Conclusions and Explorations
Peter Suber, Paradox of Self-Amendment Table of Contents
- A. Summary
- B. Acceptance and consistency
- C. Some oddities and implications
- D. A word on the merits of the direct acceptance theory
- E. Self-application
Restating my theses with their supporting arguments would, I hope, nearly double the size of this book. But a restatement of my chief theses with their chief supporting propositions may be done far more briefly, and with the effect of bringing all the various strands of the problem together. This summary covers Part One only. Sections 21.B-E, below, go beyond summary to explore some of the consequences of my position.
Summary of analysis and argument
Because the paradox of self-amendment is a special case of the paradox of omnipotence, our central question is whether a deity or AC can irrevocably limit its own power. Logicians using strictly logical criteria offer the answer that such self-limitation is self-contradictory; the same answer is given by lawyers and theologians who adopt the criteria of formal logic for their disciplines. No one using strictly legal criteria has ever said that self-limitation is self-contradictory, let alone impermissible.
The logical or formalist view of law as it affects this problem I am calling the inference model of legal change and validity. Under the inference model, legal change is modeled by deductive inference. The authorizing rule of change (for example, the old AC) is one premise, the fact of enactment under the authorizing rule or procedure is another, and the validity of the new rule (new AC) is the conclusion.
Rule: If act A is done, then rule B is valid.
Fact: Act A is done.
Conclusion: Therefore, rule B is valid.
The theory is that the amendment is lawful if and only if this deduction is valid and its premises are true.
Self-amendment occurs when the rule affirmed in the conclusion is meant to replace the rule in the premises, that is, when the rule in the premises refers to itself. Irrevocable self-limitation is self-contradictory on this model because it requires an inconsistency between a premise and the conclusion of the inference, when the premises themselves are (or may as well be) internally consistent. The rule of change that sits in the premise is inconsistent with its own invalidation, or with the exclusive validity of its successor asserted in the conclusion. Alf Ross, the Danish logician and jurist, has argued in detail[Note 1] that by formal criteria such an inference must be invalid. The esteem of Alf Ross in both logic and law forces us to take his arguments and his model of legal change seriously. Apart from this, we are led to take the inference model seriously by virtue of the widespread, usually unreflective belief that law is logical. Under the inference model what is logically impossible is therefore legally impermissible, and any legal practice or tradition to the contrary is itself a violation of both law and logic.
There may well be a way to dissolve the paradox for the inference model or for formal logic generally. (We will see that satisfying the inference model is more difficult than satisfying formal logic alone.) Such dissolution would take the form of removing the inconsistency between premise and conclusion in the inference that models the act of amendment. A dissolution of this kind would satisfy logicians even if it had absurd consequences for law; but I have not been able to find even one dissolution of this kind that stands up to analysis.[Note 2]
We may distinguish two ways to "solve" a paradox. Paradoxes are not mere contradictions; they are not nearly as tame. But their bite lies in their way of making contradiction appear inescapable. One kind of solution is to escape contradiction by a path not seen by others. I am calling this a dissolution of the paradox. Another way is to explain why contradiction is harmless, whether it is escapable or not. This will only work when contradiction is harmless, of course, and most of the argument in support of solutions of this kind will be spent in that cause. This will not dissolve the paradox, but will excuse and domesticate it, removing its sting and threat. It is much like what lawyers call an "affirmative defense": admit that you did it, but claim some excuse like insanity. The second kind of solution is more radical than it seems and requires, in effect, an insanity defense for law itself.
In short, my thesis is that no dissolution satisfies the terms of the inference model, but that when we reject that model we find a number of plausible domesticating strategies. First I will consider various attempts to dissolve the paradox.
In standard logic all propositions follow validly from a contradiction. Therefore, one solution might be deliberately to make the premises of the inference that models the change internally inconsistent. This would certainly work to make the new AC a logically valid consequence of the old one. But it would work only at the cost of assuring that every AC is internally inconsistent. This result is inadmissible for the inference model, which cannot allow inconsistent rules simultaneous validity. However, if one likes, one may consider the total invalidation of the AC a solution satisfactory to logic that is repugnant only to law. My aim, however, is to explain how actual change of ACs has been possible, or how far it is logical. The actuality of self-amendment is a fact that is part of the explanandum (see Appendix 2). Even a logical dissolution must deal with it, much as approaches to the Liar cannot pretend that the lying words do not exist or cannot form the paradoxical statement.
Most philosophers who have approached the problem (primarily through the theological paradox of omnipotence) evidently hope that a solution can be found that does not violate or require the inapplicability of formal logic. I have not argued for any conclusion that should dampen that hope. I have argued that formal logic has very limited application in law, but not that a dissolution of the legal form of the paradox is strictly impossible by logical criteria. Hence I admit without the same earnestness of hope that there may well be a dissolution of the paradox satisfactory to formal logic. All I have argued is (1) that the obvious attempts at such dissolution fail, and (2) that in any case law can dispense with such a dissolution. The second point is the more important thesis, and stands (if it stands at all) even if a satisfactory logical dissolution should be discovered tomorrow.
In this sense the state of self-amendment today is analogous to the state of calculus between Leibniz and Weierstrass. There may be a way to render it coherent and consistent, but so far we lack the theory to do so. Meantime we use it with good results. The difference is that a coherent theory of self-amendment is unnecessary for law, while a coherent theory of the calculus was vitally necessary for mathematics.
If self-amendment would be logically impeccable if only certain niceties were observed in rewording the clause and in transacting its self-change, then a legal system may still ignore those niceties utterly. This remains the case whether the required changes are ingeniously simple or hideously complex. Today lawmakers listen to what logicians say they should do only to the extent that logicians form a weighty voting bloc in their constituencies. There is no reason to think that their lawmaking acts will cease to be valid if the logicians should one day become correct, any more than those lawmaking acts are invalidated when the weightier loyal opposition is correct. Legal validity is a matter of power and social practice, not abstract correctness.
There will be no solution satisfactory to formal logic if formal logic bars all self-reference, say, by incorporating a theory of types, and if self-amendment unavoidably requires self-reference. Ross believes this is the case, but has been followed in this by only one commentator,[Note 3] and then only with reservations. Hart[Note 4] leads the opponents of this view in arguing that at least some self-reference is logically and legally unobjectionable. Raz[Note 5] even argues that self-reference is unnecessary in self-amendment. I argue that examples of self-reference and self-application can be legally acceptable, even if meaningless to some formal logicians, so long as legislators, voters, and judges find some meaning in them. Moreover, if all self-reference is meaningless, then a self-referential AC would be unavailable even for ordinary, irreflexive amendment, which proves far more than Ross intended or desired.
Ross distinguishes between logical and legal contradictions. A logical contradiction exists between any statement and its negation. We don't have to assert one or both of the statements for the contradiction to exist. A legal contradiction exists between any two inconsistent laws that are both valid at the same time. If they are not both valid at the same time, they will be logically but not legally contradictory. Armed with this distinction, Ross has an answer to the most common attempt to dissolve the paradox of self-amendment.
The most common attempt to dissolve the paradox has been to insure, or assume, that the old and new ACs are never valid and supreme at the same time. Temporal overlap can be prevented; but preventing it merely avoids a legal contradiction, not a logical contradiction. It keeps inconsistent rules from enjoying simultaneous legal validity, but thereby presupposes their logical inconsistency. That inconsistency invalidates the inference that models self-amendment because a logical contradiction between premise and conclusion (when the premises are internally consistent) suffices to invalidate a deduction. As Ross often puts it, the invalidity consists in our attempt to derive from one norm a second norm inconsistent with the first.
