Paradox of Self-Amendment by Peter Suber Article 38(1)(d) of the statute creating the International Court of Justice acknowledges the law-making significance of scholarly writings (for international law). What if a scholar wrote an essay deploring this provision, arguing that only the acts of states, not those of private individuals, should affect international law? What if the issue became controversial, and scholarly opinion divided on the wisdom of the provision? What if this paradox of self-repeal became controversial? The presumption of death that arises from a seven year absence is rebuttable by the person's reappearance. As a presumptively dead person, does the returnee lack standing to prove her reappearance, say, in the face of a charge of fraudulent impersonation? (The dead usually lack standing.) Or is legal life dispensed in order to prove legal life, the presumption held rebutted in order to permit the rebuttal? H.8. Renvoi. Some statutes and contract terms tell us which law should govern injuries or breaches. For example, if a defective tire explodes and causes a car to hit a pedestrian, we turn to these statutes to ascertain whether a suit by the pedestrian against the tire manufacturer should be decided under the law of the state where the accident occurred, the state where the tire was manufactured, the state where the manufacturer is incorporated, or some other place. If a contract is violated, a term in the contract usually tells us whether to decide rights and remedies under the law of the state where the contract was made, where one of the parties is incorporated, where the violation occurred, or some other place. Since the laws of different states and nations can differ significantly, these choice-of-law rules can be decisive. Suppose we are citizens of nation A, and file suit against a foreign corporation in one of our own courts. The local choice-of-law rules tell us to apply the law of nation B. We consult B's law and find that its choice-of-law rules direct us to apply the law of nation A. A conflict or circle in these "pointers" to applicable law is called renvoi. Because it occurs frequently, renvoi has a more specialized vocabulary. If nation B sends us back to nation A, that is remission; if it sends us on to nation C, that is transmission. Renvoi can be prevented if, when we are directed by A's law to look at B's law, we look only at B's substantive law, not B's choice-of-law rules as well. This is the solution adopted by a majority of courts today. Another solution, called "partial renvoi", is to accept the renvoi from B back to A, but once back in A to look only at A's substantive law, not A's choice-of-law rules again. The "non-solution" of looking always at both the substantive and choice-of-law rules of a jurisdiction is called "whole renvoi". In theory whole renvoi can lead to an infinite (that is, unending) loop. But because we are dealing with law, not software, it never does so in practice. Some court always changes the rule from whole renvoi to partial renvoi, at some point in the burgeoning regress, and terminates the renvoi.[Note 21] The general practice today is to adopt different solutions for different kinds of cases. For example, whole renvoi is usually used in cases of divorce and title to land, and must be used in tort claims against the federal government. This means that the exact injury or complaint, in its full historical context, must be subsumed under traditional legal categories before we know which kind of solution to renvoi to use, and hence before we know which state or nation's law applies to the case. But many concrete injuries are borderline cases that are put into different categories by the laws of different places. Hence we have a meta-renvoi paradox: sometimes we must classify a wrong in order to know what law applies, and we must know what law applies in order to classify it.[Note 22] Because renvoi problems are actually solved without incurring a genuine infinite regress, they are especially good examples of problems that are paradoxical for formal logic but not for law. Something important about the nature of law is shown merely by the fact that they are soluble in law, like the paradox of self-amendment. Fiori Rinaldi concludes his discussion renvoi by saying[Note 23] These clashes arise from adherence to formal logic and can generally be resolved only by 'breaking out' of logic itself. Laurence Goldstein follows J.C. Hicks in comparing the logic of renvoi to the logic of the irreflexive liar: A. Statement B is false. B. Statement A is true. But Goldstein uses the legal solubility of renvoi problems to explain how it is that law can solve paradoxes that logic cannot.[Note 24] [T]he crucial difference is that in the case of [statements A and B] as in the case of any statement, it makes no sense to stipulate that one of them is true, since to say that a statement is true is to say that it corresponds in some way to some state of affairs in the world, and we cannot stipulate how things are in the world. But we can stipulate what laws are to prevail and this is in fact just what we do do. I. Self-amendment Self-amendment appears in many contexts other than constitutional amending clauses. If a written contract stipulates that only written modifications will be effective, may that provision be modified orally? It is reflexive either way: if it is orally modifiable, then self-excepting, and if not, then self-applicable. Can a contract's no-waiver clause be waived? Why can a will's no-revocation clause be revoked? Why can a will's no- contest (in terrorem) clause be contested? (See Section 9.C above.) In American states that allow home rule, the "pyramid of power" may be inverted by a vote of a lower level. Is the lower level thereby made an apex power, or an apex power only subject to the power of the apex of the original pyramid? How can a sovereign release a subject from subjection? If a parent tells a child, "you are now completely free of my commands," then there is a sense in which the child owes its liberty to that parental dispensation; if the parental fiat is revocable, then freedom cannot be conferred by 138