Attempts to Dissolve the Paradox: Time
Paradox of Self-Amendment Table of Contents
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took effect upon its adoption and that its predecessor would be repealed five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
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
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 is repealed, then it possesses what J.M.
Finnis called "transtemporal validation". Ross rejects the possibility of
transtemporal validation for reasons central to the inference model: it does not
work in valid deductive inference, so it cannot work in valid legal change. When in
a given inference, a conclusion relies on a certain premise, then if the premise is
denied, the conclusion is no longer proved. The conclusion may be inferred anew
from other premises, of course, but in any given inference the premises that
authorize the conclusion must be affirmed, not denied. So in law, if a rule is
repealed, everything it authorized (that is not authorized by something else) must
cease to be authorized.
So if an act of amendment requires transtemporal validation, then it violates
the inference model. But temporal separation in the case of strict self-amendment
requires transtemporal validation. If the new AC is authorized by the old AC so
that strict self-amendment occurs, and if the old AC is invalidated just as the new
AC is validated, then the new AC is either unauthorized or transtemporally
The only alternative under the inference model is for the new AC to be
validated by something like Ross's tacit, transcendent rule, which remains in effect
as long as we like. But this is to deny that strict self-amendment has occurred
(which is part of Ross's strategy). In strict self-amendment the authority for the
new AC must be the old AC. So if the new AC is not authorized "from the grave"
of the repealed old AC, transtemporally, then it is not authorized at all —for the
In short, temporal separation will not cure strict self-amendment for the
inference model. If we accept the distinction between legal and logical
contradiction, then temporal separation only prevents a legal contradiction. The
logical contradiction survives between the conclusion (new AC) and the premise
(old AC) from which it derives its validity. This suffices to invalidate the inference
that models self-amendment (when the premises are consistent with one another).
On the other hand, if we reject the distinction between legal and logical
contradiction, then temporal separation forces us to appeal to transtemporal
validation for strict self-amendment. This violates the inference model just as much
B. "Valid until amended", temporal indexing, universal self-entrenchment
What if the old AC says that it is valid only until amended or repealed?
Wouldn't that prevent both legal and logical contradiction between the new and old
AC's? The old AC need not assert its exclusive and permanent validity; if it does
not, then it is compatible with its replacement in the new AC.
This proposal is more complicated than it appears. There are at least four
points to make about it. First, it will probably work as advertised, if done with
sufficient care. But the inference model requires more than simple care in
draftsmanship. It requires a model of deductive inference than can take the
proposed nuance into account. So far, temporally indexed deontic logics have only
been sketched;[Note 3] they must be fully fleshed out and
applied to self-amendment. However, the success of other temporal logics in
coping with time-dependent truth values[Note 4]
gives me confidence that this project can be fulfilled.
Second, the natural way to fulfill it would be to make the old and new AC's
logically consistent with each other (by temporal qualification of their claims to
validity), while enforcing their temporal separation. Even if this method succeeds
in avoiding both legal and logical contradiction, it will require transtemporal
validation. Hence, it will satisfy our carefully constructed formal logic without
satisfying the inference model.
Third, there are new paradoxes attaching to "sunset clauses" that declare
time-limits on their own validity. In particular, after they expire, if we want to
claim that they are really invalid, the only obvious legal authority to which we
might appeal for their invalidity is their own statement of a time-limit on their
validity. But they are presumably invalid. If they remain perpetually valid in some
dormant, low-level way, sufficient to tell us authoritatively that they are invalid,
then at the very least they are self-excepting ontological monsters; at worst, they
contradict the time limitations they assert either by becoming wholly invalid or by
remaining partially valid. (These paradoxes will be explored further in Section 14.)
Fourth, despite first impressions, the logical contradiction between the old
and new AC's is not removed simply by rewording the old AC so that it specifically
authorizes its replacement or its self-amendment. (More on this in Section 11.)
Ross says that the old AC is invalidated or repealed by an inconsistent new
AC, adopted under the tacit, transcendent rule. The old AC is repealed by virtue of
the legal rule that favors the most recent rule in conflicts between two rules of the
same hierarchical level (see Section 16). This rule is often called the lex posterior
principle. Ross anticipated the objection that if the old AC incorporated the lex
posterior principle, in effect authorizing its own repeal as its successor is
established, then the old and new ACs would no longer be inconsistent. This he
denies. An AC that incorporated the principle might say,[Note 5]
The rules of the constitution are amendable by process P and only by
this process, until by this process it is decided otherwise.