If one rejects the distinction between logical and legal contradiction, but still holds the inference model of legal change, then one is no better situated to overcome the invalidity of the inference that models the self-amendment. If the contradiction is supposed to disappear because the old AC loses validity at the moment the new one acquires validity, then in the inference that models this process the assertion of a key premise must be suspended in mid-inference. Even if this successfully removes the inconsistency in the inference that models the self-amendment, it replaces it with a new fallacy. Logicians do not have a name for this fallacy because it cannot be performed in ordinary argument where the inference (conceived logically, as opposed to psychologically) is instantaneous or non-temporal.
In discussing Ross's thesis, John Finnis[Note 6] introduces a term that helps here. If some legal rules are valid only as long as the laws that authorize them are themselves valid, then we can say that those legal rules are routinely validated; if some rules are valid even after their authorities are repealed, then they are "transtemporally" validated. For example, if a court holds its jurisdiction under a statute, and if the statute is repealed, then the court loses its jurisdiction (ceases to be a court) if it is routinely validated, but continues unaffected if it is transtemporally validated. In general we will be tempted to recognize cases of transtemporal validation wherever self-amendment seems to occur, e.g. when a new AC is validated by the old AC that lost its validity when it was superseded by the new one.
I take no position the transtemporal validation of law, although superficial observation suggests that some laws are transtemporally validated and others are not. Ross argues that transtemporal validation is illogical, hence impossible, and yet is logically required for strict self-amendment. His reason for rejecting transtemporal validation is essentially that nothing analogous to it can occur in valid deductions. Inferences in which premises are "dis-asserted" just as the conclusion is asserted violate canons of deduction, including the metaphysical one that premises determine their conclusions instantaneously. Any conclusion whose derivation depends on certain premises is no longer validly concluded if we deny one of those premises, whether we deny it before the inference, after, or (supposing it is even possible) in mid-inference, after affirming the premises and before affirming the conclusion.
In this sense the inference model of legal change requires that all validation be routine, or that none be transtemporal. Accordingly, if we reject the distinction between logical and legal contradiction, and assume that temporal separation of the old and new ACs suffices to avoid the paradox, then we violate the terms of transtemporal validation.
In short, temporal separation does not solve the paradox for the inference model whether we recognize the distinction between logical and legal contradiction or not. If we accept the distinction, then temporal separation only prevents legal contradiction; the logical contradiction remains and suffices to invalidate the deduction that models the legal change. If we reject the distinction, then temporal separation will mean that the new AC is valid only by some magical intervention (like Ross's tacit transcendent rule) or by the old AC through transtemporal separation, which violates the inference model.[Note 7]
So if we are to conclude that self-amendment is lawful without ad hoc or magical makeshifts, then we must abandon the inference model or find another way to dissolve the paradox. I now explore both.
Two non-formalist models of legal authority and change important to this problem are the acceptance and procedural models. (1) The acceptance model makes the validity of new rules depend on a complex of social practice, or on rules that in turn depend on a complex of social practice. This social practice is the joint, cumulative result of the ordinary activity of the people and the officials of the system in enacting, amending, recognizing, respecting, interpreting, following, and disrespecting law. (2) The procedural model holds that, if a procedure (such as that to amend the constitution) is independently known to be lawful, then the products of its correct application are lawful even there is an inconsistency between them and some defining condition of the procedure itself. I will appeal to these two models shortly.
A very attractive attempt to dissolve the paradox appeals to a distinction derived from J.L. Mackie and stated by Hart.[Note 8] The distinction is between continuing and self-embracing omnipotence. Continuing omnipotence is the power to perform any act compatible with the continuation of this power, i.e. any act except irrevocable self-limitation. Self-embracing omnipotence is the power to perform any act as one's first act, including irrevocable self-limitation. Subsequent acts are limited only by the consequences of earlier acts for the extent of one's power. Recalling the naive notion of omnipotence as the power to do any act at any time, this distinction separates "any act" from "any time" in order to make two coherent species of omnipotence from one incoherent one. Continuing omnipotence cannot perform every possible act; preeminently, it cannot "discontinue" itself by some abdication or diminution that cannot be undone. But of those acts that it can perform, it can perform any of them at any time. Self-embracing omnipotence can perform literally any act, but not necessarily at any time. If one act is irrevocable self-limitation, then thereafter the range of power is limited accordingly.
Using this distinction, it is natural and compelling to argue that irrevocable self-limitation is either (1) non-paradoxically impossible, because the AC has continuing omnipotence, or (2) non-paradoxically possible, because the AC has self-embracing omnipotence.
The distinction is not only a plausible solution to the paradox, but it is rooted in real-world legal disputes. Every few years someone in England's Labor Party proposes to abolish the House of Lords. Apart from the politics of the question, many have argued that it is legally impossible to abolish the House of Lords.[Note 9] The House of Lords is one House of Parliament and would therefore have to assent to its own abolition. If the abolition is to be irrevocable, then we are asking whether the House of Lords can limit itself irrevocably. One short answer is that it can, if it has self-embracing omnipotence, and cannot, if it has continuing omnipotence. Similarly, on this line of argument, an AC could limit its power irrevocably if it had self-embracing omnipotence, and could not if it had continuing omnipotence.
Unfortunately, this approach fails under both the acceptance and inference models, although it may succeed under the procedural model. First note that a power of self-embracing omnipotence is a very different thing when exercised by a deity and when embodied in a constitutional AC. If a deity has such a power then it magically creates what it wills; but if an AC has such a power, it only authorizes what others will. Keeping this distinction in mind we can see why irrevocable self-limitation is not made any less self-contradictory by self-embracing omnipotence. The theory of self-embracing omnipotence offers no reason to believe that the inconsistency in self-amendment has been eliminated other than the reason that the inconsistent outcome is authorized. It is tempting at first to believe that what is specifically authorized by a rule cannot be inconsistent with that rule; but this principle is ultimately untenable. I call it the authorization fallacy.
The fallacy in the authorization fallacy is to confuse legal and logical validity, and to assume that what is legally permitted must be logically unobjectionable i.e. free of contradiction. But if a norm specifically authorized the derivation of a norm inconsistent with itself, and if it was used to derive such a norm, then clearly (that is, ex hypothesi), despite the authorization, an inconsistency would exist. Authorization, then, does not remove inconsistencies between the authority and the authorized, but only legitimates them. (See Section 11.A.)
Under the inference model, authorization does not dissolve the paradox. If we accept the distinction between logical and legal contradiction, then authorization goes only to the legal contradiction. If we reject that distinction, then a rule authorizing its own replacement violates transtemporal validation.
The acceptance model cannot accept the theory of self-embracing omnipotence either, but for a very different kind of reason. Under the acceptance model, any self-limitation of an AC that purports to be irrevocable can be repealed if future generations decide (as our generation has decided) that no generation can bind its successors irrevocably. If the people and officials accept a view of law that permits the repeal of "immutable" limitations on the AC, then the AC may be restored to its unlimited power. This means that ACs have a kind of continuing omnipotence. Even if they also have a kind of self-embracing omnipotence, it is not the kind that permits irrevocable self-limitation. (See Section 12.C above, and Sections 21.A, 21.C below.)
Ross's attempted solution was to derive the new AC from a tacit rule superior to the constitution that authorizes exactly such changes. I argue that such a rule is ad hoc, fictitious, and unnecessary for the amendment of the AC, although a judge who could find no other way to permit a changed AC to become valid could permissibly appeal to, or invent, such a rule. Ross's tacit rule, however, does not dissolve the paradox even if taken at face value. It neither removes the contradiction of self-amendment, nor admits and domesticates it. His strategy avoids self-amendment altogether and finds another way to effect the change of constitutional ACs. The price for making strict self-amendment unnecessary is to admit an absolutely immutable rule namely, the tacit, transcendent rule authorizing the change of the AC. For Ross all rules of change but one can be changed; the exception, by the nature of the case, is the supreme rule of change. Because self-amendment is ruled out, the supreme rule of change cannot change itself and, because it is supreme, there is no higher rule to authorize its change.[Note 10] This particular result reflects his more general principle that all legal change is authorized only by prior, higher rules of change. This principle in effect incorporates a theory of types into his version of the inference model.
