Paradox of Self-Amendment by Peter Suber 20. See his illuminating discussion of U.S. v. Cardiff, 344 U.S. 174 (1952) in which a section of the Food, Drug, and Cosmetic Act seemed to give inspectors the right to enter factories without the owner's consent, and to give the owners the right to keep inspectors out by refusing consent. Fuller op. cit. at pp. 67-68. The Supreme Court chose a less "logical" resolution of the problem, but one that better fulfilled legislative purposes and public policy. It also held that the very appearance of inconsistency denied factory owners sufficient notice of what had been criminalized. When two different laws are "inconsistent", Fuller believes that judicial reconciliation stops at a point chosen by policy, for mere logic provides no stopping point short of "the perilous adventure of attempting to remake the entire body of our statutory law into a more coherent whole." Ibid. at p. 69. 21. The best defense of the position that any intent-based interpretation requires appeal to policy or political morality is Ronald Dworkin, "The Forum of Principle," New York Law Review, 56 (1981) 469-518. 22. Murray-Jones, op. cit. at pp. 41-42. 23. Fuller, op. cit. at p. 69. 24. Caracciolo, op. cit. at p. 462, confuses the plurality and discretionary character of legal tests of inconsistency with the proposition that there is no legal test at all, but draws the same conclusion that I do: such a criterion [of inconsistency in law] does not exist, so that we cannot exclude the possibility that two rules may be incompatible for a judge, and may not be for another. While I conclude that the choice among criteria of inconsistency, and the choice whether to allow inconsistent rules simultaneous validity, is a policy question, Caracciolo concludes that such choices "cannot be based on 'law'." Ibid. 25. That is, they are on the same hierarchical level if the change from the old to the new AC was actually authorized by the old AC. Alf Ross believes that only a higher, prior rule can authorize the change of any rule; but even for him self-amendment is ex hypothesi the change of a law in which premises and conclusion lie on the same hierarchical level. This very feature is one of his grounds for claiming that self-amendment is impossible. 26. Hart in "Self-Referring Laws," Festskrift Tillägnad Karl Olivecrona, Stockholm: Kungl. Boktryckeriet, P.A. Norstedt & Söner, 1964, pp. 307-16, at 314, seems to appeal to the authorization fallacy as one of his several arguments that self-amendment is permissible. 27. Hans Kelsen suggests the answer is no in his essay, "Derogation," in Ralph A. Newman (ed.), Essays in Jurisprudence in Honor of Roscoe Pound, Bobbs-Merrill, 1962, pp. 339-55, at 353. Note that a given proposition may be combined with different co-premises to permit the valid derivation of inconsistent conclusions. If rule P is a general rule of change, it may be supplemented for conclusion Q with the premise stating the motion to adopt Q, and for ~ Q with a motion to adopt ~ Q. "All and only humans are mortal" is consistent with "Socrates is mortal" and "Socrates is immortal" depending on whether we supplement the major premise with "Socrates is a human" or with "Socrates is not human". For this reason we say only that the set of premises that justifies Q, if the set is internally consistent, must be inconsistent with ~ Q. 28. No work that I know of treats the American legal system as a reflexive hierarchy. But the checks and balances system is essentially reflexive, and has of course been the subject of innumerable discussions. For some surprising wrinkles in the circle of powers in the U.S. system, see Walter F. Murphy, "Lower Court Checks on Supreme Court Power," American Political Science Review, 53 (1959) 1017-31. For more on reflexive hierarchies see below, Section 21.D. 29. James R. Murtagh, "Procedure for Amending the Constitution and the Reed-Walter Amendment," Pennsylvania Bar Quarterly, 27 (1955) 90- 101, at p. 93.n.4. See also Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, at p. 43. 30. Murtagh, op. cit. The insufficiency of Wisconsin's arguments are anticipated by Walter K. Tuller, "A Convention to Amend the Constitution — Why Needed— How It May Be Obtained," North American Review, 193 (1911) 369-87. 96