Paradox of Self-Amendment by Peter Suber Section 10: Attempts to Dissolve the Paradox: Time A. Ross's answer to the time-based objection Most people's first response to the paradox of self-amendment is that, even under the inference model, it is spurious and need not arise. One such avenue of attack is an objection based on time. If the validity and supremacy of the old AC exist under a time limit, or if the new and old ACs are never in effect at the same time, then perhaps self-amendment will be permissible under the inference model. Perhaps the old and new ACs are not inconsistent if they never overlap in time, especially if each says that they do not overlap. If the validity of the old AC exists under a time limit, then the limit may be pre-determined, as by a "sunset clause" which brings about the expiration of the whole section at a given time (see Section 14), or it may float and become fixed whenever the AC is amended. Most attempts to solve or dissolve the paradox depend on the fact (if it is a fact) that the old and new ACs were never simultaneously valid. No such objection, however, suffices to validate self-amendment under the inference model, as we will see. First, it is clear that there is nothing problematic in supposing that an AC's period of validity does not overlap that of its successor. On the contrary, the alternative is difficult to conceive. If an AC and an amended form of itself meant to be its successor did overlap in time, then for the length of the overlap we could not say that the original AC had been amended. The new AC could stipulate that it took effect upon its adoption and that its predecessor would be repealed five minutes later. Even if there is no intolerable contradiction in this idea, it would be legally pointless; during those five minutes two contradictory AC's would enjoy equal validity. Could we use either one we liked, or both, or neither?[Note 1] Similarly, it is difficult to conceive a gap between the expiration of the old AC and the effective date of the new AC. If there were such a gap, then the usual reasons for the expiration of the old AC would be lacking. Again, the new AC could stipulate that it would take effect upon its adoption and five minutes after the expiration of its predecessor. But it seems that it could only declare the expiration of the prior AC if it were itself already valid; its predecessor would have to be valid at least up to the moment that its successor became valid. So let us agree that there is nothing problematic about the old AC becoming invalid and the new AC becoming valid at the same dimensionless point of time, with neither gap nor overlap. The core of the time-based objection to Ross's paradox of self-amendment is that, even if there is some kind of contradiction between the new and old AC's, the temporal separation of their periods of validity eliminates it, or tames it, just as two countries on a map can be drawn in the same color if they meet at only one point. Ross meets this objection directly by distinguishing legal and logical contradiction. Legal contradiction exists between inconsistent laws valid at the same time. If one is repealed or invalid, then the legal contradiction disappears. Logical contradiction is an inconsistency between propositions taken more abstractly. If they contradict one another by their form or content, regardless of the accidents of human history that give some propositions legal effect, then they are logically inconsistent. If two propositions of law contain a logical contradiction, and if they are valid at the same time, then repealing one of them will eliminate the legal contradiction but not the logical contradiction between them. Ross's first answer to the objection is that temporal separation can only cure legal contradiction, not logical contradiction. It can prevent inconsistent rules (the new and old AC's) from being valid at the same time; but it cannot remove their inconsistency in the logical sense. Indeed, the desire to remove the legal contradiction between them presupposes an acknowledgment of their logical contradiction. Yet it is the logical contradiction that invalidates the inference that models the act of amendment. And if the deduction corresponding to the amendment is logically invalid, then the amendment is legally invalid. (For the possibility that a time-based response could satisfy a formal logic even if it did not satisfy Ross's inference model, see 10.B below.) The attempt to dissolve the paradox by temporal separation of the old and new ACs misconceives the essence of the inference model. The validity of deductive inference is the criterion of the legal validity of amendments, and the validity of deductive inferences is not a temporal phenomenon. The premises and conclusions are examined for consistency without regard to time, because any inconsistency between them will eternally lie between them. If the premises pass out of effect as the conclusion is established, that legal adjustment does not bear on their logical relations. This is not only the approach of Ross and the inference model, but also the approach of logicians who must try to address the issue with logical tools only, without the benefit of a legal or divine capacity to tolerate contradiction. Ross puts it this way: the time-based objection[Note 2] confounds legal with logical contradiction. There is no contradiction in law, because [the new AC] supersedes [the old AC]. But why does [the new AC] supersede [the old AC]? Precisely because [the new AC] logically, that is corresponding to its content, contradicts [the old AC]. This follows from the well-known lex posterior principle according to which in case of conflict between two equivalent norms (i.e., norms at the same level in the hierarchy) the later precedes the earlier one. If we grant Ross the distinction between legal and logical contradiction, then he is certainly right to say that temporal separation can avoid the former but not the latter. (One sense in which the logical contradiction can be removed is discussed in 10.B below.) But for those who reject the distinction, Ross has another reply to the time-based objection. If a rule of law is authorized by another rule of law, then usually the authorizing rule must be legally valid in order to lend its authority to the authorized rule. For example, if a court is defined by statute and the statute is repealed, the court will usually be dissolved at the same time. If a rule of law remains authorized even after its authority 74