The requirements of the inference model that every new rule be authorized by a prior, superior rule, and that none be self-authorized, quickly proves its inapplicability to real legal systems. This view entails that no legal rule could validly come into being without an infinite genealogy. The inference model cannot explain the legal origins of any legal system, or permit any revolutionary regime to become lawful. It could explain and permit these things if it allowed an exceptional self-authorizing rule, an unauthorized rule, or validation by subsequent acquiescence; but each of these is inadmissible under its rigorous, irreflexive formal criteria. Therefore, proponents of the inference model may not explain self-amendment as peaceful revolution. They can explain the breach that makes revolution, but not the reestablishment of legality after the breach. They cannot even explain how the regime before the breach was lawful.
If the impossibility of validating any law after revolution or without an infinite genealogy causes actual jurists to despair that they live under an illegal regime (no matter where they live), incurable by any device, then they have found a nook of legal absurdity that makes them irrefutable. And there are scholars with such views.[Note 11]
A lesser attempt to dissolve the paradox by rewording the old and new ACs reduces to one of the major types. If the rewording aims at explicit temporal separation, then it reduces to the unsuccessful time-based attempt at dissolution. If the rewording aims at specific authorization of all sorts of self-amendment, then it may put to rest most doubts of the legal permissibility of self-amendment but cannot erase logical inconsistency except through the authorization fallacy.
The see-saw method is one method of changing an AC without appeal to a superior rule of change, and without violating or denying the inference model (Section 13). The see-saw method uses one method of amendment, A, irreflexively to amend another, B, and then B to amend A, back and forth until the desired content is reached. It is not at all clear at first that any desired content can be reached from any initial position. A short-cut to any desired content is possible if an omnipotent rule of change can be added. If the desired content is not to be omnipotent, then the added omnipotent AC must be repealed, which raises all the issues of irrevocable self-limitation. In this sense, the see-saw method (which avoids strict self-amendment) can take us anywhere if strict self-amendment is possible, i.e. if an omnipotent rule of change can be added temporarily and then irrevocably removed. At least self-amendment would be sufficient; whether it is necessary is a difficult question. The theory of contingent omnipotence (summarized below) shows one way by which the see-saw method can take us anywhere. The same theory will be used to vindicate the legality and coherence of strict self-amendment.
The see-saw method, however, should not be understood to explain how (most) actual ACs have been changed, nor as a dissolution of the paradox. Like Ross's tacit, transcendent rule, it allows change of the AC without resort to self-amendment, and therefore shows nothing about the logical or legal permissibility of genuine self-amendment. Unlike Ross's solution, it allows rules of the same level to apply to one another. The see-saw method is ultimately impossible under the inference model if the latter is interpreted to incorporate a theory of types.
Insofar as the paradox depends on an inconsistency between premises and conclusion, it may be defined away by adopting a definition of inconsistency that does not cover most instances of self-amendment. This method is not as artificial and evasive as it might at first appear. The definition of negation (hence, inconsistency) for prescriptive statements is disputed by rival deontic logics. And if any formal logic comes close to fitting law, it is deontic logic the logic of permission and obligation. (It turns out that Alf Ross is also a major player in the development of deontic logic and in the controversy about how it should define negation.)
In law there appear to be at least four tests of inconsistency, two of which might apply to self-amendment (Section 12.C). The minimal "deontic" test finds inconsistency whenever one rule permits what another forbids or vice versa. The broader "compliance" test finds inconsistency whenever simultaneous compliance with two rules is impossible. The deontic test makes all self-amendment paradoxical except trivial renumbering, rearranging, and rewording designed to leave the substance intact.[Note 12] The compliance test allows some substantial self-amendment to escape contradiction and paradox, but not most irrevocable self-limitation. Neither test, therefore, lifts the paradox from the substantive cases of self-amendment we find in legal history. (See Part One and Appendix 2).
Solutions from the acceptance model
Two solutions may be derived from the acceptance model of legal change and validity. One of them doesn't care whether self-amendment is contradictory; if it is, the contradiction can be admitted and excused. The other appears to be a dissolution that eliminates the contradiction from self-amendment, but on closer inspection it eliminates genuine self-amendment along with the contradiction. One shows how genuine self-amendment can be lawful whether or not it is self-contradictory; the other shows how ACs can be amended lawfully and logically even if the method is not strictly reflexive.
The acceptance model holds that the ultimate rule of recognition is authorized by the acceptance and usage of the people and officials of the system. My exposition of the acceptance model is derived from the work of H.L.A. Hart. For many commentators on Hart, acceptance authorizes only one master rule, which Hart calls the "rule of recognition", which in turn authorizes every other rule of the system. For these commentators the relationship between the rule of recognition and the other rules of the system is strongly hierarchical and formal; if it weren't for the ultimate role of acceptance, this might well be called an inference model. I do not read Hart this way. In particular I read him as asserting that acceptance can operate on particular rules and rulings directly, without being logically or legally funneled through the rule of recognition.
However, to avoid purely exegetical squabbles I am happy to call my view a "modified acceptance theory". The key modification for my purposes is that some rules other than the ultimate rule of recognition are authorized directly by acceptance, and that in principle acceptance can always overrule the rule of recognition to invalidate what the rule authorized or to validate what it did not authorize. The modified theory may be made tidier if the overruling of the rule of recognition is considered ipso facto to amend it. That way the rule of recognition preserves its role as universal arbiter (but not, for Hart, self-arbiter). I have no objection to such a move, provided it does not tidy things beyond recognition, and lead to the denial of the power and legitimacy of acceptance as an alegal source of legal authority to interfere at any time for or against any rule.
Now that the modification is clear, I'd like to call the position the "direct" acceptance theory. The name of the position emphasizes, not that I differ from some other readers of Hart, but that acceptance works directly on all fronts of a legal system at once, not indirectly through one master rule, and that its authorizing effect arises from social practice rather than inferentially trickling down from the pinnacle of a pyramid of rules. The direct acceptance theory does not deny that there is a hierarchy of rules in which superiors authorize inferiors; it only insists that this is contingent on what is accepted, not necessary for legality as such. It may be that most rules most of the time are authorized by other, higher rules, and that acceptance only rarely "intervenes" to do its work directly. The direct acceptance theory requires only that we admit that this can happen in principle namely, when it is accepted as happening.
The two solutions provided by the direct acceptence theory are as follows. First, self-amendment may be accepted as valid despite the contradiction inherent in it, which may be conceded to exist. If the contradiction can really be dissolved, we need not do so; if it cannot, we need not resort to legal fictions that allow us to act as if it were dissolved. This is possible because acceptance is not bound by any formal logic. If the people and officials in the appropriately complex sense accept self-amendment, despite its contradiction, then their acceptance validates it.
The second solution is that the new AC may derive its authority directly from acceptance (or from a rule of recognition amended by acceptance), rather from the old AC, even if the procedures of the old AC were used to propose and ratify the new one. By shifting the authority for the new AC from the old one to direct acceptance, we deny that real self-amendment has occurred. If there is a contradiction in strict self-amendment, this method bypasses it.
If we assume that Hart's rule of recognition would not recognize a contradictory procedure, then both these solutions require the modified or direct, as opposed to the "inferential" acceptance theory.
The first method allows genuine self-amendment to occur, and disregards or forgives any contradiction in the process. The second holds in effect that the appearance of self-amendment is illusory, and that while the procedures of the old AC may have been followed, the authority of the new AC derives from another source.
The first solution works as well with any model of law that can explain legal tolerance for contradiction, such as the procedural model, which I mentioned, and many others that I have not discussed, such as an ideological model that identifies valid law by its content only and never by its form; theological and militaristic models that replace social acceptance with the will of a deity or junta; or a drunken judge model that exonerates all official error and allows it to live the normal life of law which is not logic but experience.
