Paradox of Self-Amendment by Peter Suber Section 5: Self-Application A. Ross's paradox of self-amendment Let us now explore the horn of the dilemma that affirms the self-applicability of the rules of change. On this horn either an individual rule applies directly to itself and authorizes its own amendment or repeal, or a set of rules applies directly to one of its members. The paradox which Alf Ross believes results from such assumptions may be simplified as follows.[Note 1] Suppose a constitution has an amending clause, cited as AC.1, which provides that an amendment to the constitution will be valid law if and only if condition K.1 is met. K.1 specifies a procedure such as ratification by three-fourths of the states within seven years. We want to amend AC.1. Our proposed amendment, call it AC.2, provides that an amendment to the constitution will be valid law if and only if condition K.2 is met. We would not want to amend AC.1 if K.1 and K.2 were the same. Hence, suppose that K.1 and K.2 make valid amendment turn on different conditions. Suppose further that they are inconsistent in the sense that each permits something that the other forbids and forbids something that the other permits. The essence of Ross's statement of the paradox is his belief that an act of amendment may be set out as a deductive inference such as the following: 1. If condition K.1 is met, then the proposed amendment (AC.2) becomes valid law. Reason: Article AC.1 2. The proposed amendment (AC.2) has been passed in accordance with condition K.1. Reason: contingent fact, certified by an official 3. Therefore, the proposed amendment is valid law. Reason: steps 1 and 2, by modus ponens[Note 2] But consider the inference when we propose to use AC.1 to amend AC.1, replacing it with AC.2. It is not surprising that AC.1 and AC.2 are inconsistent rules; their inconsistency is a desired byproduct of the original desire to amend AC.1. But their inconsistency raises a problem. If we make AC.2 the proposed amendment in the inference above, then the conclusion contradicts the first premise. The first premise asserts the legal validity of AC.1 and the conclusion asserts the legal validity of AC.2. If the two clauses are inconsistent with each other (by hypothesis), then each excludes the other. Hence, the first premise asserts the exclusivity of condition K.1, and the conclusion asserts the exclusivity of condition K.2; by hypothesis these are inconsistent assertions. This inconsistency makes the inference invalid. An inference in which the conclusion contradicts a premise, when the premises are consistent with one another, is demonstrably invalid. If logically valid deductive inference is a good model of legally valid amendment, then no amendment can be valid whose corresponding inference cannot be rendered valid. That is the paradox. Whenever the amended AC will contradict the original AC, which will almost always be the case in self-amendment, then the inference that models the act of self-amendment will be invalid. The most common objection to make at this point is to observe that AC.1 and AC.2 were never in effect at the same time, and that there is no contradiction in saying AC.1 has a certain period of validity and AC.2 has another distinct from the first. But even if true, that does not suffice to avoid the contradiction. AC.2 receives its authority or status as valid law from AC.1. It is precisely this transference of authority that the deductive inference is intended to model. According to this concept of law, a legal rule is valid if and only if it is validated by prior law through a valid inference. If AC.2 and AC.1 are never in effect at the same time, then they may not contradict one another as simultaneously binding laws. But their inconsistency as propositions outside time and law invalidates the inference by which alone AC.2 is to become valid law. AC.2 would not be valid law if it were not the conclusion of a valid inference; but it cannot be the conclusion of a valid inference as long as AC.1 is the reigning amending clause and must take a place in the premises. There are many ways to refine the time-based objection to Ross, and many ways to refine the Rossian reply. The family of objections based on time will be explored in more detail in Section 10. If Ross is right, then an AC that is already valid law cannot amend itself without contradiction. If it is the only lawful means of amending the set of rules of which it is a member, then it cannot be amended by any means whatever. Hence it will be immutable. If the rule of change were not supreme, it could be amended by a higher rule, but still could not amend itself. Self-application for non-supreme rules of change leads to contradiction as clearly as for supreme rules of change. Ross's analysis stops after he locates this contradiction. But we may easily extend it from contradiction to paradox for any AC thought to be omnipotent. If self-amendment is self-contradictory, then self-limitation of a legally omnipotent AC is as paradoxical as the self-limitation of an omnipotent being. If a constitutional AC cannot limit its own power irrevocably (immutably), because the required self-amendment is self- contradictory, then there is a constitutional amendment it cannot enact; but if it can, then there is a constitutional amendment it cannot amend or repeal. Either way, it cannot be omnipotent in the naive sense (able to enact any law at any time). 24