Paradox of Self-Amendment by Peter Suber A lawyer would approach the problem differently. Amendment clauses to constitutions already exist and take particular forms. Perhaps a state or nation has already amended its amendment clause, or tried (see Appendix 2). If so, perhaps the amendment's validity was challenged in court. If so, then the holding of that court will be more or less persuasive in one's own jurisdiction according to the complex and partially indefinite rules of stare decisis, the doctrine of precedent. If the lawyer does not care to answer the question for a particular jurisdiction, but wants a general answer, then she is already going beyond the limits of her professional role and seeking an answer more qua philosopher or social theorist than qua lawyer. But a general answer, not tied to a particular jurisdiction, may be obtained by legal research nevertheless. A survey of jurisdictions will reveal the dominant rule, which is a vector of historical decisions, not the conclusion of a deductive or even an inductive argument. The historical decisions may all have been wrong by criteria invoked by logicians and wise citizens, even using the lawyer's own premises, but they are authoritative and to that extent not completely wrong by criteria invoked by lawyers.[Note 23] On the other hand, the lawyer may consult the classic texts of jurisprudence and find there a direct answer, a dominant view, or principles that provide an answer. This authority may be set against the case law, not as higher law, but as a more reasonable view. The lawyer then again acts more like a philosopher, accustomed to free inquiry, than a legal practitioner, accustomed to answering questions within the confines of an inherited system, no matter how silent, inconsistent, or unreasonable it may be on the question. If there is no case law on the question, then the views of the writers may be decisive in guiding a judge who faces the question for the first time. Then philosophers may assume the role of indirect legislators. I will argue in Section 6 that one of Ross's difficulties lies in mistaking the reasonable view for higher law. If the logical or reasonable solution to the paradox requires appeal to a rule of reason or inference, then it would still not follow that such a rule actually exists tacitly in every legal system. The proposition that logical rules are higher laws binding ordinary laws is challenging and important. However, to make it an a priori assertion is to try to legislate for law from the standpoint of logic, not to try to understand the actual relations between law and logic. I will take both the philosopher's and lawyer's approach, and ask what is the most reasonable answer and what is the legal answer to the question whether an amendment clause may authorize its own amendment, or whether a legal power may limit or eliminate itself, or whether an authority may authorize its own revision or repeal. The ultimate premises from which answers will be sought will include those of our legal system as well as logical principles. If real amendment clauses are mutable only through contradiction or revolution, then that will not automatically mean that such amendment is legally impossible; for contradiction only defines logical, not legal, impossibility. If legal practice allows self-amendment despite its logical impossibility, then honest scholars will revise their opinions of legal possibility —not to mention their concepts of legal reasoning and legal rationality. Even if logical possibility is an a priori, not an empirical, matter[Note 24] then legal possibility is certainly an empirical matter, to be determined by the proper legal agencies within the world of experience and to be discovered by scholars using empirical methods. A priori reasoning about what is legally possible or permissible begs the question whether and to what extent legal systems are (and ought to be) logical. One may regret the lapse of law from abstract logic, appreciate the equitable flexibility it affords, take satisfaction in the pretensions it punctures, or decry the dangers it makes possible. Here my primary concern is simply to show it. Notes 1. There is an enormous literature on logical paradox; see Peter Suber, "A Bibliography of Works on Reflexivity," in S.J. Bartlett and P. Suber (eds)., Self-Reference: Reflections on Reflexivity, Martinus Nijhoff, 1987, pp. 259-362. For good general discussions of logical paradoxes see Alfred North Whitehead and Bertrand Russell, Principia Mathematica to *56, Cambridge University Press, 1970, pp. 60-65; John van Heijenoort, "Logical Paradoxes," in Paul Edwards (ed.), Encyclopedia of Philosophy, Macmillan, 1967, 5:45-51; Susan Haack, Philosophy of Logics, Cambridge University Press, 1978, pp. 135-51; J.L. Mackie, Truth, Probability, and Paradox: Studies in Philosophical Logic, Oxford University Press, 1973, Ch. 6 and the Appendix; T.S. Champlin, Reflexive Paradoxes, Routledge, 1988. 2. See Robert L. Martin (ed.), The Paradox of the Liar, Yale University Press, 1970, 2d. ed. 1987, which contains an excellent bibliography, and Recent Essays on Truth and the Liar Paradox, Oxford University Press, 1984; Alexander Rüstow, Der Lügner: Theorie, Geschichte und Auflösung, Erlangen: Teubner Verlag, 1910; and Jon Barwise and John Etchemendy, The Liar: An Essay on Truth and Circular Propositions, Oxford University Press, 1987. The Liar paradox is at least as old as St. Paul's Epistle to Titus (1:12-13), and has been studied for centuries. For its history prior to its treatment under modern logic, which is well covered by Martin's 1970 anthology and bibliography, see Alan Paul Anderson's historical essay in Martin (ed.), op. cit., pp. 1-11; Francesco Bottin, Le Antinomie Semantliche nella Logica Medievale, Padua: Editrice Antenore, 1976; and Paul V. Spade, The Medieval Liar: A Catalogue of the Insolubilia Literature, Toronto: Pontifical Institute of Medieval Studies, 1975. 3. By "in succession" I mean in time and after a process of change, as a white piece of paper becomes black after burning. Cf. Immanuel Kant, Critique of Pure Reason, St. Martin's Press, 1968 (original 1781, 1787), B.49; see also B.191 and B.148. 4. Bertrand Russell, The Principles of Mathematics, Cambridge University Press, 1910, Chapter 10. 5. Kurt Grelling and Leonard Nelson, "Bemerkungen zu den Paradoxien von Russell und Burali-Forti," Abhandlungen der Fries'schen Schule, n.s., 2 (1907-08) 300-334. 6. W.V.O. Quine, "Paradox," Scientific American, 206 (1962) 84-96 at p. 84. The paradox was apparently first published in its present form by Bertrand Russell in 1918, although he attributed it to a German whose name he could not recall. An earlier variation occurs in Thomas Aquinas concerning a teacher who teaches all and only those in his town who do not teach themselves. Quaestiones Disputatae de Veritate q.11, a.2 (1256- 59). See Pierre H. Conway, "The 'Barber' Paradox," Laval Theologique et Philosophique, 18 (1962) 161-76. 7