The second solution works as well with any posited source of authority for the new AC other than the old AC. Ross's tacit, transcendent rule is in this category, as is (for many) a "social contract". Principles in Ronald Dworkin's sense of the term are also candidates for the source of the authority of the new AC; such principles might pertain to popular sovereignty, justice across generations, or deference to the action of a constitutional convention.
The first solution not only forgives the contradiction that Ross found in the inference modeling self-amendment, but also the absurdities (if that is what they are) in transtemporal validation. In strict self-amendment when the new AC is authorized by the old AC, the authority for the new clause is either repealed by the act of amendment, requiring transtemporal validation, or it persists despite its replacement, like the grin of the Cheshire cat. Nevertheless, all these difficulties are merely theoretical; lawmakers may heed them or not, as they wish.
The second solution can be made more venerable, if not more plausible, by putting it in more classical terms. Just as a contract's equivalent of an AC may be amended by the parties without paradox, because the validity of the new clause derives (on one reading) from their agreement, not from the old clause, so the constitutional AC might be changed if the amendment process were interpreted as the act of parties to a contract. The acceptance theory, in fact, is a variant of a classical consent or contract theory of legality. It captures the sense in which the decisions of the people are superior to all law, by their capacity to change and supersede all law, while escaping the less plausible, historical or hypothetical presuppositions of an actual contract theory. The acceptance theory locates legal authority not in a contract but in the less explicit, less rule-like, less reciprocal, more ambiguous, more mutable, and more responsive "instrument" of social practice.[Note 13]
Of the two solutions made possible by the direct acceptance theory I prefer the first that there really is self-amendment and that any contradiction in it is forgivable although there is no need to choose. I believe that the first solution comes closer to explaining how actual ACs actually change, namely, through literal self-amendment, disregarding and plowing under any self-contradiction. The alegal sources of legal authority emphasized in the second solution still exist; they are consequences of the direct acceptance theory. But they need not be invoked to bypass self-amendment when they can be invoked to explain self-amendment.
While the self-limitation of deities remains mysterious, we should remember that the self-amendment of constitutional ACs is transacted and reviewed by human beings. If they don't notice the contradiction within self-amendment, or if they don't care, then they have made law anyway as they always do, in their own image. Eternal, formal criteria of consistency have no standing to complain unless their cause is taken up by some human being.
Because self-application of a rule of change is legally permissible, and because it explains self-amendment, I prefer to supplement Hart by making his secondary rules self-applicable. The alternative is that the rules of recognition, change, and adjudication will be unrecognizable, immutable, and injusticiable. He could have made his secondary rules self-applicable without jeopardizing any part of his theory of law. Indeed he would have strengthened both his theory of law in general and his response to the paradox of self-amendment in particular, which depends now on the common but inadequate objection that the old and new ACs could be kept separate in time.[Note 14]
The solution I prefer allows self-amendment despite the self-contradiction of its nature. A section below (21.B) explores how acceptance can permit us to absorb, tolerate, or forgive some contradiction in law, without obliging us to tolerate all contradiction.
The direct acceptance theory of legal change and validity offers, then, two satisfactory solutions to the paradox of self-amendment. Justifying the direct acceptance theory has only been a parenthetical task of this essay. Demonstrating the inadequacy of the inference model has been much closer to the center of concern. (But see Section 21.D below.) Ross's postulate of a tacit, transcendent rule is theoretically coherent, but it is designed to make strict (reflexive) self-amendment unnecessary, which is itself unnecessary, and it clearly fails to explain actual practice.
Whether self-amendment is legally valid depends not on a nation's law or its AC, but on its concept of law. Permitting change of the AC is compatible with many theories of law, even the inference model, but permitting strict self-amendment of the clause is incompatible with the inference model. Permitting self-amendment in fact is itself permissible in any legal system that currently seems to bar self-amendment (although I know of none of these). One act of accepted self-amendment would overturn the inference model as a descriptive model of law for that system. The proposal and ratification of the reflexive amendment would at the time run afoul of the inference model and perhaps some explicit rules of procedure. But direct acceptance could cure these defects after the fact, contingently, if acceptance shifted in their favor. The reason that violations can be accepted as amendments is that the question of legal permissibility is empirical and turns on what we find when we look. Whether self-amendment is formally contradictory may be a matter for a priori analysis, but that is always distinct from the question of the content of law, even the question of the logical content of law.
Contingent immutability and contingent omnipotence
The direct acceptance theory implies that no rule is absolutely immutable. It follows from this that every AC and even acceptance itself have a sort of continuing omnipotence. If a rule purports to be immutable, for example through complete self-entrenchment, then it may be amended or repealed if the requisite acceptance is obtained. This may be called the "transmutation" of the "immutable" rule into a "mutable" rule. The future generations that were to have been bound immutably may decide (as we have decided) that they cannot be bound immutably, and repeal what was earlier believed to be an immutable rule. This is true, of course, even if the generation that enacted the "immutable" rule intended to bar all repeal, and reasonably believed that they had used legal devices that made repeal unlawful. This means that rules that purport to be immutable are really mutable, but only contingently. With the requisite acceptance, the people can repeal any law; but it is always a matter of historical contingency whether that requisite acceptance will be summoned. And some "immutable" laws may remain unchanged forever if the acceptance that would support amendment or repeal contingently never arises. So while some rules might contingently remain unchanged forever, none is totally immutable. The possibility of contingent amendment and repeal is permanent.[Note 15]
For the same reason any limitation on the amending power, original or self-imposed, is contingently revocable by the AC even if the limitation purports to be immutable. If an AC is used to overcome its own limitations (to disentrench itself), its success is contingent upon future events namely, the mustering of sufficient acceptance. These somewhat anomalous powers may be called the contingent omnipotence of the AC and the contingent immutability of rules, as opposed to the categorical omnipotence of the AC and the categorical immutability of rules.
Contingent omnipotence implies contingent, continuing omnipotence. The contingent omnipotence of the AC cannot be limited irrevocably, for the subsequent repeal of the limitation is always contingently possible, not categorically impossible. Similarly, acceptance itself cannot irrevocably be deprived of its power to authorize law, under the direct acceptance theory, for any such attempt could be invalidated in the future by a shift of acceptance. If we try to prevent this contingency by law, we must use contingently mutable rules; by the nature of the case, this will fail. So while the people and officials may in a spasm of bad judgment or in submission to overpowering force turn their law-authorizing power over to a military or priestly caste, the new regime is lawful only as long as the people and officials accept it; acceptance can always revoke its delegated authority and restore its sovereignty.[Note 16]
This view has the merit of allowing continuing omnipotence without any immutable rule to guarantee its continuity. Until now it seemed that the paradox of self-amendment put us in a harsh dilemma in which we had to choose between paradox and immutability. The direct acceptance theory eliminates immutability and softens paradox to a literally acceptable form. The effect is not only theoretically elegant; by eliminating the need for immutable rules, the direct acceptance theory eliminates an ancient ground for bad faith in recognizing our responsibility for law. No law inherited from our ancestors or "arising from the nature of things" is immutable; if unjust laws persist, we are responsible for them.
The omnipotence of the AC may be abridged by self-imposed limitations, and these limitations may contingently last forever. But because they are always revocable, the AC has a kind of continuing omnipotence.[Note 17] Even acceptance is not guaranteed continuity by a categorically immutable rule, for it may contingently fail to overcome its self-imposed limitations or its transfer of powers to another source of authority. However, if its failure to shed its limitations is only contingent, then it is permanently possible that it may succeed at another time.
If contingent omnipotence implies a kind of continuing omnipotence, it equally implies a kind of self-embracing omnipotence. A contingently omnipotent AC may limit itself in any way, including ways that appear irrevocable at the time and ways that are contingently unrevoked forever. It may also strip away any limitations, including those that appeared irrevocable when enacted.
