Paradox of Self-Amendment by Peter Suber The acceptance model holds that the ultimate rule of recognition is authorized by the acceptance and usage of the people and officials of the system. My exposition of the acceptance model is derived from the work of H.L.A. Hart. For many commentators on Hart, acceptance authorizes only one master rule, which Hart calls the "rule of recognition", which in turn authorizes every other rule of the system. For these commentators the relationship between the rule of recognition and the other rules of the system is strongly hierarchical and formal; if it weren't for the ultimate role of acceptance, this might well be called an inference model. I do not read Hart this way. In particular I read him as asserting that acceptance can operate on particular rules and rulings directly, without being logically or legally funneled through the rule of recognition. However, to avoid purely exegetical squabbles I am happy to call my view a "modified acceptance theory". The key modification for my purposes is that some rules other than the ultimate rule of recognition are authorized directly by acceptance, and that in principle acceptance can always overrule the rule of recognition to invalidate what the rule authorized or to validate what it did not authorize. The modified theory may be made tidier if the overruling of the rule of recognition is considered ipso facto to amend it. That way the rule of recognition preserves its role as universal arbiter (but not, for Hart, self-arbiter). I have no objection to such a move, provided it does not tidy things beyond recognition, and lead to the denial of the power and legitimacy of acceptance as an alegal source of legal authority to interfere at any time for or against any rule. Now that the modification is clear, I'd like to call the position the "direct" acceptance theory. The name of the position emphasizes, not that I differ from some other readers of Hart, but that acceptance works directly on all fronts of a legal system at once, not indirectly through one master rule, and that its authorizing effect arises from social practice rather than inferentially trickling down from the pinnacle of a pyramid of rules. The direct acceptance theory does not deny that there is a hierarchy of rules in which superiors authorize inferiors; it only insists that this is contingent on what is accepted, not necessary for legality as such. It may be that most rules most of the time are authorized by other, higher rules, and that acceptance only rarely "intervenes" to do its work directly. The direct acceptance theory requires only that we admit that this can happen in principle —namely, when it is accepted as happening. The two solutions provided by the direct acceptance theory are as follows. First, self-amendment may be accepted as valid despite the contradiction inherent in it, which may be conceded to exist. If the contradiction can really be dissolved, we need not do so; if it cannot, we need not resort to legal fictions that allow us to act as if it were dissolved. This is possible because acceptance is not bound by any formal logic. If the people and officials in the appropriately complex sense accept self-amendment, despite its contradiction, then their acceptance validates it. The second solution is that the new AC may derive its authority directly from acceptance (or from a rule of recognition amended by acceptance), rather from the old AC, even if the procedures of the old AC were used to propose and ratify the new one. By shifting the authority for the new AC from the old one to direct acceptance, we deny that real self-amendment has occurred. If there is a contradiction in strict self-amendment, this method bypasses it. If we assume that Hart's rule of recognition would not recognize a contradictory procedure, then both these solutions require the modified or direct, as opposed to the "inferential" acceptance theory. The first method allows genuine self-amendment to occur, and disregards or forgives any contradiction in the process. The second holds in effect that the appearance of self-amendment is illusory, and that while the procedures of the old AC may have been followed, the authority of the new AC derives from another source. The first solution works as well with any model of law that can explain legal tolerance for contradiction, such as the procedural model, which I mentioned, and many others that I have not discussed, such as an ideological model that identifies valid law by its content only and never by its form; theological and militaristic models that replace social acceptance with the will of a deity or junta; or a drunken judge model that exonerates all official error and allows it to live the normal life of law —which is not logic but experience. The second solution works as well with any posited source of authority for the new AC other than the old AC. Ross's tacit, transcendent rule is in this category, as is (for many) a "social contract". Principles in Ronald Dworkin's sense of the term are also candidates for the source of the authority of the new AC; such principles might pertain to popular sovereignty, justice across generations, or deference to the action of a constitutional convention. The first solution not only forgives the contradiction that Ross found in the inference modeling self-amendment, but also the absurdities (if that is what they are) in transtemporal validation. In strict self-amendment when the new AC is authorized by the old AC, the authority for the new clause is either repealed by the act of amendment, requiring transtemporal validation, or it persists despite its replacement, like the grin of the Cheshire cat. Nevertheless, all these difficulties are merely theoretical; lawmakers may heed them or not, as they wish. The second solution can be made more venerable, if not more plausible, by putting it in more classical terms. Just as a contract's equivalent of an AC may be amended by the parties without paradox, because the validity of the new clause derives (on one reading) from their agreement, not from the old clause, so the constitutional AC might be changed if the amendment process were interpreted as the act of parties to a contract. The acceptance theory, in fact, is a variant of a classical consent or contract theory of legality. It captures the sense in which the decisions of the people are superior to all law, by their capacity to change and supersede all law, while escaping the less plausible, historical or hypothetical presuppositions of an actual contract theory. The acceptance theory locates legal authority not in a contract but in the less explicit, less rule-like, less reciprocal, more ambiguous, more mutable, and more responsive "instrument" of social practice.[Note 13] 153