If such an AC amended itself by changing P for Q, when P and Q were inconsistent
in content, then the inference by which the new AC would have come into being
would still contradict one premise, the old AC, which would still create an
insurmountable invalidity in the inference.
Would the incorporation of the lex posterior principle still fail to dissolve the
paradox if the old AC said it was to expire at time T (a dimensionless point in time),
and if the new AC said it was to take effect at T? The question suggests that some
sophisticated logical move is to be made, requiring a different answer from the
original situation. But that is illusory. To "incorporate the lex posterior principle"
is simply to make it explicit within the new and old ACs that their periods of
effectiveness do not overlap, or that the new one repeals the old one to the extent of
their irreconcilable inconsistency. Clearly, making this rule explicit in the ACs
themselves does not change the fact that they are inconsistent with one another.
Moreover, as before, it even presupposes their inconsistency. If one's criterion of
inconsistency is the prohibition of what was once permitted, or the permission of
what was once prohibited (see Section 12.C), then clearly the new and old ACs
could declare different periods of effectiveness without thereby overcoming their
inconsistency. If they are inconsistent, then the inference that models the adoption
of the new from the old will be invalid, and the formalist model cannot permit it.
The old AC is still being asked to authorize a norm inconsistent with itself.
What Ross calls the incorporation of the lex posterior principle may also be
called the implied limitation on the AC that it is valid only until amended. As noted
in Section 8.C, such a "limitation" does not diminish the amending power in any
way, at least not while the AC is still valid. What it does do is insure that the old
and new ACs never overlap in time, which might be desirable if one could not rely
on the courts to apply the lex posterior principle exogenously. A strong argument
could be made that any AC is impliedly valid only until amended, notwithstanding
the Kelsenian super-entrenchment of ACs noted in Section 9.D. This is especially
so if "valid only until amended" means that an AC in its current form binds only in
that form until it is changed to another form. This is nearly a tautology, but not
quite: if self-amendment is permitted, it is even closer to tautology, and only
becomes a tautology if irrevocable self-amendment is permitted. If an AC has
self-embracing omnipotence, then it may limit or repeal itself irrevocably, and
therefore invalidate itself. If it has continuing omnipotence, then all self-limitations
are revocable; but while they last they genuinely change the AC and bind in another
form, even if they cannot totally change the AC. Moreover, the very immutability
of the continuing character of continuing omnipotence shows that, if it could be
changed irrevocably, then its original form would be invalidated.
Because the "valid until amended" limitation is simply the incorporation of
the lex posterior principle, it therefore cannot be read into an entrenchment or
self-entrenchment clause, insofar as the latter are temporally symmetrical correlates
of implied repeal and the lex posterior principle (Section 9.D). If "valid until
amended" means that newer rules impliedly repeal all inconsistent older rules on
their own hierarchical level, pro tanto or to the extent of their irreconcilable
conflict, and if entrenchment is the reversal of this rule of priority, allowing the
existing rule to repeal the newcomer pro tanto, then entrenchment clauses, taken at
face value, reverse and do not incorporate the lex posterior principle. If they are
mutable and repealable, then it is by special effort, not by the sort of change so
routine that its permissibility may automatically or presumptively be read into them.
In one of the few general studies of the logic of rules, Joan Safran Ganz
concluded that one of the recurrent features of rules is that they have been adopted
and "remain in force until unadopted".[Note 6]
As noted in Section 9.D, the Rhode Island constitution is the only one in the
nation that says of itself that it is valid until amended: a clause entrenching the right
to alter or abolish government adds that "the constitution which at any time exists,
till changed by an explicit and authentic act of the whole people, is sacredly
obligatory upon all" (emphases added). Most states are content to presume that
their constitutions are valid only "till amended". But Rhode Island is the only state
to endure the upheaval of a revolution in which insurgents with strong popular
support set up a constitution and government in opposition to the incumbent. After
its bitter experience in which the Supreme Court refused to decide which was the
legitimate government of the state, and in which President Tyler supported the
incumbent with national troops, Rhode Island was understandably careful in its
subsequent constitutional convention to assert both the lex posterior principle (to
satisfy the insurgents) and a rough test of revolutionary legality (to satisfy the
With the memories of the new nation's revolution still bright in his mind,
Alexander Hamilton wrote in similar vein in Federalist #78. The most basic laws
are mutable, but only by the forms and procedures the people have imposed upon
themselves in their constitution.
