Paradox of Self-Amendment by Peter Suber Section 11: Attempts to Dissolve the Paradox: Self-Embracing Omnipotence and Specific Authorization A. The authorization fallacy In one of the first modern accounts of the paradox of omnipotence, J.L. Mackie proposed the following solution as applicable equally to deities and sovereigns.[Note 1] We must distinguish laws governing behavior from laws governing other laws. Mackie calls these first and second order laws; Hart calls them primary and secondary rules. Mackie continues: Correspondingly, we should distinguish two orders of sovereignty, first order sovereignty (sovereignty (1)) which is unlimited in its authority to make first order laws, and second order sovereignty (sovereignty (2)) which is unlimited in its authority to make second order laws. If we say that parliament is sovereign we might mean that any parliament at any time has sovereignty (1), or we might mean that parliament has both sovereignty (1) and (2) at present, but we cannot without contradiction mean both that the present parliament has sovereignty (2) and that every parliament at every time has sovereignty (1), for if the present parliament has sovereignty (2) it may use it to take away the sovereignty (1) of later parliaments. What the paradox shows is that we cannot ascribe to any continuing institution legal sovereignty in any inclusive sense.... [O]mnipotence must in any case be restricted in one way or another. Mackie's distinction between first and second order sovereignty is very similar to Hart's distinction between continuing and self-embracing omnipotence (or sovereignty). In fact, in this passage Mackie has shown a connection that Hart himself failed to draw between Hart's distinction between continuing and self-embracing omnipotence and Hart's distinction between primary and secondary rules. Continuing omnipotence is the unlimited power to make primary rules. It is continuing because primary rules themselves cannot limit the power that makes them; that power continues, therefore, because it cannot diminish itself. Self-embracing omnipotence is the unlimited power to make secondary rules. It is self- embracing because one group of secondary rules (the rules of change) governs the making of rules, and an unlimited power to make rules of change could diminish the power to make them. Mackie is also more explicit than Hart in inferring that the unlimited power to make secondary rules must therefore be self-applicable. Time must be brought into the picture, because an initially self-embracing omnipotent parliament or deity could limit itself immutably in its first act. Continuing omnipotence by its nature preserves that nature over time. Self-embracing omnipotence may by its nature lose its omnipotence and even its self-embracing character. There is nevertheless a difference between Hart's and Mackie's distinctions. While Mackie's first order sovereignty can make no second order rules at all, Hart's continuing omnipotence can make any secondary rules consistent with its continuing character. Similarly Mackie's second order sovereignty can make no first order rules at all, while Hart's self-embracing omnipotence can make any primary rules whatsoever until it limits its power to do so. Another difference between Hart's and Mackie's distinctions is that no being can simultaneously possess both continuing and self- embracing omnipotence, without contradiction, but a being could simultaneously possess first and second order sovereignty. Self-embracing and continuing omnipotence are mutually exclusive because some self-limitations within the power of the former would violate the latter. But first and second order sovereignty are not mutually exclusive. A being could have, at a given moment but not continuously, unlimited power to make both primary and secondary rules. In the next moment the unlimited power to make secondaries could be used to limit itself or the power to make primaries. This is why Mackie believes there are only two consistent distributions of these powers: (1) that the being now has and always will have only first order omnipotence, and (2) that the being now has both first and second order omnipotence, but need not keep either power forever. A third theory is contradictory: (3) that the being presently has second order omnipotence and continuously has first order omnipotence. Mackie and Hart use their distinctions as if they could solve or dissolve the paradox of omnipotence.[Note 2] If "omnipotence" (they would say) is equivocally thought to embrace both species (either both first and second order omnipotence, or both continuing and self-embracing omnipotence), then and only then could we speak of an omnipotent entity limiting itself as a contradiction or paradox. If we keep the two species separate, then we must recognize that an omnipotent being can either limit itself freely and without contradiction, because its power it second order or self-embracing, or that it cannot limit itself at all, because its power is first order or continuing. Is this solution adequate? It has strong intuitive appeal because both Hart's and Mackie's distinctions are distinctions with a difference that help us classify slippery phenomena; both expose an equivocation on "omnipotence" common to many descriptions of sovereigns and deities, and even to many statements of the paradox of omnipotence; and both show the sense in which self-limitation is and is not self-contradictory, thereby dispelling a cloud of confusion that all too frequently hovers over the paradox. But I believe the solution is inadequate nevertheless. Not only does it fail to dissolve the paradox, but the very idea of self-embracing omnipotence is inadmissible for both the inference and acceptance models of legal change. First we must bear in mind that the acceptance and procedural models of legal change eliminate, or more precisely, ignore and excuse the paradox of self-amendment. It is only under the inference model or formal logic generally that attempted dissolutions of the paradox are sought, for example by separating the new and old AC's temporally, or by distinguishing the continuing from the self-embracing senses in which they might be omnipotent. Hence, the proposed Hart-Mackie solutions will be tested under the inference model, which is how a logician would test them, free 82