Paradox of Self-Amendment by Peter Suber Moreover, my quarrel with Ross's a priori prejudices about law do not reach the utility or universal application of formal logics. I object only to the view that formal models of law are prior to law in the sense that deviating legal practices can be branded unlawful. Other claims on behalf of the universal application of formal logics are both true and harmless. For example, I think it trivially true to say that law (like any reality) is susceptible to formal representations or abridgments whose varying degrees of accuracy and completeness make them useful for various purposes. Like polygons inscribed in a circle, whose ragged perimeters approach the continuous curvature of the circle as the number of their sides increases, formal models of realities may be accurate to an arbitrary degree, and may perhaps (outside human history) even reach the limiting case of perfect accuracy. But for us formal models are created precisely to be simplifications that are accurate only for a few salient points. To assume that reality is polygonal because one's model is elegant or intelligible is a natural, but comical fallacy. The paradox of legal self-amendment is just one variation of the broader paradox of omnipotence: how can a power supposed to be omnipotent irrevocably limit itself? The paradox of omnipotence is usually applied to deities, but it can also be applied to omnipotent legal powers, such as the power to amend a constitution. The U.S. federal amending power can change every rule in the American legal system, with the arguable exception of itself. (It has probably never been used to amend itself, depending on what we count as amendment, but more than one defeated proposal would have required strict self-amendment; see Appendix 1.) In that sense it is legally omnipotent within the American system and its use to limit the amending power irrevocably is logically equivalent to the problem of an omnipotent deity making a stone it could not lift or irrevocably assuming a mortal form. Because the paradox of self-amendment does not arise in strong forms for changes that are revocable, it raises the question what an irrevocable legal enactment could be. Hence the essay also explores the important question of democratic theory whether any legal rules can be strictly immutable or beyond history. Several jurisdictions within the United States and the former colonies of the British Empire have tried to safeguard democracy or some vision of fair procedure by rules that are self-entrenched. A rule is self-entrenched when it is made immutable to legal change by a declaration within the rule itself that says, in effect, "this rule may not be changed". My solution to the paradox of self-amendment shows why such rules are mutable anyway, or why their change is typically approved by courts. It also explains our sense that truly immutable rules would be undemocratic constraints on liberty, even if their content proposed to protect democratic institutions. I argue that self-entrenchment fails, not because it is an undemocratic means to a (contingently) democratic end, but because the nature of law cannot abide it. But I also argue that the nature of law is not independent of the values of the people who make, respect, and disrespect law. If legal rules that authorize change can be used to change themselves, then we have paradox and contradiction; but if they cannot be used to change themselves (and if there is no higher rule that could authorize their change), then we have immutable rules. Paradox and immutability should create an uncomfortable dilemma for jurists and citizens in western legal systems. It appears that we must give up either a central element of legal rationality or a central element of democratic theory. I argue both descriptively and normatively that law can tolerate paradox but cannot tolerate immutability. Accepting this conclusion does not compromise a properly nuanced vision of legal rationality, although it does undermine the simplistic vision, sometimes conveyed (if not taught) in law schools, that law is a formal system cursed with content, the civil correlate of mathematics. There is an urgent practical problem behind self-amendment as well. Central to many theories of democracy is the view that law is legitimate only when endorsed by the consent of the governed. If this is not to be a hollow slogan, we must have some idea of where to look for the consent, or dissent, of the people to their form of government. One of the most important and indicative manifestations of consent is the people's willingness to use the mechanisms of legal change, especially the supreme power of constitutional amendment. Non-use of the power might reveal a certain contentment with the unamended constitution, and use of it might reveal a certain contentment with the established channels of change and the current form of the constitution. But clearly the inference from use and non-use of the amendment power to consent is only valid if certain conditions are met. For an onerous or unfair procedure could thwart amendment long after desire for change became widespread and intense. An amending procedure that was undemanding for a privileged class might result in frequent use that did not reflect the desires of the larger public. Hence, use and non-use of the amending power will not really indicate consent unless the procedure is fair and neither too difficult nor too easy. But to change the fairness and difficulty of the amending procedure are virtually the only reasons to amend the amendment clause. Hence, self- amendment will almost always affect our ability to assess the people's consent to be governed by their constitution and the people's power to alter legal conditions to meet their consent. Therefore, the permissibility of self-amendment —the chief topic of this essay— is a vital question for democratic theory for two independent reasons. It determines whether there shall be strictly immutable rules in the system, and it affects the evidentiary value of "working within the system" as a manifestation of consent to be governed by that system. Hence, it determines the extent of the people's power to make law and the fairness of holding them bound to the laws already made. Finally, the demonstration that self-amendment is lawful in the Anglo-American legal tradition disproves a common theory of legal change: the theory that all valid change of law must be authorized by prior, higher legal rules. (I will call this the formalist or inference model.) Aside from denying the possibility of what is actual (namely, self-amendment), the formalist theory has other absurd consequences. It implies that no new legal system could get started. None could break off from another lawfully, and all that broke off unlawfully would be eternally barred from becoming lawful themselves. Any regime to be called lawful must have an infinite genealogy. Because we want to say that there are some lawful regimes, we must be able to explain how they could get started without at the same time making them mere creatures of prior regimes in an iv