Paradox of Self-Amendment by Peter Suber Appendix 3: Nomic: A Game of Self-Amendment[Note 1] A. Introduction If law-making is a game, then it is a game in which changing the rules is a move. Law-making is more than changing the rules of law-making, of course, and more than a game. But a real game may model the self-amending character of the legal system and leave the rest out. While self- amendment appears to be an esoteric feature of law, capturing it in a game creates a remarkably complete microcosm of a functional legal system. Statutes are the paradigm legal rules. Statutes are made by a rule-governed process that is itself partly statutory. Hence the power to make and change statutes can reach some of the rules that govern the process itself. Most of the rules that govern the making of statutes, however, are constitutional and beyond the reach of the power they govern. Congress can change its parliamentary rules, committee structure, and revocably bind its future action by its past action, but through mere statutes it cannot alter the supermajority needed to override an executive veto, abolish one of its houses, start a tax bill in the Senate, or even delegate too much of its power to experts. Statutes cannot affect constitutional rules, but the latter can affect the former. This is an important difference of logical priority. When a conflict exists between rules of different types, the constitutional rules always prevail. This logical difference is matched by a political difference: the logically prior (constitutional) rules are more difficult to amend than the logically posterior (statutory) rules. That these two differences occur together is not accidental. One purpose of making some rules more difficult to change than others is to prevent a brief wave of fanaticism from undoing decades or centuries of refined structure. It is self-paternalism, our chosen insurance against our anticipated weak moments. But that purpose is not met unless the two-tier (or multi-tier) system also creates a logical hierarchy in which the less mutable rules take logical priority over the more mutable rules. Otherwise the more mutable rules could by themselves undo basic patterns. If supermajorities and the concurrence of many bodies are necessary to protect the foundations of the system from hasty change, then that protective purpose is frustrated if those foundations are reachable by rules that require only a simple majority of a single legislature.[Note 2] Although all the rules in the American system are mutable, it is convenient to refer to the less mutable constitutional rules as "immutable" and to the more mutable rules below them in the hierarchy simply as "mutable". The same is true in Nomic (from Greek nómos, law), where at least initially no rule is literally immutable. If our self-paternalism is to be effective, then, the "immutable" rules must conjoin logical priority with their defining characteristic of resistance to easy amendment. Many systems could have satisfied this requirement. Nomic has adopted a simple two-tier system. A system could, however, have any number of degrees of difficulty in the amendment of rules. Rules that are more difficult to amend must always take priority over those that are less difficult to amend in case of conflicts, and should contain more fundamental provisions of the legal system. Class A rules, the hardest to amend, could require unanimity of a central body and unanimous concurrence of all regional bodies. Class B rules could require 90% supermajorities, Class C rules 80% supermajorities, and so on. The number of such categories could be indefinitely large. If appropriate qualifications are made for the informality of custom and etiquette, a case could be made that normal social life is just a system of indefinite tiers. Near the top of the "difficult" end of the series, below entrenched cultural norms, are actual laws, rising through case precedents, regulations and statutes, to constitutional rules. At the bottom of the scale are those rules of personal behavior that individuals may amend unilaterally without incurring censure. Above those are rules for which amendment is increasingly costly, starting with (say) costs on the order of furrowed brows and clucked tongues, passing through indignant blows and vengeful homicide. Nomic is unambiguously a two-tier system, whereas the United States has such intermediate and anomolous things as administrative regulations, joint resolutions, treaties, executive agreements, higher and lower court decisions, state practice, parliamentary rules of order, judicial rules of procedure and evidence, executive orders, canons of professional responsibility, evidentiary presumptions, standards of reasonableness, rules for establishing priority among rules, canons of interpretation, contractual rules, and so on. Moreover, all legal systems have, as Ronald Dworkin has argued, such unwritten rule-like things as principles and standards.[Note 3] Nomic is a clean two-tier system, rather than a nuanced or multi-tier system, for the sake of simplicity and to make the game easier to learn and play. This is not to say that nuanced, intermediate levels may not arise through game-custom and tacit understandings. Moreover, the nature of Nomic allows players to add new tiers by explicit amendment as they see fit; and it is easier to add them to a simple game than to subtract them from a complex one. The two-tier system, by complicating the simplicity of a unitary system, embodies the same self-paternalistic elements of the federal constitution. The "immutable" rules govern more basic processes than the "mutable" rules, and so shield them from hasty change. Because every last rule of the game can change in the the course of play, the players may feel that they are playing a "different game" after a few rounds than when they sat down.[Note 4] In the United States, fundamental constitutional rules are mutable, but the procedure for amending them is more difficult than for less fundamental statutory rules. In Nomic, the "immutable" rules may also be amended. Rather than use a more difficult amending procedure, I have adopted a two-step procedure. The first is the "transmutation" of the "immutable" rule into a "mutable" rule; the second is the amendment of the mutable rule. In this sense all rules are amendable by the same procedure; some must simply be transmuted first. Unless players change this, Nomic permits the amendment of every one of its rules; there is no absolutely immutable foundation or inviolate level. Nomic even makes some rules explicit in order to make them amendable, when in most games they are implicit —rules to obey the rules, rules that players each start with zero points, and so on. No tacit understanding that one brings to most games simply qua games, let alone any explicit rule, 188