Paradox of Self-Amendment by Peter Suber The Kadishes argue against the "law and order" model of legal rules, according to which mandatory legal rules such as the criminal law demand unqualified obedience, impose an unremitting obligation to comply, and justify punishment for the smallest infraction. Punishment is justified for this model without regard to the defendant's moral defenses, public attitudes and expectations, and the benefits to society to be reaped by the offense or by non-prosecution. One of the Kadishes' chief legal tools in overturning the "law and order" model they call "principles of acceptance". These principles define how the fearsome, mandatory obligations of law are actually to be taken, which is not as unremitting, mandatory obligations. The Kadishes evidently owe much of their discussion to Hart,[Note 46] but criticize him for silence or obscurity on their central questions: whether the accepted rule of recognition allows departures from "mandatory" rules in exceptional circumstances, and how citizens are to decide this question.[Note 47] They believe that principles of acceptance make up this deficiency of the Hartian rule of recognition. One way in which actual practice differs from the "law and order" model for the Kadishes is that violations may subsequently be validated by acceptance. The Kadishes emphasize the ex post facto application of the justification. In the following passage the "violation" is a judicial holding that exceeds antecedent authority, but in the name of social change; it could be taken as the judgment of an individual deciding to disobey.[Note 48] [J]ustification may have to wait for subsequent legal developments —developments for which the judgment itself may end up providing at least a practical ground. Until the future vindicates it, however, that judgment rests upon a gamble that it is, and will be recognized as, the sort of decision that law ought to be rendering in that kind of case. The Kadishes conclude that law is not just mandatory rules, but neither is it anarchic acceptance without mandatory rules. It is "the combination of mandatory rules and principles of acceptance," or more precisely, "mandatory rules...tempered by principles of acceptance."[Note 49] This formulation is still imprecise; I believe it is rigorously fleshed out in the concepts of contingent omnipotence, contingent mutability or immutability, and direct acceptance. Of course, many thinkers not at all concerned to justify anything like the direct acceptance theory have made the point that principles of acceptance or a reserved power to overrule any formal rule by social practices do not abolish mandatory rules, obligations, or the rule of law. The power, even the right, to depart from old rules may be ascribed to common law judges. But as Cardozo said,[Note 50] The judge, even when he is free, is still not wholly free....He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.' The direct acceptance theory does not assert that the contingent mutability of all legal rules, or the perpetual possibility that any violation may be ratified by future events, unweaves the fabric of law. Rules and principles function as rules and principles, even though they are subject to overruling by acceptance. This subjection to contingent overruling changes their modality but not their function, and is primarily of interest to historians and philosophers of law, not to officials or citizens. Even when such overruling actually occurs, anarchy is not the result, for the acceptable violation is endorsed by the complex of practices and preferences that comprise acceptance. If that structure constitutes or reflects common morality, then as Mosonyi put it, critical acceptance cannot make "the state of law...any more anarchic than that of conventional morality."[Note 51] The special capacity of acceptance to tolerate contradiction does not imply that all contradiction must be accepted (Section 21.B). What Cardozo said about legal rules may be said of logical rules in law. That they may in a certain sphere be disregarded or overruled does not at all imply the inevitability or even the permissibility of arbitrary decision.[Note 52] Other theories than the direct acceptance theory can account for the persistence of standards or structure even in areas of "discretion" and in periods of suspension and rapid change. But none can account so well for the standards by which the rules are suspended, or by which a sphere of liberty is carved out. Logical paradoxes are not representative of most occasions and motives for this overruling of positive law by acceptance. But paradoxes are especially sharp cases because they cannot be coped with otherwise. They twist up the very rules of positive law itself. They demand an explanation that accounts for the relaxation of firm positive law and rigid logical principles in law.[Note 53] The rarity of the call upon the capacity for such relaxation does not diminish the need to account for it, any more than a small anomaly of Newtonian physics may be ignored even if the alternative is conceptually revolutionary. I have articulated a theory of the direct authorization of law by complex social practices summarized under the name "acceptance". I have articulated the theory only as far as necessary to see its healthy effects on the paradox of self-amendment, omnipotence and immutability, democratic theory, and a few other issues in jurisprudence. But I have not given a complete theory of acceptance, for this was not the place to do so. However, to prevent omission of other parts of the theory from causing misunderstanding, I would like to make two points quickly. First, the direct acceptance merely says that acceptance can, and occasionally does, authorize law directly. It does not make the absurd claim that all authority for all law takes the form of direct acceptance. On the contrary, most laws are directly authorized by other laws. Second, the direct acceptance theory does not make the absurd claims that all people always know all the facts about their legal system, that they always know their true interests perfectly, or that they always act courageously —or even prudently— on their true interests. Hence, much acceptance will be ignorant or mistaken. Many of the practices that constitute acceptance —primarily, compliance and non-resistance— can be coerced by explicit violence, intimidation, and ideological control. The normative side of an acceptance theory must develop these points fully. A legal system is not legitimate simply because it is accepted. The quality and voluntariness of the acceptance may be investigated.[Note 54] 165