Until the people have, by some solemn and authoritative act, annulled
or changed the established form, it is binding upon themselves
collectively, as well as individually; and no presumption, or even
knowledge of their sentiments, can warrant their representatives in a
departure from it prior to such an act.
This is a strong statement of the "self-entrenched" character of all law, which
requires that its own forms be followed. But for the same reason it is a strong
statement of the principle that law binds until changed —in some way the opposite
principle. Hamilton is asserting the balance between stable old law that demands
respect, and the rights of new law to take over when solemn formalities have
indicated consent. It is strange and wonderful that this play of opposites should
sound nearly tautologous to our ears. It is no accident that this balanced view is
made explicit in the turmoil and long memories following revolution, and set up as a
warning. It is important at those moments to reassert the unexceptionable rule of
law, but equally important to reassert the mutability of law.
C. The procedural model
Under the procedural and acceptance models the paradox need never arise,
either because the new AC is validated directly by acceptance, not by the old AC,
or because the contradiction between the new and old ACs is tolerable under the
procedural and acceptance models. No effort need be made, theoretically or
practically, to insure that the new and old ACs are never in effect at the same time,
for any overlap and contradiction may be excused or ignored.
We can distinguish several theories of the source of the validity of a newly
changed AC. With Ross, the source of legal validity may be the logical validity of a
certain inference from a prior, higher rule of change. With Hart, it may be the
acceptance of the people and the usage of officials, or conformity to a rule of
recognition that traces its own authority to acceptance. These are the inference and
acceptance models of authority and validity.
A third model lies between the inference and acceptance models in many
ways. It may be called the procedural model. It derives the validity of a newly
changed rule from compliance with the demands of a valid procedure. Procedures
are legal entities, not logical ones, and may perform whatever valid law permits
them to perform, not only those things that can be validated by sound deductive
inferences from prior rules.
If the procedure for amendment requires x, y, and z for a valid, final, and
complete act of amendment, and if x, y, and z have certifiably been performed, then
amendment has occurred and is valid under the procedural model. The importance
of the procedural model, and what distinguishes it from the inference model, is that
the amendment will be valid even if there is reason to find the outcome inconsistent
with x, y, or z, with a rule of change, or with itself. The procedural model envisions
outcomes abstractly, as separate and separable from their mode of becoming, and
without any "backward-looking" consideration for the procedure itself or its
premises in the particular case. Under the procedural model, the outcome of a
judicial procedure may deny the jurisdictional basis of the proceeding without
undermining the outcome itself.[Note 8] The outcome of a legislative
investigation may reveal the total absence of the required basis for a legislative
investigation without thereby invalidating the outcome itself.[Note 9]
The outcome of a jury deliberation may logically imply the opposite outcome
without subverting itself or legally requiring that the opposite outcome be given
Logically the procedural model is anomalous, if not scandalous. But that is
just to say that it differs from the inference model. If procedures are pictured as
inferences, then the procedural model permits invalid inferences to make valid law.
For the procedural model, the validity of the outcome does not depend on the
logical validity of any inference, and therefore does not depend on consistency with
any antecedents; it depends solely on the legal validity of the procedure itself and
the satisfaction of its requirements. In short, under the procedural model to picture
procedures as inferences is inaccurate, for it suggests that some permissible
procedures are impermissible.
Hart's exposition of the acceptance model does not go into sufficient detail to
allow us to determine its exact relations with the procedural model. Both models
will allow the outcomes of procedures to contradict indispensable premises,
although for different reasons. For the acceptance model, procedures may be
defectively applied, or bypassed for invention; for the procedural model, acceptance
is irrelevant once the procedure is known to be lawful.
