Paradox of Self-Amendment by Peter Suber Section 4: The Denial of Self-Application A. Four ways to avoid self-amendment Let us explore the horn of the dilemma that denies that the secondary rules of change are self-applicable. If we concede that at least some actual secondary rules of change are mutable by legal procedures, then it seems that we must choose among four possible options. 1. Secondary rules affect only primary rules, and tertiary rules do not exist. This is Hart's unsupplemented view,[Note 1] and it clearly fails to face the problem or explain the phenomenon of the lawful mutability of the rules of change. It makes self-amendment impermissible because it is ultra vires or beyond the authority of valid law, not impermissible because it is a contradiction or paradox. 2. Secondary rules may affect other secondary rules, but not themselves. A given subset of all the secondary rules of change may affect others not in that subset. For example, rules of change could affect rules of recognition and adjudication without forcing us up to the tertiary level. Within the sphere of rules of change, a constitutional rule of change could affect a legislative rule of change, for example, without forcing us up to the tertiary level. This requires us to separate the legal and logical hierarchies, and allow many legal levels to exist at the same logical level. This is clearly a coherent theory, and Hart says nothing to exclude it.[Note 2] The problem of self- amendment, however, is not fully addressed until we ask how legal change may occur within the same, especially within the supreme, legal level. How can constitutional rules of change be changed without self-application or revolution? Suppose an AC has several sections, A, B, and C, each laying out a method of amendment, e.g. by ratification by three-fourths of the states, by convention, and by popular referendum. Then rule A could be used to amend B and C; rule B could be used to amend A and C, and rule C could be used to amend A and B. We may call this the "see-saw" method of amendment (explored more fully in Section 13). But it is possible that the individual rules of change at a given legal level will not suffice to amend. Rule A may govern part of the amendment procedure, rule B another part, and C another part, such that no single rule could authorize any change. For example, rule A could regulate methods of proposal, rule B could lay out the methods of ratification, and rule C could specify the official who certifies that ratification has occurred. Under these assumptions change could occur either through the entire set only, or through some subset. (i) If all the rules in the set are necessary to change any member, then none could be changed without self-application or the use of tertiaries. However, change through addition could still occur. The entire set a given time could permit the enactment of a new rule of change, even at the same level as the old. The addition of a new rule will necessarily allow a subset, namely, the original set, to suffice to amend. The addition of many new rules will allow more than one subset to suffice to amend, which leads to the next alternative. (ii) If a subset may suffice to change rules not in the subset, and especially if more than one subset may suffice, then a subset including rules A and B but not C could authorize the amendment or repeal of rule C. Again, the entire set at a given time could permit the enactment of a new rule of change. The set of A and B could enact C; then the set of A and new-C could amend B; then the set of new-B and new-C could amend A, and so on. Now we face the tantalizing possibility that this could continue until the content of the entire set matched the sovereign's desire, or that any content whatsoever could be attained from every initial set. If so, then this theory could accommodate all possible changes of rules of change without resort to self-application or the postulate of immutable rules (see Section 13). But such a see-saw of legislation or amendment does not reflect the actual practice of any sovereign, and hence has little power to explain, even if it could permit, the lawful change of existing rules of change. If certain "key" secondary rules of change were enacted in duplicate, then some of the problems with the see-saw method could be solved. The rule to be changed could always be found outside a subset containing rules sufficient to amend it, for that subset could contain "copies" of every rule of change in the system. However, if a duplicated rule were the one to be changed, and if duplication were needed to permit its amendment (it could be changed only with the assistance of its own "copy"), then at least one copy would remain unchanged after any act of amendment or repeal. This would not frustrate the purpose of amendment so much as it would that of repeal. But even in case of ordinary amendment, the duplication of rules would make it difficult or impossible to change all the tokens of the type, and to avoid the apparent paradox of a new rule denying (at least one copy of) a valid and binding rule in the process of coming into being. Nor of course can duplication, any more than the see- saw, explain how actual legal systems structure the change of their rules of change. It is not from ignorance of logical nicety that legislators do not enact rules in duplicate. 1. The third method for amending rules of change without self-application may be called the "theory of types" method.[Note 3] The initial set of secondary rules of change, or the entire set at a given time, could be identified (say) by numbers in the 100s. They may be used to enact, alter, and repeal secondaries in the 200s and above; those in the 200s may only affect those in the 300s and above, and so on. No rule of change may affect rules within its own "century" of numbers (on its own level), or with any lower number (at a higher level). This theory leaves the initial set immutable, but shows how all other secondary rules may be changed without self-application. The immutable set in the 100s might contain only one member, to mitigate the offense of immutability. However, to make it empty would not eliminate 21