Paradox of Self-Amendment by Peter Suber first vote? If the second vote also splits, will there be a third on whether the disagreement of the second justifies upholding the jury? Will there be an infinite regress of votes? Is there a method of voting that will assure us that the series of votes will eventually converge on a unanimous holding? Is the disagreement of one vote with the prior votes as significant for these purposes as the disagreement of one judge with another? In State v. Robbins, 189 N.E.2d 641 (1963) an Ohio Appeals Court ruled that three judge panels must be unanimous in bench trials; a vote of two to one to convict would indicate a reasonable doubt that would overturn the majority's vote to convict. The state appealed this ruling however, and this Ohio Appeals Court was reversed by the Ohio Supreme Court in 199 N.E.2d 742 (1974). The same disagreement about the standing of disagreement exists for juries. Some states permit less-than-unanimous jury verdicts in criminal cases. If a person is convicted of a crime in such a state by a jury that splits, say, nine to three, then has the defendant's guilt been proved beyond a reasonable doubt? Does the mere existence of outvoted jurors (and their doubts) establish a reasonable doubt that should overturn the majority's vote to convict? In Johnson v. Louisiana, 406 U.S. 356 (1972) the Supreme Court faced this question and held that it does not; even a split jury can convict a person beyond a reasonable doubt. But in Johnson, the Supreme Court was itself split as much as it could be, five to four. Is there a reasonable doubt as to what constitutes reasonable doubt? In Hibdon v. United States, 204 F.2d 834 (6th Cir. 1963) the court held the opposite —that split juries indicate the presence of a reasonable doubt— so firmly that even the defendant's consent to abide by a less-than-unanimous verdict did not suffice to bind the defendant to a less-than- unanimous verdict to convict. H. Reflexivities of sovereignty The concept of sovereignty, even the question whether such a concept is necessary, leads to reflexivities of many types. H.1. Sovereign or parliamentary omnipotence is, from one perspective, the main topic of this book. Can a parliament by any procedure irrevocably limit its future ability to act? Can it abolish itself? Can the Reichstag turn over all sovereign power to Hitler? Are law-makers above the law? Most modern sovereigns decide that they cannot irrevocably bind their successors, as if they had a kind of continuing omnipotence. As the author of 1 Corinthians 15:27 described the sovereignty of Jesus Christ: he shall put all under his feet, but he cannot put himself under his feet. (See Section 5.B, above.) Can a sovereign bind itself for the present and future in the decision of a case, the enactment of a statute, or the agreement to a contract or treaty? As W.J. Rees summarizes the literature on this question, "All political theorists have found it logically necessary, therefore, either to deny the existence of legal duties on the part of the government so as to be able to maintain its legal sovereignty...or else to deny its legal sovereignty in order to assert its legal duties...."[Note 18] Many of these issues are beautifully encapsulated in London Street Tramways Co. Ltd. v. The London City Council, (1898) A.C. 375, in which Parliament ruled that it is bound by its own precedents. The self-justification of this rule (precedent) is only part of the reflexivity tangle in which it became involved, for in 1966 Parliament reversed the rule of London Street Tramways. For a more detailed discussion, see Section 15.B above. H.2. Can a sovereign bind itself? Nations have a greater liberty to renounce contracts and treaties than private parties, a liberty that seems to derive from their sovereignty. This liberty is ironically an incapacity: an incapacity to be bound by anything, whether the acts of others or of itself. Under some concepts of human beings, each of us is a sovereign in this sense. Epictetus and Sartre probably agree on nothing else than that we are condemned to be free. Can one validly consent to be unfree? Is a contract to make oneself a slave ipso facto void for incompetence? John Stuart Mill says yes,[Note 19] just as U.S. constitutional law says in effect that legislatures cannot use their legislative power to delegate their legislative power (unduly or excessively). One is "doomed to be free" if one's voluntary binges of irresponsibility are not defenses to liability for acts committed while drunk. The "irresponsibility defense" seems to apply only to cases of involuntary irresponsibility (insanity) and not to voluntary irresponsibility or consensual unfreedom. H.3. Sovereignty and legitimacy. Is a sovereign legitimate because it is sovereign, or is it sovereign because it is legitimate? On a practical level, should foreign governments be recognized because they are legitimate or are they legitimated by recognition? Must sovereignty by its nature jumble our notions of cause and effect, ground and consequence, this way? Can dictators validly declare the legitimacy of dictatorship? Can the people speaking through their democratically elected leaders validly declare the legitimacy of democracy? If so, then anything can be legitimate, and the concept of legitimacy becomes trivial; but if not, or if no kind of regime or practice can legitimate itself, then nothing seems capable of becoming legitimate. H.4. Circle of sovereignty. If we accept the model of lawful power that holds power to be lawful only if it is granted or authorized by a lawful power, then it seems that we have only three choices for explaining lawful power: (1) powers are authorized by higher powers in an infinite regress, (2) powers are authorized by higher powers in a series that eventually comes to a halt with a power that is self-granted and self-authorized, and (3) a plurality of powers authorize one another in a circle. The first of these is plainly false; the second and third appeal to circular concepts. The second may posit a halt to the series in an arbitrary monarch, an unreviewable legislature, or a God whose will is wholly inscrutable except for the certitude that She authorized the sovereign to reign. 136