Paradox of Self-Amendment by Peter Suber "modified", the modified (direct) acceptance theory is a very powerful explanation of why we cannot and should not bind our successors irrevocably or with categorically immutable rules. The descriptive and normative sides of the theory work in harmony here. Categorically irrevocable or immutable rules would increase the freedom and power of their makers at the expense of their makers' descendants. Maximum freedom across generations consistent with equal freedom requires the impossibility of such rules. But previous theories could not urge this impossibility normatively, or explain it descriptively, without resort to other immutable rules. This goes directly to the merits of the direct acceptance theory. On other fronts, Hart has forcefully argued the merits of acceptance as an explanans of law. But the merits of direct acceptance deserve an extra word. Ronald Dworkin has made three objections to Hart's acceptance theory, all of which are relevant to my modified theory.[Note 37] First, Dworkin objects that some rules of law are clearly valid and binding even though they are not validated by the rule of recognition. They are binding, Dworkin says, merely "because they are accepted as binding by the community." I agree entirely. Dworkin here points to the chief "modification" by which I depart from the usual interpretation of Hart. I may disagree with Dworkin's assessment that Hart himself denies this wrinkle, but that is unimportant here.[Note 38] Dworkin's second objection is that the existence of valid rules authorized directly by acceptance shrinks the scope of the rule of recognition. Again I can agree fully. But I note that agreement is unnecessary if the "overruling" or "supplementation" of the rule of recognition by acceptance is held to amend to the rule of recognition. Dworkin's third objection is directed more to the rule of recognition. If that ultimate rule serves the function that Hart attributes to it and "provides a test for determining social rules of law other than by measuring their acceptance," then it fails, for it collapses into a mere reflection of what people accept. Again I agree. The rule of recognition for Hart is usually not formulated in words but is reflected in the practice of officials in using and ascertaining the law. If it is identical to that congeries of practice,[Note 39] then it provides no such test at all, beyond the test we should use were there no master rule. The master rule becomes...a non-rule of recognition; we might as well say that every primitive society [thought by Hart to lack secondary rules] has a secondary rule of recognition, namely, the rule that whatever is accepted as binding is binding. To this I may say in Hart's defense that the practice of officials is not the whole picture of acceptance. The people make an essential contribution even if, as Hart says, they are often ignorant of the law. But I accede to the thrust of Dworkin's objections, and have even sketched the sense in which I believe that acceptance for Hart operates through a rule that whatever is accepted as law is law (Section 7.B). Dworkin is here objecting that acceptance is not mediated by any rule-like device in authorizing law, which is exactly what the direct acceptance theory asserts. This weighs against the rule of recognition (qua rule), of course, but my own version of the direct acceptance theory does not depend upon a rule of recognition. The social practices that comprise acceptance in the appropriately complex sense may simply be called a rule of recognition. But such a move would be vulnerable to Dworkin's objection that the "rule" would offer no test different from acceptance itself. To that extent it would give us a false sense of the formalism of law. The direct acceptance theory can accommodate what Dworkin calls "principles" more easily than the unmodified theory. The reason is that the direct theory is not committed to the rigid distinction of legal norms from other types —a distinction that is implied by the existence of a rule of recognition. The direct acceptance theory denies that law is a mere system of rules. This observation is necessary to disarm the only criticism of the direct theory I have found made by one who generally supports an acceptance theory of legal validity. Hugh Williamson has argued that law is a system or structure of rules and that acceptance of one rule logically requires acceptance of the whole system.[Note 40] Acceptance cannot cease for one rule without a different system becoming the object of acceptance. Hence, acceptance cannot selectively intervene to establish the validity or invalidity of individual rules. This objection is simply inapplicable to a theory that denies that consistency is paramount in law, or that denies that law is a system of rules, or that denies that acceptance is an "all-or-nothing" phenomenon; I make all three denials.[Note 41] In any case Williamson offers no argument for his unusual views of rules, acceptance, or systematicity except the "ordinary language" of lawyers, a test that seems to rule against his own conclusions. A student of Dworkin's, Gabriel Mosonyi, has extended Dworkin's critique of Hart's theory of acceptance.[Note 42] Mosonyi, like Dworkin, believes the straight acceptance theory is inadequate and offers a few corrective principles and suggestions that, in my terms, favor the direct theory. What I have called "direct acceptance" is very similar to what Mosonyi has called "critical acceptance". Critical acceptance, Mosonyi argues, is the actual stance of most citizens and officials: "they may accept the rule of recognition generally, but reserve the right to reject it in particular cases e.g., where it works injustice."[Note 43] This reserved right to overrule the rule of recognition is just the modification I have drawn (to use the language of the "rule of recognition"). Mosonyi offers independent arguments that primary rules of obligation should be understood to derive their validity, not from a formal test or rule, but directly from social acceptance.[Note 44] This too is consonant with the direct acceptance theory, although I have taken no position on the question of the source of the validity of primary rules. Insofar as the rule of recognition, however, is a mere restatement or formalistic disguise of complex social practices, all that it validates may be considered validated "directly" by acceptance. "Critical acceptance" is a good name for the sense in which the rules validated by acceptance are contingently mutable and always subject to repeal or, more subtly, to violations that are tolerated or even validated as repeals by acceptance. It is more than serendipity, therefore, that the most careful analysis of acceptable violations of binding law has concluded that acceptance is always capable of overruling the formal rules of a system. The analysis, of course, is Mortimer and Sanford Kadish's Discretion to Disobey.[Note 45] 164