The Paradox of Self-Amendment: A Study of Law, Logic, Omnipotence, and Change Peter Suber, Philosophy Department, Earlham College This book was originally published by Peter Lang Publishing, 1990. It is now out of print. Copyright © 1990, Peter Suber. Table of Contents Now searchable. Preface to the Print Edition (34.5k) ¤ Why bother? ¤ Outline ¤ Notes on the text Preface to the Online Edition (4.6k) Part One. The Paradox of Self-Amendment Section 1. Introduction: Logical Paradoxes in Law (61.8k) ¤ Paradoxes that perplex, and paradoxes that prove ¤ "Solving" paradoxes in logic and law ¤ Self-amendment ¤ Logical v. legal approaches to self-amendment ¤ Notes to Section 1 Section 2. Preliminaries: Amendment Clauses (38.1k) ¤ Amendment and revolution, lawful and unlawful change of law ¤ Amendment and democracy ¤ Notes to Section 2 Section 3. The Dilemma (37.4k) ¤ Self-application v. infinite regress ¤ Primary and secondary rules ¤ Is law finite? ¤ The paradox of omnipotence, the barber, and the liar ¤ Notes to Section 3 Section 4. The Denial of Self-Application (18.1k) ¤ Four ways to avoid self-amendment ¤ Weaknesses of these four methods ¤ Notes to Section 4 Section 5. Self-Application (30.8k) ¤ Ross's paradox of self-amendment ¤ Some distinctions ¤ Lawfulness of self-amendment ¤ Self-reference ¤ Notes to Section 5 Section 6. The Inference and Acceptance Models of Legal Change (37.5k) ¤ Weaknesses of the inference model cured by the acceptance model ¤ Ross's solution: the invisible, immutable amendment clause ¤ Solutions from the model of direct acceptance ¤ Notes to Section 6 Section 7. Hart's Theory of Acceptance (40.5k) ¤ Salient points in Hart's text ¤ Hartian acceptance self-applied ¤ Notes to Section 7 Section 8. Omnipotence and Immutability (125.2k) ¤ Omnipotence and immutability are inseparable concepts ¤ Entrenchment, self-entrenchment, disentrenchment ¤ Supposed limitations on the U.S. federal amending power ¤ Notes to Section 8 Section 9. Entrenchment, Self-Entrenchment, and Disentrenchment of the Amendment Clause Itself (108.1k) ¤ Types and distinctions ¤ Reflexivity tangles in New Mexico ¤ Self-disentrenchment of the AC ¤ Entrenchment and time ¤ Self-repeal ¤ Notes to Section 9 Section 10. Attempts to Dissolve the Paradox: Time (55.4k) ¤ Ross's answer to the time-based objection ¤ "Valid until amended", temporal indexing, universal self-entrenchment ¤ The procedural model ¤ Other views ¤ One more try at satisfying the inference model ¤ Notes to Section 10 Section 11. Attempts to Dissolve the Paradox: Self-Embracing Omnipotence and Specific Authorization (22.5k) ¤ The authorization fallacy ¤ Against self-embracing omnipotence ¤ Notes to Section 11 Part Two. Variations on the Theme Section 12. Introduction to Part Two (62.7k) ¤ The exclusivity of the federal AC ¤ Indirect self-amendment ¤ Self-amendment without inconsistency ¤ Self-amendment of a non-supreme rule of change ¤ Notes to Section 12 Section 13. The See-Saw Method (17.2k) Section 14. Amendment by Sunset Clause (33.3k) ¤ Sunset clauses in American constitutions ¤ Self-repealing sunset clauses ¤ Effective-date clauses ¤ Notes to Section 14 Section 15. Amendment by Interpretation (43.2k) ¤ Judicial amendments ¤ Judicial self-amendment ¤ Notes to Section 15 Section 16. Amendment by Implication (48.8k) ¤ The lex posterior principle v. self-entrenchment ¤ Was the adoption of the Tenth Amendment a case of self-amendment? ¤ Was the adoption of the Fourteenth Amendment a case of self-amendment? ¤ The lex posterior principle self-applied ¤ Notes to Section 16 Section 17. Amendment by Treaty (31.0k) ¤ The treaty power v. the amending power ¤ The Bricker amendment ¤ Notes to Section 17 Section 18. Amendment by "Inalienable Right to Alter or Abolish Government" (28.1k) ¤ Amending v. altering or abolishing ¤ The right to alter or abolish government self-applied ¤ Notes to Section 18 Section 19. Amendment by Desuetude (25.6k) ¤ Notes to Section 19 Section 20. Other Selected Paradoxes and Reflexivities in Law (112.6k) ¤ Protagoras v. Euathlus ¤ State v. Jones ¤ Self-referring laws ¤ The liar ¤ Circular liens and liabilities ¤ The bootstrap doctrine ¤ Inferences drawn from the fact of the dispute ¤ Reflexivities of sovereignty ¤ Self-amendment ¤ Permissible disobedience ¤ Contract reflexivities ¤ "More of the same" ¤ Breaking vicious circles ¤ To know before we know ¤ Tax reflexivities ¤ Circular reasoning ¤ Notes to Section 20 Section 21. Conclusions and Explorations (155.9k) ¤ Summary ¤ Acceptance and consistency ¤ Some oddities and implications ¤ A word on the merits of the direct acceptance theory ¤ Self-application ¤ Notes to Section 21 Appendix 1. Attempts to Amend the Federal Amendment Clause (34.4k) ¤ Recent proposals ¤ An historical proposal passed by Congress ¤ Historical proposals not passed by Congress ¤ The Articles of Confederation ¤ Selected suggestions by writers ¤ Notes to Appendix 1 Appendix 2. Self-Amendment of State Amendment Clauses (55.5k) ¤ Summary ¤ Table of States ¤ Notes to Appendix 2 Appendix 3. Nomic: A Game of Self-Amendment (39.1k) ¤ Introduction ¤ How to play Nomic ¤ Initial set of rules ¤ Notes to Appendix 3 Bibliography (112.1k) Index • I omit the index from this HTML edition. Search the online edition of this book. Multiple words are linked by the selected Boolean operator. Word fragments return all completions, e.g. amend returns amend, amends, amended, amending, amendment and so on. Your search string Boolean Case Peter Suber, Department of Philosophy, Earlham College, Richmond, Indiana, 47374, U.S.A. [email protected] © 1990, 1998, Peter Suber. 