This view, then, escapes through the horns of a second dilemma posed by categorical self-embracing and categorical continuing omnipotence. We seem bound to choose between a power that can make immutable rules (self-embracing omnipotence) and one that is defined by immutable rules (continuing omnipotence), or this is a tongue twister between a power that is unlimited but limitable immutably and a power that is immutably limited but otherwise illimitable. If one denies omnipotence altogether, then one thereby admits that immutable rules exist to limit power. Contingent omnipotence cannot make categorically immutable rules, and is not defined by categorically immutable rules. Therefore, contingent, continuing omnipotence is also contingent, self-embracing omnipotence. Under this view, there need not be any categorically immutable rules. All the elements of contingently omnipotent rules of change, including their contingent, continuing omnipotence, are subject to self-amendment, and therefore are contingently mutable.
On this view the advantage that no rule is categorically immutable is bought at the price of making every rule of change contingently omnipotent. However, this can be shown to fit the facts of actual practice. I argue in Section 21.C below that the elimination of categorically immutable rules does not require one categorically immutable rule to bar others.
Although acceptance frees us from the paradox of self-amendment and the need for categorically immutable rules, it has something of a paradox of its own, at least implicit in Hart's version of the theory. If acceptance functions to authorize law because the rule of recognition must say that it does, and if the rules authorized by acceptance, particularly the rule of recognition, are discerned from the practice of officials, or if official practice is considered to create or recognize rules, then acceptance authorizes law only because a rule of law says it should. The view that official practice creates or recognizes rules I have called the normative practice doctrine. Hart seems to assert it, but it is not necessary to an acceptance theory of legal validity. Nor must an acceptance theory hold that any rule of law points to acceptance as its authority.
The normative practice doctrine implies that acceptance authorizes a rule that authorizes acceptance to authorize law. Acceptance is not only self-justifying (like the wind and the water), but justified in a circle that passes through a network of rules before returning to acceptance.
Even though I reject the premises that generate this difficulty, I find nothing objectionable in the self-justification of acceptance, and even prefer it to the alternatives of an unjustified source of authority and an infinite regress of sources. One might object that if acceptance can authorize itself, then tyranny or gangster rule can do the same; but this objection is misconceived. A would-be tyrant may declare, in a manner consistent with tyranny, that tyranny is justified, and no harm comes from concluding that by its own standard tyranny is validly self-justified. But it is not thereby made valid law, except to a proponent of tyranny who accepts its standard. A self-proclaimed and self-justified tyrant would not become a valid lawmaker under the acceptance theory unless actually accepted as such in the appropriately complex sense.
But isn't this to beg the question by letting the acceptance theory judge the success of the tyrant's circular logic? Surely if we let the tyrant judge the success of the acceptance theory's circular logic, the conclusion would be equally negative and more emphatic. The reply is that this is not mere favoritism or question-begging. The acceptance theory purports to be an empirical theory that explains the actual source of legal authority. The theory of self-proclaimed tyranny is not an empirical theory, but a program; or if it is an empirical theory, it is easily dismissed as unobservant. The self-authorization of acceptance may be logically similar to other types of self-justifying authorities, but this similarity alone does not enable the other types to become capable, by mere self-proclamation, of seizing the reins of any legal system, except to an extreme formalist for whom legal and logical criteria of validity are congruent. For it is just the history beyond logic that differentiates acceptance from tyranny.
Another virtue of the direct acceptance theory is its consonance with democratic theory. The people cannot categorically limit or repeal their right to make law. This limitation is not paternalistic, and not even self-paternalistic, but an expression of the inalienability of their sovereignty. Actually, the people's sovereignty is contingently alienable, but any alienation of it is contingently revocable as well. This sovereignty, of course, takes the greatly weakened form of acceptance alone. The equal sovereignty of future generations, and their equal right to make and change their laws is contingently inviolate: if we violate the right of future generations to make and change law, then they may restore this right revoke our limitation on their power at will. No generation can bind its successors with categorically immutable rules.
The paradox of omnipotence purports to show that no entity can be omnipotent in an unqualified sense. In this way it is like the Barber paradox. For many philosophers the paradox of omnipotence shows that there can be no omnipotence as defined in the usual unqualified ways. In one sense I have given the paradox its victory, for contingent omnipotence is certainly very far from unqualified omnipotence. But on the other hand, the contradictions that are supposed to preclude the existence of unqualified omnipotence are either eliminated or made acceptable by my solution to the paradox. Self-amendment can be lawful despite acknowledged self-contradiction. Self-limitation can be permanent, contingently, despite the persistence of omnipotence. These consequences are made possible by special properties of law not available to logicians seeking a purely logical solution.
Not surprisingly, there is a theological parallel to this solution available to any theologian willing to assume that an omnipotent deity might perform contradictions. The most distinguished example of such a theologian is Descartes, who wrote to Mersenne in 1634 that[Note 18]
God was as free to make it false that all the radii of a circle are equal as to refrain from creating the world.
and to Mesland in 1644 that
As for the difficulty in conceiving how it was a matter of freedom and indifference to God to make it true that the three angles of a triangle should equal two right angles, or generally that contradictions should not be able to be together, one can easily remove it by considering that the power of God can have no limit....God cannot have been determined to make it true that contradictions cannot be together, and consequently He could have done the contrary.
and to Mersenne in 1630 that
You will be told that if God established these truths He would be able to change them, as a king does his laws; to which it is necessary to reply that this is correct.
Lawyers and theologians who deny that the principle of non-contradiction rules in their realm may accept the paradox with equanimity, as a dialectical logician might and a formal logician never could. I will let theologians speak for themselves from this point, and say only that lawyers who take this path are not simply choosing to play a different game from formal logic; they are arguing that formal logic has limited applicability in their domain, which is a domain of actuality. Formal logic will never accept these arguments as "repeals", but only as "violations", just as the formalist view of self-entrenchment clauses is that all attempted repeals are violations. But self-entrenchment clauses actually fall, and formal logic is the logic of regret, not prevention, or of powerless prescription, not true description, or of abstractly constructed fiction, not reality.
In summary, the direct acceptance theory implies that rules of law have contingent immutability and that amendment clauses have contingent omnipotence. This frees us from two difficult dilemmas, one that would have us choose between paradox and immutability, and another that would have us choose between continuing and self-embracing omnipotence. It also explains self-amendment without ironing it out into a fictitiously linear operation. By explaining genuinely reflexive self-amendment, it explains how law can be lawful without an infinite genealogy, and hence how legality can exist at all. Finally, it reminds us that we can erect no immutable barriers to evil law, and must recognize no immutable obstacles to good law. Law is firm enough to save us from ourselves, and to thwart us, for only a very short time; the only final check to our worst tendencies and protection of our best achievements is our will.
B. Acceptance and consistency
If the inconsistencies of self-amendment are acceptable, then are all inconsistencies acceptable? Whether the answer is yes or no, we must still decide how legal systems distinguish between "good" and "bad" inconsistencies. For if all inconsistencies are acceptable, still some are not accepted; and if not all are acceptable, then even more clearly a line has been drawn that excludes some inconsistencies. No legal system permits or accepts all inconsistencies or contradictions. Therefore, my solution to the paradox of self-amendment would not be complete if I did not make a preliminary attempt to say when the ideal of consistency may be overridden by other values and when it requires overriding all others.
