Paradox of Self-Amendment by Peter Suber In law we may freely and fictitiously suppose that the premises survive self-repeal only in the minimal sense needed to continue authorizing their successors without transtemporal validation. Or we may fictitiously suppose that the continuing validity of the premises is unnecessary to the continuing validity of the conclusion. Or we may fictitiously separate the steps of an inference, and start with the assertion of all premises and end with the assertion of only those premises consistent with the conclusion. But the insistence that legal logic shall be identical with formal logic precludes the use of these saving devices. Hence, whatever the attraction of these or other stratagems, they cannot be used by Ross's inference model, and therefore cannot dissolve the paradox of self-amendment for that model of legal change. Ross's analysis of self-amendment is the correct logical analysis (but for, perhaps, the fulfillment of the promise of temporally indexed deontic logic). The proposed solutions, even those that dissolve the paradox, invariably introduce a legal, extra-logical element. If Ross is correct on the logic of the problem, and absurd on the law, then that is an argument to look for another, non-formalist, model of legal change. Notes 1. See the entry for Georgia in Appendix 2 for a possible example of overlapping periods of validity. Several amendments to the Georgia constitution of 1945 were ratified at the same election that established the entirely new constitution of 1968. The amendments were incorporated into the new constitution. This meant that the 1945 AC applied to the 1968 constitution, when the 1968 constitution contained a new AC that was presumably valid from the date of the election and that (otherwise) displaced the 1945 AC. See the entries for North Carolina and New Mexico for similar cases. 2. Alf Ross, "On Self-Reference and a Puzzle in Constitutional Law," Mind, 78 (1969) 1-24, at 20. 3. See e.g. L. Thorne McCarty, "Permissions and Obligations: An Informal Introduction," forthcoming, North-Holland. 4. See e.g. Arthur Prior, Past, Present, and Future, Oxford University Press, 1967, 1978; Nicholas Rescher and Alasdair Urquhart, Temporal Logic, Springer-Verlag, 1971. 5. Ross, op. cit. at 20-21. 6. Joan Safran Ganz, Rules: A Systematic Study, The Hague: Mouton, 1971, at p. 5. 7. See entry under Rhode Island in Appendix 2, and Luther v. Borden, 48 U.S. 1 (1849). 8. For example, if a court's jurisdiction in a case is based only on the supposed domicile of the defendant, and if the court rules that the defendant is not in fact domiciled in the jurisdiction, then the ruling subverts its own jurisdictional basis and validity, but still stands. To one who believes the holding is self-subverting, J.D.I. Hughes replies that no one can believe in the self-subverting effect without presupposing that the defendant is not domiciled in the jurisdiction, which is to presuppose or acknowledge the validity of the holding. J.D.I. Hughes, "Judicial Method and the Problem in Ogden v. Ogden," Law Quarterly Review, 64 (1948) 217-26, at 226. Another example occurs in ex parte annulments. Because annulments adjudicate the rights of both husband and wife, both should be in court. But a fiction has grown up that marriage is a thing (res) that travels with each spouse. By virtue of this fiction a court may have in rem jurisdiction over an ex parte annulment (one at which only one spouse is present). But because annulments declare that the marriage was void ab initio (from the beginning), the decree removes its own jurisdictional basis, but nevertheless remains valid. See Robert H. Gerdes, "Conflict of Laws: Jurisdiction to Annul a Marriage," California Law Review, 16 (1927) 38-44, at 40; and Herbert F. Goodrich, "Jurisdiction to Annul a Marriage," Harvard Law Review, 32 (1918) 806-24, at 810-11, 814-15. 9. Congressional committees may only investigate areas on which they may legislate. Congress may not legislate on wholly intra-state commerce. But it may investigate a business to determine whether it is wholly intra-state. U.S. v. DiCarlo, 102 F.Supp. 597 (1951). Such an investigation could well discover that the business is wholly intra-state, which would normally mean that Congress could not have investigated it, even to discover this fact. Either the procedure and its outcome are kept apart, unable to form an explosive mixture, as the procedural model demands, or Congress has a second, independent legal basis for investigations. There is no evidence for the latter view. 10. The neatest example is the ancient Greek case of Protagoras v. Euathlus, in which Euathlus asked Protagoras for lessons in argumentation —the Greek education of a lawyer— provided that he could postpone payment until he had won his first legal case. Progatoras agreed. After the lessons were complete and before Euathlus took a case, Protagoras sued for payment. Protagoras argued that he should be paid whether he wins or loses, for if he wins, Euathlus must pay by the judgment of the court, and if he loses, Euathlus must pay under the contract. Euathlus learned his lessons well and replied that he need not pay whether he wins or loses, for if he wins, he need not pay by the judgment of the court, and if he loses, he need not pay under the contract. The court of Areopagus in Athens was said to have been so puzzled that it adjourned for 100 years. The only American case that has cited Protagoras v. Euathlus, according to Lexis (a computer search service) is State v. Jones, 80 Ohio App. 269 (1946). Jones is a fascinating example of a jury verdict that implies its own negation. For the story of Jones, and more on Protagoras v. Euathlus, see Section 20. 11. H.L.A. Hart, "Self-Referring Laws," Festskrift Tillägnad Karl Olivecrona, Stockholm: Kungl. Boktryckeriet, P.A. Norstedt & Söner, 1964, pp. 307-16, passim, but esp. 312-15. 80