D. Other views
The inadequacy of the time-based objection is the main reason why I prefer
Hart's acceptance model to Hart's own explicit answer to Ross. In his later essay,
"Self-Referring Laws,"[Note 11] Hart uses the time-based objection
and did not notice that a solution wrought from his own acceptance theory applies
elegantly to the problem and far surpasses the adequacy of temporal separation.
Speaking of the American constitution and its AC, Hart said,[Note
It may be true, at least in some cases, that a norm cannot be derived
from 'a source of derivation' with which it conflicts. But there is no
conflict if Article V is amended in accordance with its own provisions.
For the original Article V and the amended Article relate to different
periods of time: the original procedure is to be used until it is replaced
by the new, and the new procedure is to be used thereafter.
This argument is unavailing against the inference model, and unnecessary for other
models. Hart seems to sense this, and after quoting Ross on the inferential structure
of legal change, replies,[Note 13]
To this it might be objected that the exercise of legislative power to
introduce new norms is not a deductive inference and it is not clear
how this logical principle applies to a legislative act.
Hart has suggested an adequate solution, I contend, simply by rejecting the
inference model. But this is far different from dissolving the paradox for the
inference model or for formal logic generally. Hart continues, saying that an act of
self-amendment that led to an inconsistent new AC is in any event perfectly
possible and coherent if the old AC had self-embracing omnipotence. This
proposal will be considered in Section 11.
Ross's statement of the paradox of self-amendment evoked many responses.
The Scandinavian comments all relied on the time-based objection.[Note
14] In English I have found only six responses in addition to Hart's: by
Geoffrey Marshall, Joseph Raz, Norbert Hoerster, J.M. Finnis, J.C. Hicks, and
William F. Harris II.[Note 15] Of these Marshall, Raz, and Hoerster
all urge the time-based objection (with other objections), and Finnis shows its
insufficiency; Hicks generally supports Ross. Harris does not decide the adequacy
of Ross's case.
Marshall argues that a "phased" rule of amendment that explicitly said that its
power will be limited by its successor will avoid the self-referential aspect of the
paradox.[Note 16] It will not avoid the logical
contradiction between premise and conclusion for the inference model.
Raz believes that at a certain moment, T1, the old AC may be valid and a new
AC may be adopted in accordance with it, while at T2 the old AC is invalid and the
new AC is valid.[Note 17] This is certainly true, or could be
true, but Raz is wrong to say that in that form, "the conclusion does not contradict
the assumptions and the argument is both valid and accurately describes the
situation."[Note 18] Raz deals only with legal, not logical
contradiction, and ignores the problem of transtemporal validation for the inference
model. The argument or inference will be invalid so long as one premise asserts the
validity of the old AC and the conclusion asserts the validity of the inconsistent new
Hoerster argues that the new AC does not contradict any valid law, but only
contradicts the old AC and never when both are valid.[Note
20] Here Hoerster also confuses legal and logical contradiction. The
contradiction vanishes legally when the old AC passes out of effect, but the logical
Finnis is the only commentator to appreciate that the time-based objection
ignores Ross's insistence that no valid rule can authorize any rule inconsistent with
itself.[Note 21] This principle applies (for formalists)
regardless of the events that temporally intervene between the rule of change and
one of its products, such as the repeal of the rule of change in self-amendment.
Ross was worried that the believers in self-amendment not only believed in the
valid derivation of norms inconsistent with the source, but also in the transtemporal
validation of rules. Finnis coined the term "transtemporal validation" to designate
the sense in which the old AC continues in force to validate its successor.[Note
22] Those who believe in it appeal to the validity-bestowing power of a
repealed and invalid rule, as if the old AC arose from the grave in rarefied form to
support the validity of its successor.