For in one sense my solution is a logical cheat. Paradoxes disturb primarily for making contradiction seem unavoidable. Paradoxes put us in peculiar positions from which all paths out, and standing pat, appear equally contradictory. Yet one cannot easily imagine how to prevent arrival at such positions without barring too many useful paths. If one removes the sting and urgency of paradox by declaring one's willingness to live with contradiction, then one has given up the task imposed by the paradox, not accomplished it. Such a strategy is not without dangers in any case, for it usually underestimates the difficulties of accepting even some contradiction. If one has not become an utter irrationalist, then by any test the burden of proof has shifted to one to justify the selective abandonment of the principle of non-contradiction. I have adopted such a strategy, in effect, for law, and accept the burden of proof. Law can permit self-amendment without attempting to dissolve the paradox latent in it, without waiting for logicians to solve it or declare it illusory, and without fictitiously assuming it away. Law may admit the self-contradictory character of self-amendment and still permit it, while prohibiting much else in the name of consistency.
My answer to this legal ambivalence about formal consistency is twofold: (1) all inconsistencies are in principle (contingently) acceptable, but comparatively few are actually accepted, and (2) just which inconsistencies are actually accepted is a matter of contingent history. Accepting inconsistencies of types that constitute outrageous injustice, hypocrisy, or theoretical confusion are not ipso facto legally impossible, but ipso facto legally improbable. But can we say which inconsistencies are more likely, and which are less likely, to meet with actual acceptance?
Even a preliminary stab at an answer must acknowledge the empirical character of the question. I do not claim the historical competency to provide a detailed account of the inconsistencies most and least likely to be accepted, but I can provide a plausible rough sketch. I offer just a beginning or approach to the historical understanding that must eventually answer the question fully, if we are to have a full answer. If the question is not thought empirical, then the claims of formal logic must be given unqualified recognition, which would completely bar the legal acceptability or validity of inconsistency. I believe that position has been sufficiently dealt with in Part One.
Consistency is a virtue in both statutory and common law. In each, the existence of inconsistent rules is admitted, but the effects of applying inconsistent rules to the same case are mitigated or wholly blocked by devices such as canons of interpretation and construction, the doctrine of implied repeal and amendment pro tanto, equity jurisdiction, judicial attempts at reconciliation and powers of narrow reading, distinguishing, overruling, and nullification, and even "benign neglect" or disregard of one of the rules. All these devices reflect strong repugnance for applying inconsistent rules to the same party in the same sense at the same time. The basis for this repugnance is rarely articulated, but probably stems less often from a sense of theoretical inelegance or "impossibility" than from the gross unfairness and unconscionability of applied contradiction.
My own belief is that inconsistencies in law are least likely to be accepted when they require incompatible acts from the same person or punish a mandatory or permissible act, and most likely to be accepted when they harmlessly infect the abstract concept of a useful procedure or institution such as self-amendment, some applications of the bootstrap doctrine (the jurisdiction of a court to determine its own jurisdiction), and the self-justification of constitutions and revolutions.
Sometimes inconsistencies of the second type may be accepted only because they are overlooked. And of course in many such cases even logicians may disagree on whether a supposed contradiction in them is necessary or eliminable. But I suspect that even a consensus of logical opinion and a crusading legal advocate would fail to stir much reform spirit for the elimination of the second type of inconsistency. Our basic legal policy about contradiction seems to be: if it hurts or is unfair, eliminate it or prevent its application through adjudicatory devices; otherwise smile at the sweating logicians.
The acceptability of at least some contradiction I take to have been established by Part One. Self-amendment is accepted despite the failure of the logical attempts to date to eliminate its contradiction. The mere fact that some contradiction or inconsistency is actually accepted has several important consequences. First, it falsifies the common view that no "actual" inconsistencies exist in law. According to this view, "apparent" inconsistencies abound, but (on the strong version of this view) in every pair of inconsistent rules, at least one member is void or (on a weaker version) a good judge will never apply inconsistent rules to the same party at the same time. Either the inconsistent rules include some nullities, or they succeed each other in time,[Note 19] or they are applicable only in spatially distinct jurisdictions, or they are reconcilable in application by various devices at the judge's disposal.
This view is either false or beside the point. If it applies only to inconsistencies between substantive rules, then it does not reach cases like self-amendment and we cannot assume the unreality of all legal contradiction. If it purports to reach all inconsistencies, then it is falsified by the historical acceptance of inconsistencies such as self-amendment.
Second, a well-known rule of standard, formal logic declares that all propositions (including all contradictions) follow from any contradiction. If some contradictions are legally acceptable, then logically all others would follow. But legally not all do follow. That not all contradictions are legally accepted I take to be an empirical proposition of even greater certainty than the acceptability of some contradiction. But if we suppose that some but not all contradictions are actually accepted, then the logical rules of inference that would require all if any contradiction are obviously inapplicable to law or not fully operative within it.
Rules of deductive inference may have a role to play in law, but they are not permitted to validate as law every proposition that is strictly deducible from propositions already validated as law. Hence the often quoted statement of Lord Halsbury in Quinn v. Leathem, (1901) A.C. 495 at 506:
[A] case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
This means that arguments by reductio ad absurdum should have only limited force in law, for the "logical extreme" of an accepted proposition may not itself be an accepted proposition even though it follows infallibly by logical rules (hence, restates tautologously propositions that are already accepted). This actually undercuts a more basic argument form, the modus tollens, or the argument that a proposition is false if it implies a falsehood. In law, a rule may be legally valid and yet imply others that are legally invalid. The line separating the valid from the invalid, therefore, is not a logical line or is not formally ascertainable; it is always a question of policy. In law we do not "live with the consequences" of our acts and affirmations, at least not if this means the logical consequences. Every step is taken on policy grounds or in bad faith, for normative reasons or by fraudulent appeals to the inexorability of our premises and rules. The ways in which this does, and does not, abrogate the sense in which law is rule-like will be explored below in Sections 21.C and 21.D.
It is true, however, that inconsistent substantive rules need not ever be "actualized" in the same case. But some of the devices for preventing the application of inconsistent rules do not eliminate the inconsistency itself; they merely prevent it from doing mischief in a single case. For example, the common law rules that a person should use her property so that it harms no one else, and that her rights in her property extend from the depths to the heavens, tug in opposite directions when a person contemplates building a tall, noisy, or malodorous building or business on her land. Her rights will be adjudicated without repealing either of the general principles. The inconsistency of the two principles in her case is probably settled for future parties similarly situated at least until the attitudes toward business and community change again. In one sense this lessens the area of overlap and inconsistency of the general principles. If the case were resolved by ranking one principle over the other, then inconsistency in application is avoided, even if the ranking is reversed or ignored in the next case. But the ranking leaves inconsistent rules valid and effective; it merely saves defendants from their joint operation. In this sense we show our distaste for contradiction by devices that prevent it from hitting defendants as it were from both sides at once, but we show our toleration of "theoretical" contradiction by devices that leave contradictory rules intact.
The common law has innumerable inconsistent rules. That is never denied, and indeed the abundance of inconsistent precedents, authorities on each side of each case, and tortured attempts to distinguish cases contrary to the desired outcome are endemic and notorious features of common law adjudication. We accept the inconsistencies latent in the mass of common law rules at least in part because of the devices that can prevent inconsistent rules from reaching simultaneous application. But this shows that we accept the permanent possibility of the simultaneous application of inconsistent rules.
Even when actual reconciliation is attempted, the favored common law technique is piecemeal, or case by case restatement and harmonization. This shows that we tolerate slow reconciliation. Moreover, the piecemeal method results in cases that may stand next to others to form new inconsistencies. We tolerate uncoordinated reconciliation that, if viewed from a distant, exclusively logical standpoint, may take one step backward for every step forward.
The devices that prevent the joint operation of inconsistent rules do not change the fact that we accept continuing contradictions in these ways. For such devices do not protect non-parties from the uncertainty and unpredictability of the law. No common law device is used to help the citizen trying to arrange her primary conduct by looking to the law for guidance. Indeed the difficulties of planning are compounded if inconsistent rules are reconciled only at the stage of adjudication. In this sense, merely "practical" avoidance of contradiction for defendants that leaves inconsistent laws intact does not avoid all the "practical" costs of contradiction.
