Paradox of Self-Amendment by Peter Suber 11. Hart ignores the question of the self-application of secondary rules in both The Concept of Law and "Self-Referring Laws" (see note 4 above), although the latter does address some of the problems of the self-application of a rule of change. In The Concept of Law he does not ignore all kinds of self-application, however. For example, he addresses the problem of sovereign self-limitation at 117, 145f, 215f, and 219; the self-binding force of law (which, unlike Austinian commands, bind their makers) at 42, 48, 57, and 77; self-reference at 116, 145-146, and 146-147; self- embracing omnipotence at 146; judges ruling on, and occasionally creating, their own competency at 148f; and the impossibility of self- interpretation at 123 and 139. When C.F.H. Tapper speaks of the "self-application" of Hartian rules he means only that the people bound by a (primary) rule apply it to themselves, as opposed having it applied to them by a separate class of officials who are not bound by it. C.F.H. Tapper, "Powers and Secondary Rules of Change," in A.W.B. Simpson (ed.), Oxford Essays in Jurisprudence, Second Series, Oxford University Press, 1973, pp. 242-77 at pp. 249, 266. See Hart, op. cit. at 38. 12. The need for tertiary rules in Hart's scheme has been argued by D. Gerber, "Levels of Rules and Hart's Concept of Law," Mind, 81 (1972) 102-05, and rejected by Theodore M. Benditt, "On 'Levels of Rules and Hart's Concept of Law,'" (a reply to Gerber), Mind, 83 (1974) 422-23. Gerber points out that secondary rules of adjudication are changed and, because Hart makes no provision for the application of secondary rules to one another, tertiary rules must be used to change secondary rules. Benditt suggests that legislative rules of adjudication (statutes serving the purposes which Hart attributes to rules of adjudication) may be changed by legislatures by means of new rules on the same level as those being changed (i.e., by new statutes); hence, resort to tertiary rules is unnecessary. Benditt confuses the logical level of rules postulated by Hart with the legal levels of rules illustrated by the hierarchy in which constitutional rules supersede legislative, legislative rules supersede adjudicative, and so on. For Hart, primary and secondary rules may exist at the same legal level (say, at the statutory level); he does not mean that primary rules that are statutes can only be changed by secondary rules that are legally superior to statutes. A new statute may change an old statute in accordance with a rule of recognition which gives new statutes priority over any conflicting pre-existent statutes (see Section 16). The power of one statute to amend another indicates a logical superiority that Hart captures in the term "secondary rule". A secondary rule of adjudication, following Gerber's example, may be changed only by rules of a higher logical order; rules of a higher legal order are not necessary. Neither Gerber nor Benditt examined the problems of permitting self-application, and neither passed beyond exegesis of Hart to face the dilemma of circularity and infinite regress. Hart says his primary and secondary rules exist on different "levels" at 92, 94, and 108. 13. The position that legal rules are authorized or validated only by other legal rules, which is central to a formalist model of law, implies either an infinite regress, a self-validating rule, or an exceptional rule that is authorized, say, by consent or acceptance. No formalist has chosen the infinite regress, and most have ignored the dilemma. Hans Kelsen asserts that all legal norms are coercive in that they provide sanctions for departures and violations. A judge applies the coercive rule against burglary to a convicted burglar; the judge does so because she is constrained by a coercive rule to decide burglary cases under burglary rules. The coercive rule against burglary is applied by a judge under a coercive rule about adjudication. Do we need a higher coercive rule to ensure that the coercive rule about adjudication is applied? It might appear that we need coercive rules in an infinite regress in order to make each lower rule fully coercive and enforceable. But for Kelsen this series is not infinite because a rule is authoritative merely by providing a sanction and need not be authorized by a higher coercive rule. Hans Kelsen, General Theory of Law and the State, Russell and Russell, 1961, "The Never-Ending Series of Sanctions," pp. 28-29. 14. Ronald Dworkin, Taking Rights Seriously, Harvard University Press, 1977, at p. 44: If "we tried actually to list all the principles in force we would fail. They are controversial...they are numberless, and they shift and change so fast that the start of our list would be obsolete before we reached the middle." See also pp. 25, 66, 75, 76. 15. Robert Birmingham, "'Into the Swamp': More on Rules," Archiv für Rechts- und Sozialphilosophie, 64 (1978) 49-61. Birmingham does not rely on Dworkin, but uses an original argument that legal rules are paths from a set of facts to a holding, and therefore are as numberless as distinct cases. 16. Kelsen, op. cit. at 28-29. 17. Jaakko Hintikka believes this method is theoretically possible for the paradox of legal omnipotence, but "inadvisable" for "practical reasons". Hintikka, "Remarks on a Paradox," Archiv für Rechts- und Sozialphilosophie, 44 (1958) 514-16, at 515. 18. For an excellent discussion of the problem of the individuation of laws, with less emphasis on the question of the cardinality of the set of laws, see Joseph Raz, The Concept of a Legal System, second edition, Oxford University Press, 1980, Chapter IV, "On the Individuation of Laws," pp. 70- 92. 20