Because Ross believed that no conclusion remains established unless its
premises remain true, he ascribed the doctrine of transtemporal validation to all
those who believed in self-amendment, overlooking that they might justify
self-amendment by a source of authority external to the constitution, such as
acceptance, consent, or military power, or a source heedless of the death of the
authority, as under the procedural model. Ross denied that transtemporal validation
could occur, and accused proponents of self-amendment of presupposing it. Finnis
apparently agrees with Ross on both counts, and therefore favors a Hartian
(acceptance) solution precisely because "in Hart's analysis...the transtemporal
validation of basic rules, relied on by Kelsen and recognized as troublesome by
Ross, is simply and silently omitted."[Note
23] Hart avoids the necessity of transtemporal validation by denying that
all rules are validated by antecedent rules. Some rules, on the contrary, are
validated directly by present acceptance.[Note
24] Hart also rejected transtemporal validation explicitly in his later
essay:[Note 25] Ross's argument, he wrote, is
"questionable" to the extent that it relies on the statement that a derivation of a new
norm presupposes not only the validity of the superior norm but its continued
existence after the creation of the new norm.
The solution provided by the acceptance theory does not require the denial of
transtemporal validation, although every rule validated by acceptance makes that
rule's transtemporal validation unnecessary. I will argue in Section 14 that some
rules that authorize their own repeal may be considered to persist afterwards in
order to confirm the fact of repeal, and that this sort of transtemporal validation may
be accepted. Indeed, in Section 21 I will argue that any absurdity that can be
accepted in the rigorous sense can be law. Finnis, in short, did not have to deny
transtemporal validation in order to deny Ross, but neither on the other hand did he
have to concede that all proponents of permissible self-amendment, except possibly
Hart, require transtemporal validation.
Ross avoids transtemporal validation and self-amendment by deriving the
authority of the amended AC from a postulated tacit, immutable rule superior to the
constitution,[Note 26] not from the old AC. I have argued
(in Section 6.B) that this is ad hoc and fictitious. Indeed, Ross only gets into a
position from which ad hoc and fictitious remedies will suffice because he has
insisted on judging law by the principles of formal logic, a course not justified by
any legal principle but only by the pretension of formal logic itself to rule the world.
Raz answers Ross, not through the time-based objection, but by arguing that
self-reference is unnecessary in self-amendment, and in any case is not meaningless
or problematic. Moreover, if Ross would have us avoid self-reference, then we will
face many more difficulties interpreting law than we now face. For the avoidance
of self-reference leads to crude paraphrases in which at least two rules are needed
to transcribe one, and even then do not capture the original sense perfectly.[Note
Marshall objects, quite rightly, that if some new AC cannot become valid
because it cannot be derived from its predecessor, then it is not at all clear how the
present AC could have become valid.[Note
28] Ross would answer that the tacit transcendent rule validated the
current AC. But in Ross's formulation of the terms of that tacit rule, it applies only
to AC's that already exist and point to their successors; it does not apply not to
unstructured amending power in constitutional conventions or in the people creating
the first AC. We can trace the authority of the current AC back a few constitutions,
but then Ross would leave us without an answer. But this is damaging to Ross's
position, for if the endpoint AC had no authority, then its offspring have no
authority. This is a variation on the argument that Ross commits himself to an
infinite genealogy for every valid legal system.
Hoerster has several arguments against Ross other than the time-based
argument. First, he argues that there is no contradiction in the Rossian inference
because the old and new ACs equivocate on the word "constitution". The old AC
authorizes amendment of the constitution that contains it, while the new AC
authorizes amendment of the different constitution that omits the old AC and
contains the new.[Note 29] This argument is specious and
self-defeating. If the equivocation is admitted, then the inference is still fallacious,
though now for equivocating. On Ross's inference model, the conclusion is still far
from established. But the equivocation may be avoided by implied adjustments to
meaning or explicit rewording, even if the appropriate rewording occurs in no actual
AC. If the rules in the constitution other than the AC are called set S, then the AC
may be read to say, "this AC authorizes amendment of set S and this AC." The
new AC could be read to authorize the amendment of set S and the new AC,
eliminating all equivocation.
Hoerster also objects to Ross's tacit, transcendent rule because it always
authorizes amendment of the AC, when in fact the people may wish to amend it to
give it a continuing omnipotence that would resist some amendments.[Note
30] Or, the immutability of the tacit, transcendent rule prevents the
immutable self-limitation and self-repeal of the AC, and therefore does not capture
the legal possibilities inherent in self-amendment. He also objects that if a nation
amended its AC every generation for 100 generations, without reference to such a
tacit, transcendent rule, then that nation cannot be said to defer to such a rule, or
such a rule cannot be said to govern the amendment of the AC. He rightly notes
that Ross would not allow 100 generations of acceptance and usage to cure an
original defect. Ross and other formalists must worry that an unknown defect
buried in the past makes the present AC and entire legal order illegal.
