Paradox of Self-Amendment by Peter Suber indifferent or shaken, and where the content of law is unclear or vacillating. In the expansive range of ordinary cases the provisions and social support of present law reinforce the grip of present law and assure us that the wilder contingencies remain mere theoretical possibilities. A word on the ambiguity of "contingency" may be in order. I have been speaking of contingent absurdities; but of course even the most ordinary legal enactments and decisions are also contingent. The difference is that the former are not authorized by the existing rules, while the latter are. In the former case the alegal source of legal authority in social acceptance overrules or amends the existing rules, and in the latter case this is not necessary. So while it is "possible" that the law will be obeyed, and "possible" that it will be violated in a way that brings curing acceptance with it, these are two distinct senses of possibility (hence, of contingency). In the phrases "contingent omnipotence" and "contingent immutability" I will use the latter sense. These, then, are an omnipotence and an immutability that are not authorized by existing rules but that are always within the horizon of human, historical possibility, ready to be effected by the same authoritative action and social practice that continually produces law itself. If both the contingent possibility and historical improbability of forbidden amendments have been sufficiently emphasized, some further wrinkles in the direct acceptance theory may be explored. The contingent power of every rule of change to amend every legal rule gives each rule of change a sort of co-supremacy. In one sense they cannot be conceived any longer as hierarchical, but operate as contingent equals, each able when called to amend its "superiors". Here precision is necessary. A hierarchy still exists because a hierarchy is still accepted as existing (or rules that define the hierarchy are accepted). The contingent omnipotence of each rule of change does not eliminate their hierarchical arrangement, but merely recognizes the contingent possibility of its abrogation. So long as the contingent power of an inferior rule to amend or repeal a superior is prevented from actualizing (through court decrees, failure of acceptance, etc.), then hierarchy remains valid and binding. The self-stabilization of law assures us that amendment of superiors by inferiors will be the exception, and the highly improbable exception most of the time. In Section 12.C I outlined a theory of reflexive and irreflexive hierarchies.[Note 36] An irreflexive hierarchy is "straight" in the sense that inferiors never supersede superiors. A reflexive hierarchy displays just such anomalous priorities, normally as exceptions. One way to state the consequence of the direct acceptance theory under discussion is that it makes any hierarchical legal system into a completely reflexive hierarchy. The reflexivity of the hierarchy, partial or complete, is contingent, of course. Each inferior can supersede each superior, but only contingently. Such supersession is not antecedently authorized, but may be validated by contingent future events. This contingent possibility exists in the present, and does not refer to the improbable, contingent future moment when each inferior does supersede each superior. We need not say that the legal system of the United States may become a completely reflexive hierarchy, but that it is one now. The structure of levels, ranks, and priorities obviously does not collapse by recognizing the present contingent completeness of the reflexivity. That structure is shown in its proper modality, not as a categorical or ahistorical network of logical relations, admitting only those exceptional reflexivities that complex systems are heir to, but as a contingent product of human labor, a human instrument consisting of human practices subject to the tides of human events. The system of levels maintains something of its rule-like quality because violation is admittedly not authorized, and the content of the present hierarchical rules admittedly has power to stabilize itself and interpret attempted exceptions as violations. The contingent possibility of complete reflexivity is contingently immutable. It may not be eliminated by any adjustment of the system, except contingently, that is, unless acceptance is contingently never mustered for a reflexive exception to the hierarchy. There are some reflexivities in our present hierarchy —the checks and balances system itself is the most conspicuous example— but complete reflexivity is undoubtedly prohibited in effect by the entire set of rules defining the present hierarchy. This prohibition does not bar complete reflexivity with categorical immutability; even if explicitly self-entrenched, it could aspire only to contingent immutability. In the debate between the legal realists, who emphasized the individual moral preferences and psychological inclinations of judges, and their opponents, who emphasized the general effectiveness of rules, much heat was lost over which end of judicial decision-making, the subjective or objective, deserved more emphasis. I do not deny that law is largely a matter of rules and principles, and that they function as such by constraining judges or by contributing to a milieu in which judges feel constrained to give them effect. The overriding power of acceptance does not substitute a Rousseauvian "general will" for rules and principles. The importance of redefining law to account for the supersession of rules and principles by outcomes authorized only by acceptance, and then after the fact, may distract attention from the routine operation of rules and principles as rules and principles. It may lead one to believe that proponents of such a view must intend to reduce much law to its terms. But I offer no estimate of the frequency of such supersession except to say that it is not the norm. I speak only of its theoretical importance. By positing or recognizing the overriding power of acceptance and the contingent omnipotence of every rule of change, and consequently the contingent, complete reflexivity of legal hierarchies, I do not mean to give these strange birds prominence in the genera of law. One of the most improbable events that is contingently possible is the self-resurrection of an AC long thought dead through self-repeal or revolution. The contingent omnipotence of the AC implies that all limitations on its power are contingently revocable. This applies even to repeal. If an AC is repealed and subsequently cited as authority for an amendment that would revive it, then such self-resurrecting, self-authorizing amendment could be validated by acceptance. 161