover, if all self-reference is meaningless, then a self-referential AC would be unavailable even for ordinary, irreflexive amendment, which proves far more than Ross intended or desired. Ross distinguishes between logical and legal contradictions. A logical contradiction exists between any statement and its negation. We don't have to assert one or both of the statements for the contradiction to exist. A legal contradiction exists between any two inconsistent laws that are both valid at the same time. If they are not both valid at the same time, they will be logically but not legally contradictory. Armed with this distinction, Ross has an answer to the most common attempt to dissolve the paradox of self-amendment. The most common attempt to dissolve the paradox has been to insure, or assume, that the old and new ACs are never valid and supreme at the same time. Temporal overlap can be prevented; but preventing it merely avoids a legal contradiction, not a logical contradiction. It keeps inconsistent rules from enjoying simultaneous legal validity, but thereby presupposes their logical inconsistency. That inconsistency invalidates the inference that models self-amendment because a logical contradiction between premise and conclusion (when the premises are internally consistent) suffices to invalidate a deduction. As Ross often puts it, the invalidity consists in our attempt to derive from one norm a second norm inconsistent with the first. If one rejects the distinction between logical and legal contradiction, but still holds the inference model of legal change, then one is no better situated to overcome the invalidity of the inference that models the self-amendment. If the contradiction is supposed to disappear because the old AC loses validity at the moment the new one acquires validity, then in the inference that models this process the assertion of a key premise must be suspended in mid-inference. Even if this successfully removes the inconsistency in the inference that models the self-amendment, it replaces it with a new fallacy. Logicians do not have a name for this fallacy because it cannot be performed in ordinary argument where the inference (conceived logically, as opposed to psychologically) is instantaneous or non-temporal. In discussing Ross's thesis, John Finnis[Note 6] introduces a term that helps here. If some legal rules are valid only as long as the laws that authorize them are themselves valid, then we can say that those legal rules are routinely validated; if some rules are valid even after their authorities are repealed, then they are "transtemporally" validated. For example, if a court holds its jurisdiction under a statute, and if the statute is repealed, then the court loses its jurisdiction (ceases to be a court) if it is routinely validated, but continues unaffected if it is transtemporally validated. In general we will be tempted to recognize cases of transtemporal validation wherever self-amendment seems to occur, e.g. when a new AC is validated by the old AC that lost its validity when it was superseded by the new one. I take no position the transtemporal validation of law, although superficial observation suggests that some laws are transtemporally validated and others are not. Ross argues that transtemporal validation is illogical, hence impossible, and yet is logically required for strict self-amendment. His reason for rejecting transtemporal validation is essentially that nothing analogous to it can occur in valid deductions. Inferences in which premises are "dis-asserted" just as the conclusion is asserted violate canons of deduction, including the metaphysical one that premises determine their conclusions instantaneously. Any conclusion whose derivation depends on certain premises is no longer validly concluded if we deny one of those premises, whether we deny it before the inference, after, or (supposing it is even possible) in mid-inference, after affirming the premises and before affirming the conclusion. In this sense the inference model of legal change requires that all validation be routine, or that none be transtemporal. Accordingly, if we reject the distinction between logical and legal contradiction, and assume that temporal separation of the old and new ACs suffices to avoid the paradox, then we violate the terms of transtemporal validation. 150