Hoerster adopts an acceptance theory as his final answer to Ross. There may
have been a defect in the adoption of the current AC or the ancient ancestor of the
current AC, under the terms of the tacit, transcendent rule:[Note
But the important thing is, we don't ever care to know, if we want to
find out how to settle basic constitutional questions: To this task
political history is simply irrelevant. All that is relevant is whether [the current AC] in our community is accepted as basic.
E. One more try at satisfying the inference model
|This section was mislabeled "D" in the print edition.
If Ross takes pains to deny transtemporal validation, then it seems he
believes that the old AC can authorize nothing after it loses validity, not even the
norms consistent with it. But suppose one argued that the old AC authorizes its
successors while it is still valid, and that it passes out of validity just as its
successor becomes effective. It is true, as Hoerster argued, that the new AC never
contradicts valid law, but might it also be the case that it never contradicts the old
AC for the same reason that the old AC is unable to authorize any new norms? Are
the old and new ACs really inconsistent, logically, as opposed to legally, if they are
never thought to bear the status of valid law at the same time? The procedural
model denies transtemporal validation, and permits new rules to become and remain
valid even though their authorizing rules have been repealed. If the vanishing of the
old AC is not likened to the denial of a premise in an inference, as Ross has it, but
is likened to the discontinued assertion of a premise, then might the inference work?
If the old AC is not positively denied, but simply dropped from the set of asserted
premises, before or as the conclusion comes to be asserted, then does the
conclusion contradict any premise?
This is like asking whether p and ~p are inconsistent if only one of them is
asserted to be true. The answer may be yes or no depending on one's metaphysic of
asserted and unasserted meanings. A surer route to an answer is to note that the
inference model requires integrity of inference in general, and that consistency is
just one element of this. The inference is also unsuccessful in establishing its
conclusion if we cease asserting an indispensable premise just before, or just as, we
assert the conclusion.
Logic has no name for this defect because logicians evaluate inferences under
the assumption that all the premises are true. That all are asserted to be true is
thereby also assumed, but tacitly. The consequences for the proof of denying a
premise are well known: the conclusion is no longer proved. The consequences of
ceasing to assert a premise midway in the inference are novel. Logicians also
consider inferences to occur instantaneously. A set of premises implies or
determines a set of conclusions without any lapse of time; only the human logician
is under the sway of time in discovering (or proving or writing) those conclusions.
A set of premises asserted to be true determines a set of conclusions at once; there
is literally no time to change the status of a premises after an inference has begun
and before it has ended, unless we consider inferences to be psychological
processes. But if do that, then the concept of validity used by Ross and other
logicians also vanishes.
Logically, the jurist who defends the inference model must choose between
(1) asserting all and only the conclusions determined by the joint assertion of all her
premises, and forgoing the derivation of all conclusions inconsistent with any
premise, and (2) asserting all and only the conclusions determined by the joint
assertion of those premises she is willing to leave asserted throughout the inference,
and forgoing all the premises inconsistent with the conclusions she desires to
derive. (The third option of using inconsistent premises deliberately is omitted
because it clearly would not solve Ross's problem.)
In short, the paradox of self-amendment will still arise, even under the
inference model, when we assume that the old and new ACs were never in effect at
the same time. However, under the procedural model we may accomplish
something very similar to the derivation of a conclusion after ceasing to assert an
indispensable premise. For procedures do take time, and do not fail merely because
the technical rules of inference are not satisfied. The old AC specifies the
procedures of change, and ex hypothesi of its own change. Under the procedural
model we may rely on the validity of the procedure, and just as we assert the
validity of the new AC deny or suspend our assertion of the validity of the
procedure. (While this is so, it is also the case that under the procedural model
such maneuvers to avoid contradiction are unnecessary.) Because procedures are
not instantaneous, there is time between between the steps to change the status of a
"premise". Moreover, the logical difficulty or impossibility of asserting and ceasing
to assert the same premise in the same inference becomes irrelevant. If it seems
preposterous and illogical, it may be because one has not fully appreciated the
freedom from logic that the procedural model finds in law.
