Paradox of Self-Amendment by Peter Suber The paradox need not be cast in terms of the direct amendment of the AC. If a constitutional AC cannot add an immutable provision to any part of the constitution, then there is is a legal rule that it cannot enact; if can add such a provision, then there is a rule that it cannot amend or repeal. Either way, it fails to be omnipotent in the naive sense. Finally, Ross would add, if self-amendment is a contradiction logically, then it is impossible legally. The last conclusion depends on the view that legal change is transacted by logical inferences and that no legally valid change can occur through a logically invalid inference. If we deny this model of legal change and allow lawful amendment at least sometimes in the face of logical invalidity in the corresponding inference, then we must still confront the fact that, apparently, self-amendment involves contradiction. If legal change is not prevented by contradiction, then it tolerates contradiction, which must itself be faced squarely and explained. It appears, then, that self-amendment is contradictory. If it is impermissible for that reason, then we must explain why logic rules so imperiously over this domain of human affairs where inconsistency seems to abound. If self-amendment is permissible anyway, then we must explain how law can tolerate this contradiction while forbidding many other things in the name of consistency. A third alternative is that there is no real contradiction in self-amendment, only an apparent one that can be explained away. Attempts to make this work are considered, and ultimately rejected, in Sections 10 and 11. B. Some distinctions In order to facilitate discussion of the paradox some distinctions must be introduced. First, the paradox arises equally (if at all) from direct and indirect self-amendment. Direct self-amendment is the sort presented above: the application of an AC directly to itself just as to any other clause of the constitution. Indirect self-amendment is the replacement of a valid AC by a different one through an act that replaces the whole constitution of which it is a part. Indirect self-amendment is usually performed by constitutional conventions. It requires not only that the new constitution contain a new and different AC, but also that the new constitution and AC become law under the authority of the old AC (see Section 12.A). Again, the paradox arises equally (if at all) from immediate and mediate self-amendment. These terms are taken from classical logic where an immediate inference is one that reaches a given conclusion validly in one step, whereas mediate inference requires extra premises or steps to arrive at a given conclusion from a given premise. If an AC is written as a single rule, then its self-amendment would be the direct or indirect application of that rule to itself, sufficing to amend in that one step by that one rule. This is immediate self-amendment. The AC may be written as many sub-rules, however. If each is an entire rule sufficient to authorize amendment, then applying a sub-rule to itself is also immediate self- amendment. If the sub-rules must work together to amend, then self-amendment becomes the application of a set to a member or a subset. That I will call mediate self-amendment. One of the most important distinctions relating to the paradox of self-amendment and the paradox of omnipotence is borrowed from Hart's discussion of the omnipotent sovereign. An omnipotent parliament, he says, may limit its power to make law, without paradox, if its omnipotence is "self-embracing", and may not do so, at least without paradox, if its omnipotence is "continuing".[Note 3] Self-embracing omnipotence is unlimited power to make law, including power to affect that power. It may be used against itself and lost or limited irremediably. Continuing omnipotence is unlimited power to make law, but not including power to limit that power, thereby insuring that the omnipotence of the entity continues. Self-embracing omnipotence is unlimited but limitable power; continuing omnipotence is limited only to insure that it is (otherwise) illimitable. Self-embracing omnipotence is the power to make law on every subject, and therefore includes laws that diminish this power irremediably, whereas continuing omnipotence is the power to make law at every moment, and therefore excludes laws inconsistent with this very continuity. The self-embracing character of self-embracing omnipotence is mutable and even mutable irrevocably; the continuing character of continuing omnipotence is immutable, or at best mutable only revocably. Beings of continuing omnipotence are doomed to life, power, and even doomed to freedom, while beings of self-embracing omnipotence are free to resign, abdicate, and self-destruct. Pliny the Elder said mortals were freer than the gods because mortals could commit suicide.[Note 4] He obviously thought that divine freedom was continuing, and that continuing freedom was inferior to self-embracing freedom. By contrast, Jesus is depicted in 1 Corinthians 15:27 as having continuing omnipotence: For he hath put all things under his feet. But when he saith all things are put under him, it is manifest that he is excepted, which did put all things under him. Shakespeare's Richard II views his own sovereignty as self-embracing. Hence, he could not be deposed; he could only abdicate. He emphasizes this to Bolingbroke, who mistakenly thinks of himself as Richard's overthrower: Now mark me, how I will undo myself: [...] With mine own tears I wash away my balm, With mine own hands I give away my crown, With mine own tongue deny my sacred state, With mine own breath release all duteous oaths.[Note 5] 25