Paradox of Self-Amendment by Peter Suber There is no contradiction in assuming that such irrevocable limitations exist. They would imply the existence of immutable rules, which are equally difficult to posit in theory and to find in history. If we insist they are there even though we cannot find them, then no legal power is omnipotent. For even one immutable rule forecloses the possibility of omnipotence, unless we redefine omnipotence. That is a logically permissible solution. If we think immutable rules are not to be found, or if we suppose for the purposes of inquiry that they are not to be found, then we thereby posit at least one omnipotent legal power. For the absence of immutable rules implies that any legal changes can be made, perhaps by a composite of powers working together. If we deny immutability and acknowledge omnipotence, then we have clearly lost the right to reject the assumption of omnipotence —as we reject the assumption of the Barber's existence— when the paradox of omnipotence shows a contradiction in it. So we must apparently choose between the universal absence of legal omnipotence and the permissible presence of legal contradiction. In general I will take the latter path, even though it implies that the paradox of self-amendment is more "Liar-like" than "Barber-like". Notes 1. On the difficulty of deciding when the new and old rules of change are "inconsistent" see Section 12.C. 2. See Appendix 3 in which a game is presented in which changing the rules is a move. Also see Sections 4 and 13 for some of the logical problems involved in developing such rules. 3. See Section 1, note 17. Ross's argument is summarized in Section 5. 4. H.L.A. Hart, The Concept of Law, Oxford University Press, 1961. Subsequent references to this work in this section will be kept in the text in parentheses. In a later essay Hart explicitly faced the problem of self-amendment and replied to Ross. See Hart, "Self-Referring Laws," Festskrift Tillägnad Karl Olivecrona, Stockholm: Kungl. Boktryckeriet, P.A. Norstedt & Söner, 1964, pp. 307-16. I will argue that Hart's explicit response to Ross in this essay is less adequate than one that can be wrought from the doctrines addressing other questions in The Concept of Law. The virtues of the approach of his book are set out in Section 7, and the defects of the approach of his essay are set out in Section 10. In his essay Hart knew Ross's paradox only through Ross's less complete exposition in On Law and Justice, London, 1958, pp. 80-84. In Ross's full exposition, "On Self-Reference and a Puzzle in Constitutional Law," Mind, 78 (1969) 1-24, he shows familiarity with Hart's later essay (at p. 10.n.1). Hence, Ross's best exposition knew both Hart's book and essay, while neither of Hart's works knew Ross's best exposition. Hart reprinted his essay, "Self-Referring Laws," in his collection, Essays in Jurisprudence and Philosophy, Oxford University Press, 1983, pp. 170-178, but does not revise it in light of Ross's fuller essay except to cite it as critical of his own. 5. The constitution of Italy lacks an AC but Italian jurists conclude that it is tacitly understood that amendment may be made either by the ordinary legislative method, or by the same power by which the constitution was originally adopted. Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, p. 39. For the resolution of similar difficulties in the early American state constitutions that lacked ACs see In Re Opinion to the Governor, 55 R.I. 56, 178 A. 433, 449-51 (1935), and Walter Farleigh Dodd, The Revision and Amendment of State Constitutions, Johns Hopkins University Press, 1910, pp. 44-45. 6. This qualification is intended to avoid (1) an implied assertion that all legal systems have hierarchies of rules, and (2) an Austin-like inference of the necessary existence of an unlimited and illimitable power or sovereign in every legal system. I do not mean to deny Austin's inference, but I do not, without inquiry, want to endorse his position by my language. For my purposes there may well be in every legal system a rule or power which is not limited by any other power and which limits all others; but I need not take the matter out of the sphere of empirical investigation. See Sections 8 and 9. 7. For example, the AC may change constitutional rules directly, and statutory rules indirectly by changing the standards by which we define permissible statutes. 8. The definition of supremacy used here may imply that a supreme or constitutional rule of change must also be exclusive or the only rule that can change the constitution. The complexity simplified by this usage is discussed in Section 12.A. 9. In Part Two I will examine methods of constitutional amendment that do not use the AC. Each may conceivably amend the AC and thereby prevent the absolute immutability of the AC even if strict self-amendment is not allowed. Because all these methods are either surreptitious, unofficial, de facto rather than legal de jure, or ill-defined in scope or operation, they show how the informality of actual legal systems can save us from logical monsters and political follies. However, in Part One I will assume that (supreme) ACs are lawfully mutable only by self-amendment, if only to tighten the dilemma. 10. The permanent need for change and openness to change was well expressed by Robert W. Goedecke in his Change and the Law, Florida State University Press, 1969, at p. 212: [T]he dominance of reason in the rule of law does not mean the sterile maintenance of a mechanical jurisprudence...but rather the ability to change the bases of the law to allow for continued practical determination in new circumstances and, at the same time, allow for continued argument about these bases... [Moreover, we must allow dissenters to persuade us, and permit] the previous dissenters [to] become the new majority....Change is necessary, therefore, to have the rule of law. 19