1 Preface to the Print Edition Peter Suber, Paradox of Self-Amendment Table of Contents • W hy Bother • O utline • N otes on the Text Why bother? Logical paradoxes in the strict sense produce statements like those of the Liar ("This very statement is false") that are false if true, and true if false. They resist rational solution or at least divide logicians for centuries of apparently irreconcilable wrangling. What happens when similar paradoxes arise in law? That is a difficult question, but part of the answer is that paradoxes come and go without much notice and are dealt with without much ado. This fact makes the question important as well as difficult. How law copes with strict paradox sheds light on the nature of legal reasoning and rationality, the nature of legal practicality, and the sense in which law can be reasonable, even "wise", while being illogical in the technical sense. I select one principal paradox —the paradox of self-amendment— and explore its variations in several Anglo-American jurisdictions and contexts, but mostly in American constitutional law. If a constitution has an amendment clause (a provision describing or prescribing how to amend that constitution), then can that clause be used to amend itself? The question may be widened to embrace the self-application of any legal rule that authorizes any legal change. Is self-amendment paradoxical? If so, can it be lawful? If so, can the logic of law be logical? Some legal rules govern the change of other legal rules. But even these "rules of change" (as Hart calls them) are changeable, usually by higher level rules of change. When a rule of change is supreme within its own system (as a constitutional rule of change probably is), then it is changeable, if at all, only under its very own authority. The paradox of self-amendment arises when a rule is used as the authority for its own amendment. It is sharper when the rule of change is supreme, sharper still when it is changed into a form that is inconsistent with its original form, and sharpest of all when the change purports to be irrevocable. Alf Ross has charged that self-amendment in this sense can be reduced to a formal self-contradiction. After considering some obvious and not so obvious objections and subterfuges, I conclude that this is correct. Moreover, Alf Ross and his followers have decided that this contradiction invalidates self-amendment. In one sense this book is an extended meditation on Ross's confidence that what is logically impossible must be legally impermissible. I conclude that this view is factually incorrect and philosophically arrogant. One task that earlier scholars have not undertaken is to show that self-amendment has frequently occurred despite all contradiction and paradox. It is commonplace and, in fact, not 1 2 even controversial in legal circles. By all legal tests of lawfulness, self-amendment in the most illogical sense is lawful. Nor have past explorers of these themes asked what law, legal change, legal reason, and legal rules are such that they can tolerate this kind of contradiction while forbidding many other things in the name of consistency. The principle that what is logically impossible must be legally impossible may be philosophically arrogant and ignorant of legal history, but it is not a simple mistake. It is a new variation on the theme of natural law. Instead of finding that human law depends for its validity on an eternal moral law, this version makes it depend on an eternal logical law. One of the most persistent and persuasive objections to traditional natural law theory applies as well to the new version. If human law can be immoral without ceasing to be law, it seems it can be illogical without ceasing to be law. Law has its own tests of what is law, and those tests validate much that is immoral and illogical. To decide that a transcendent moral or logical test supersedes the legal tests, and can invalidate what is otherwise law and validate or enact what is otherwise utterly tacit, is to transform law into morality or logic and unduly diminish its historical and social dimensions. It is to assert that law reflects human thought and community only at their best and never also at their worst. It is to assert that somehow this human construction has had an immaculate conception, and is never touched by human unreasonableness, historical contingency, and interest. The present work is in part a critique of the new natural law theory that replaces the traditional moral test with a logical one. I conclude that logic does not legislate a priori for law any more than morality does, although of course law remains perpetually open to logical and moral criticism. To know what the laws are in a society, and what is lawful there, we must look only at legal evidence and social phenomena. We need not consult any moral or logical doctrine, even any that happen