The fact that the old and new ACs are never in effect (valid and supreme) at
the same time, does not dissolve the paradox for the inference model. If one thinks
it does, one may unconsciously have exchanged the procedural for the inference
model, and forgotten that the inference model requires logically valid deductive
inferences, not merely well-run, valid procedures. One may also have forgotten that
the inference model requires the continuing validity (or "truth") of the premises in
order to provide continuing validity (or "truth") to the conclusion.
In sum, under the inference model self-amendment of an AC to a form
inconsistent with its original form requires either (1) the inconsistency between a
premise and the conclusion, when the premises are consistent with one another,
which makes the inference logically invalid and the conclusion legally invalid, or
(2) the abstract separation of steps in the inference, as if in time, and the arrest of
our assertion of an indispensable premise just as we conclude the conclusion, which
is either impossible or a dressed up description of contradictory attitudes toward a
premise. The attempt to avoid the former fallacy by keeping the old and new ACs
separate in time, while still deriving the new from the old, leads to the latter fallacy.
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.
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. [Resume]
2. Alf Ross, "On
Self-Reference and a Puzzle in Constitutional Law," Mind, 78 (1969) 1-24, at
3. See e.g. L. Thorne
McCarty, "Permissions and Obligations: An Informal Introduction,"
forthcoming, North-Holland. [Resume]
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. [Resume]
5. Ross, op. cit. at 20-21.
6. Joan Safran Ganz, Rules:
A Systematic Study, The Hague: Mouton, 1971, at p. 5. [Resume]
7. See entry under Rhode
Island in Appendix 2, and Luther v. Borden, 48 U.S. 1 (1849). [Resume]
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 domicilied in the jurisidiction, 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 annullments. Because annullments 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 annullment (one at which only one spouse is present). But because annullments 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. [Resume]
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. [Resume]
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. [Resume]
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.
12. Hart, ibid. at 314
(emphasis in original). [Resume]
13. Hart, ibid. at 315.
14. Ross, op. cit. at
7.n.1, and 20. [Resume]
15. Geoffrey Marshall,
Constitutional Theory, Oxford University Press, 1971, pp. 46-48; Joseph Raz,
"Professor A. Ross and Some Legal Puzzles," Mind, 81 (1972) 415-21; Norbert
Hoerster, "On Alf Ross's Alleged Puzzle in Constitutional Law," Mind, 81
(1972) 422-26; J.M. Finnis, "Revolutions and Continuity of Law," in A.W.B.
Simpson (ed.), Oxford Essays in Jurisprudence, Second Series, Oxford Univesity
Press, 1973, pp. 44-76, at 52ff; J.C. Hicks, "The Liar Paradox in Legal
Reasoning," Cambridge Law Journal, 29 (1971) 275-91; and William F. Harris II,
The Interpretable Constitution, Chapter Four, "Revising the Constitutional
Polity: The Limits on Textual Amendability," esp. pp. 238-39, Ph.D.
Dissertation, Department of Politics, Princeton University, 1985;. I thank
Professor John Vile for bringing Harris's dissertation to my attention. [Resume]
16. Marshall, op. cit. at
p. 48. [Resume]
17. Raz, op. cit. at 420.
18. Raz, ibid. [Resume]
19. How the consistency of
such inferences is affected by the fact that the old AC in the first premise
authorizes amendments in general, and specifically authorizes self-amendment,
will be examined in Section 12.C. [Resume]
20. Hoerster, op. cit. at
21. Ross, op. cit. at 21:
"Any attempt at solution must stand by the principle that from the validity of
a norm it is impossible to derive the validity of any norm in conflict with
22. Finnis, op. cit. at
23. Finnis, ibid. [Resume]
24. Finnis, ibid. cites
Hart, The Concept of Law, Oxford University Press, 1961, at 103-04. [Resume]
25. Hart, "Self-Referring
Laws," op. cit. at 314. [Resume]
26. Ross, op. cit. at
21-22, 23-24. [Resume]
27. Raz, op. cit., passim.
28. Marshall, op. cit. at
p. 47. [Resume]
29. Hoerster, op cit. at
30. Hoerster, ibid. at
31. Hoerster, ibid. at