The problems of slow, uncoordinated, piecemeal reconciliation of inconsistent rules are often solved at one stroke by codification. The resistance to codification in some fields, such as tort law, shows our preference for "flexibility" and "growth" even at the cost of greater inconsistency and uncertainty. Where codification has occurred, it is safe to assume that whatever inconsistencies remain are rarely if ever accepted and cannot easily be used to show our toleration of contradiction. In these contexts it is important to distinguish contradictions we accept from those we overlook. As noted, I do not claim that all existing contradictions are accepted. Some are pounced upon as soon as they are discovered and were suffered to exist in the first place only because we were unaware of them and because our piecemeal and uncoordinated methods of enacting and amending law cannot be prevented from issuing an occasional (or frequent) unexpected inconsistency. Note that even the view that law is a quasi-logical system in which the criteria of logical validity determine legal validity is compatible with much inadvertent inconsistency, provided that sufficient procedural devices exist to reconcile or invalidate them ab initio whenever discovered.
But even in those areas of law where the ideal of consistency is most rigorously upheld, such as criminal law, consistency is not valued for its logical properties, but for policy reasons. Under the right combination of circumstances policy decisions may overrule the ideal of consistency even in an area of carefully codified law. One policy of course is fairness. It is simply unfair to apply rules inconsistent by the direct or compliance test to the same person at the same time. In Lon Fuller's example, U.S. v. Cardiff, 344 U.S. 174 (1952), two sections of a single statute seemed contradictory. One appeared to require that factory owners permit federal inspectors to enter their premises; another appeared to give factory owners a right to refuse consent. As Fuller argues, a logically coherent interpretation was available to the Supreme Court, but the Court perceived the issue ultimately as one of fairness and notice, and voided the conviction of a factory owner who refused consent to an inspection.[Note 20]
Statutory and contractual duties may also conflict in a way that makes simultaneous compliance impossible. A.M. Honore gives the example of a drunk truck driver who must return her truck to the depot by 5 p.m. Either she drives and violates the traffic laws, or stays put and violates her contract.[Note 21] The same logic is involved in these cases, but the policy of preventing the application of conflicting rules is considerably weakened by our sense that the defendant got into her dilemma only through her own fault. In different cases we may let the defendant suffer even without a judgment of her fault. For example, if a manufacturer can only meet her sales contracts by polluting in excess of legal standards, then normally we will give priority to the statute expressing the social value of a clean environment. Occasionally, however, a judge will improvise a "compliance schedule" that permits excessive pollution for a generous period. But these examples show that the mere fact that a person is trapped by inconsistent legal rules and must violate one to comply with others is not by itself a sufficient reason to provide judicial relief. Sometimes the defendant will be left to suffer the consequences of her fault, sometimes to suffer the consequences of overriding social values. But whether the defendant is protected from unfairness or left to choose which rule she will violate, we are allowing policy judgments to supersede and govern the application of the ideal of consistency.[Note 22]
Another policy served by consistency is predictability. Consistent laws make it easier for citizens to understand their rights and obligations and therefore to make plans in reliance upon the boundaries of their liability. Dennis Lloyd has said that one of the "vital aims" of consistency is to enhance the "security and predictability" of our social and economic life.[Note 23] The policy of predictability, however, like that of fairness, does not universally require consistency. The conflict of the policy of predictability with itself is well illustrated in the ironic attempt of courts to render the law more consistent by overruling anomalous rules when many citizens had come to rely upon those very rules. The disruptive effects of overruling settled but undesirable or inconsistent law is mitigated by making the change of law prospective only. But of course even prospective overruling can upset the reliance of long-range planners. Predictability would be best served by ceasing all change of law, the very absurdity of which shows that predictability is not a supreme policy interest. Freezing the law would also freeze inconsistencies, which suggests that our desire to change the law is partly aimed at ameliorating inconsistency and partly at furthering other values at the expense of consistency and predictability.
Change of law is almost never prompted by a merely theoretical desire for consistency, symmetry, or elegance. A problem must be solved, conflict reconciled, injustice remedied, novelty subsumed, ambiguity clarified, interest promoted, mischief hindered, or clamor satisfied. The policy prompting change may not be articulate, but it is the controlling motive, subordinating the claims of formal consistency.[Note 24] One of the native features of legal rationality is the tendency to accommodate the need for change by extending the rules and principles of antecedent law, with one eye on consistent development of the system and one eye on the difficulty that arose in experience. J.D.I. Hughes usefully distinguishes between the "sociological" and the "utilitarian" methods of legal change:[Note 25] in the sociological method
we may refuse to attempt to complete the system by a purely logical process, but prefer to refer the matter back, as it were, to the facts of life....The rules were originally derived from human institutions, and were not formulated in the air. When they fail, let them be referred back to these human institutions for further development, and so make logic subservient to life. Logic will still be necessary in order to harmonize any fresh rules with those already in existence, but will not exercise a cramping effect when life demands an adjustment.
In the utilitarian method, by contrast, we may[Note 26]
take a short cut, and...create at all costs an exception, trusting to luck that the exception may not lead to further trouble, that it may ultimately suggest a principle capable of logical harmonization with the rules already existing.
Our priority is to solve the problem that arose in life and worry about harmonization only later or secondarily. Careful drafting aspires (inter alia) to harmonize a new law with old, but it draws on content that was determined more by the exigencies of the problem and our living policies than the exigencies of consistency. But even the secondary desire for consistent or "harmonized" solutions to difficulties is prompted more by policies of fairness and predictability than logical symmetry. Logical criteria of validity do not interpose themselves on law and invalidate inconsistencies, as Ross and a few others[Note 27] suppose, and thus assure harmony by superior, invariable effectiveness. On the contrary. As Honore put it,[Note 28] the infrequency of actual inconsistency
is a tribute to the wisdom of legislators, not a logical characteristic of legal rules. Of course, if the 'law of contradiction' is simply intended as [a] reminder to legislators to refrain from requiring courses of conduct which experience shows to be usually incompatible, it is unobjectionable.
In a similar vein, A.G. Guest wrote,[Note 29]
[I]t is clear that the law is not a logically monistic system in fact, being full of paradoxes and contradictions. We experience a pleasant surprise when it proves capable of even a small amount of consistency. It would be wrong, however, to attribute this degree of consistency to the dictates of logic, for its coherence may be due to other extra-logical factors.
In short, consistency is a value subservient to other values in law. Even when its turn comes, or in contexts where it is the premier value, it may be analyzed as the product of alogical values such as fairness and predictability. When we hesitate to bring inconsistent rules down on the head of a defendant, it is from a sense of fairness, not logical scruple, and in different cases our sense of the injustice of such applications will be notably weakened without a significant change in the abstract logic of the situation. The development of law may approach consistency, but only because or when consistency best promotes our alogical values.[Note 30]
The desire for consistency in its own right cannot, however, be excluded altogether. The most judicious statement of the various elements of legal decision-making is probably Cardozo's, which makes logic just one element always subject to the superior weight of other values:[Note 31]
[L]ogic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired....There shall be symmetrical developments, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a goal when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare.
The inconsistency of self-amendment interferes with no overriding social values. The same is generally true of inconsistencies that obtain between any procedures and their outcomes[Note 32] or within procedures. By and large the substantive rules of criminal law must be consistent to avoid unfairness, and of the civil law to encourage reliance and planning. But procedures will always be as useful as their products. This utility will rarely be outweighed by disadvantageous side-effects of an inconsistency latent in the procedure. The inconsistency of self-amendment, if indeed it is eliminable, has rarely been noticed. But since Alf Ross noticed it and published his persuasive argument against its logical possibility, no actual instance of self-amendment has been enjoined, nullified, or even criticized on logical grounds by lawyers. Nor has any instance been found objectionable by anyone, including Ross, on policy grounds such as fairness or predictability from which the ideal of consistency in law may derive.[Note 33] In short, the inconsistency of self-amendment and other procedural "impossibilities" is acceptable because it injures no social interest. It is even desirable to the extent that its product (amended ACs, for example) is desirable and obtainable by no other equally acceptable means. As a society we forgive the contradiction of self-amendment in order to procure amended ACs without imposing questionable exceptions on unqualified language, allowing blatant amendment by judiciary, or increasing the risk of revolution. A society that finds an alternative method of procuring amended ACs without unacceptable or less acceptable consequences will be much more at liberty to forbid strict self-amendment on logical grounds.