to be affirmed unanimously, except to the extent that they influence the concrete legal practices of that society. In particular, I conclude that self-amendment may well be a strict self-contradiction, but the evidence of legal history suffices to show its lawfulness even in the face of logical doctrine. I argue that the only alegal source of legal authority is social practice, not normative principles from morality or logic. To philosophers of Alf Ross's persuasion it may appear that I am begging the question. By rejecting the a priori principle that (standard) formal logic is the higher law of law, and undertaking a more empirical investigation of the relations of formal logic and law, I have already erred. I argue, however, on the contrary, that the a priori principle that (standard) formal logic governs law begs the question of the nature of law. Inquiry into legal practice, not presumptions in advance of inquiry, should answer the question. Between these two positions it seems that question begging is mutual and unavoidable. If so, then arguments across the gap of this incommensurability are futile. This suggests that cordial suspension of disbelief is the duty of scholarship, not hasty dismissal. This at least has been my attitude toward Alf Ross. In any case, my lapse from the very common philosophical confidence in the dominion of formal logic is motivated by evidence; it is not just another irrational failure to recognize the sovereignty of formalism that others assume a priori. In short, I invite readers who know more logic than law to attend to the peculiarities of law that fly off like sparks from virtually every case and especially from paradoxes like that of self-amendment. 2 3 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. 3 4 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 infinite series. Some power, be it contract or revolution or some other, must make law ex proprio vigore or from its own strength. Only a theory of permissible self-amendment can explain this fully, and therefore only such a theory can explain legality per se. 4 5 In short, the study eventually reaches foundational moral, legal, political, even theological questions, as well as important issues in logic and epistemology. The detailed study of a paradox —any paradox, I am convinced— will blossom in this way. I say this both to reassure and to warn the reader. At first the paradox looks trivial, perhaps especially to lawyers who are accustomed to dealing with such problems, as noted, without much ado. The detailed exploration of the paradox is not triviality squared. On the other hand, the broader issues of the nature of law and the roles of logic and value in it are not reached soon in the exposition or without a period in purgatory. Law and logic are technical subjects. Necessarily, they must be introduced with appropriate rigor and complexity when the inquiry demands it. Fortunately, this never requires arcana. I have aimed at an audience of educated people who know little or nothing of either law or logic. No special knowledge of these subjects is presupposed, and all that is needed is given in the text. This is an inter-disciplinary inquiry whose results should be brought to workers in law, logic, philosophy, political science, sociology, and history. Readers who happen to know something, or very much, about law or logic must forgive the degree of over-explanation that affects them. No one, I hope, will forgive any degree of under-explanation. One consequence of the need to introduce the logic and law needed for non-experts is a lengthy introduction. Sections 1 and 2 might be skipped by any reader who judges from their titles that they are unnecessary. Each offers reflections considerably beyond a merely factual preparation, but neither is necessary to the development of the paradox, which begins in Section 3. Discussion of the paradox is greatly facilitated if I am allowed to speak of legal rules. However, the paradox itself implicates the question whether and in what sense laws are rule-like. If laws are rule-like in the manner of logical rules, then the requirement of consistency will be absolute and the equation of logical and legal validity will be supported. On the other hand if laws are rule-like in the manner of rules of etiquette or custom, then their partial indeterminacy will prevent any rigid application of a consistency test and, in addition, the acceptance of inconsistent rules may be a genuine part of the phenomenon to be explained rather than explained away. I give myself the license to use the word "rule". But I also alert the reader not to prejudge the question of that rule-like character by my use of words nor to allow me to do so. I have tried not to assume or exaggerate the rule-like character of law in the process of subjecting the paradox of self-amendment to logical analysis. One of my conclusions is that laws lack many of the properties found in the rules of logic, mathematics, and games (see especially Section 21). This conclusion is not subverted by use of the word "rule" to refer to laws, but I would not want the reader to think that this important question was unaddressed or left to be determined by the default of common word usage. Outline 5