The acceptance theory is saved from absurdity if it can explain why some inconsistencies are contingently accepted in law while others are not. My belief is that such acceptance is a function of perceived harmlessness to social values, that consistency is not itself an important social value but promotes several others, and that in some contexts, especially in the definition of certain procedures, contradiction may be stark, ineliminable, and widely noticed and still be accepted. These conclusions bear on the question of the role of deduction in law at least (as noted) by highlighting the limited validity of arguments by modus tollens in law, and the invalidity of deriving all propositions (hence, all contradictions) from one contradiction in law. Other consequences for the role of formal logic in law I leave for another occasion.
C. Some oddities and implications
The theory of contingent omnipotence and contingent immutability has highly unusual consequences that must explicitly be jettisoned or embraced if the theory as a whole is to maintain its plausibility. One of the most unusual consequences is that every rule of change, not just constitutional ACs, has contingent omnipotence. Statutes, for example, provide a rule of change for statutes and case law, but are ordinarily thought incapable of amending the constitution. But under the direct acceptance theory, if a statute did purport to amend the constitution, its success could not be ruled categorically impossible. Its success would be contingent upon future events, namely, the mustering of sufficient acceptance. The requisite acceptance could override or amend the rule of recognition that stated that statutes were incapable of amending constitutions. If such an event occurred, it might be true to call it a revolution, but it would not be helpful in deciding its legality. For if we are already committed to the direct acceptance theory, then we know that appropriate acceptance can validate revolution. Under any name, it would be lawful or, more precisely, it would have been made lawful ex post facto by contingent social practices.
Such a showing of acceptance is improbable, and the existing forms of law and the general loyalty to them are large reasons why it is improbable. But it is contingently possible, which is the point here. This gives the statute-making power contingent omnipotence. For the same reasons, the power of judges to amend rules of case law, the power of administrative agencies to amend regulations, and the power of the Chicago City Council to amend Chicago municipal ordinances can each amend the federal constitution, federal and state statutes (even those of other nations), and one another. Each rule of change can amend each, and each can amend every sort of legal rule contingently.
The probabilities that these contingencies will come to pass diminish fast, and are vanishingly small for the power of the Chicago City Council over the federal constitution. No number need be assigned to these probabilities, and no threshold of probability need be surpassed to call them contingently possible. The direct acceptance theory implies this omni-omnipotence, which should be acknowledged.
But immediately after that is acknowledged, the extreme improbability of these absurdities actually occurring must be acknowledged and emphasized. The legal formalist, horrified by what has been made possible, will seize upon the possibility without regard to its improbability. The direct acceptance theory is an empirical theory that attempts to understand the historically actual foundations of legality in acceptance and the historical processes that govern so basic a phenomenon. The theoretical possibility of the Chicago City Council amending the federal constitution, because it is dramatic and absurd, obscures the fact that acceptance is historical, actual, and determined by a web of interests, developments, and movements inseparable from human preferences and practices. The possibility of it authorizing absurdity is not on the order of a coin coming up heads 100 times in a row improbable but in the long run inevitable. It is a function of what the people and officials of a legal system desire, produce, and tolerate. The occurrence of absurdity is not to be feared as if a capricious, random process were at work. We are at work, and will always have the overriding voice as to whether absurdity will occur. In fact, it is just this burden of responsibility that we may contingently bear well or shirk that is captured by the concepts of contingent omnipotence, contingent immutability, and direct acceptance.
We respect and believe it right to respect the existing rules prohibiting statutory amendment of the constitution, defining the jurisdiction of the Chicago City Council, and so forth. The largest obstacle to the absurdities that are contingently possible is the content of existing law and our sense of obligation to abide by it on the whole. As Kelsen might say, an effective legal system is generally obeyed, with the consequence that its provisions are effectively safeguarded against absurd, contingent breaches. This is not at all surprising, for it simply restates the banality that law prevents chaos. It is a human device and as such occasionally falters and constantly requires attention and effort to prevent widespread faltering. The idea that law is so "firm" that it can protect us from ourselves for long is superstitious reification.[Note 34]
Acceptance is less likely to muster on behalf of a Chicago City Council amendment of the federal constitution the more blatantly the amendment violates existing rules and the current sense of loyalty to law. In this sense, law itself keeps the probabilities low that gross violations will be contingently accepted. This may be called the self-stabilization of law.[Note 35] It is not the same as self-preservation, for an accepted violation would ex hypothesi still be law. But the content of the existing rules and principles forbid their own violation. The pervasive respect for law assures us that the current content of law will be given effect by and large. Most violations of law are unacceptable in the sociological sense precisely because they are violations of law. In this sense law and acceptability reciprocally influence each other. While acceptance may contingently authorize a clear departure from existing law, more often it will override or amend the rule of recognition in cases where social loyalty to law is indifferent or shaken, and where the content of law is unclear or vacillating. In the expansive range of ordinary cases the provisions and social support of present law reinforce the grip of present law and assure us that the wilder contingencies remain mere theoretical possibilities.
A word on the ambiguity of "contingency" may be in order. I have been speaking of contingent absurdities; but of course even the most ordinary legal enactments and decisions are also contingent. The difference is that the former are not authorized by the existing rules, while the latter are. In the former case the alegal source of legal authority in social acceptance overrules or amends the existing rules, and in the latter case this is not necessary. So while it is "possible" that the law will be obeyed, and "possible" that it will be violated in a way that brings curing acceptance with it, these are two distinct senses of possibility (hence, of contingency). In the phrases "contingent omnipotence" and "contingent immutability" I will use the latter sense. These, then, are an omnipotence and an immutability that are not authorized by existing rules but that are always within the horizon of human, historical possibility, ready to be effected by the same authoritative action and social practice that continually produces law itself.
If both the contingent possibility and historical improbability of forbidden amendments have been sufficiently emphasized, some further wrinkles in the direct acceptance theory may be explored. The contingent power of every rule of change to amend every legal rule gives each rule of change a sort of co-supremacy. In one sense they cannot be conceived any longer as hierarchical, but operate as contingent equals, each able when called to amend its "superiors".
Here precision is necessary. A hierarchy still exists because a hierarchy is still accepted as existing (or rules that define the hierarchy are accepted). The contingent omnipotence of each rule of change does not eliminate their hierarchical arrangement, but merely recognizes the contingent possibility of its abrogation. So long as the contingent power of an inferior rule to amend or repeal a superior is prevented from actualizing (through court decrees, failure of acceptance, etc.), then hierarchy remains valid and binding. The self-stabilization of law assures us that amendment of superiors by inferiors will be the exception, and the highly improbable exception most of the time.
In Section 12.C I outlined a theory of reflexive and irreflexive hierarchies.[Note 36] An irreflexive hierarchy is "straight" in the sense that inferiors never supersede superiors. A reflexive hierarchy displays just such anomalous priorities, normally as exceptions. One way to state the consequence of the direct acceptance theory under discussion is that it makes any hierarchical legal system into a completely reflexive hierarchy. The reflexivity of the hierarchy, partial or complete, is contingent, of course. Each inferior can supersede each superior, but only contingently. Such supersession is not antecedently authorized, but may be validated by contingent future events. This contingent possibility exists in the present, and does not refer to the improbable, contingent future moment when each inferior does supersede each superior. We need not say that the legal system of the United States may become a completely reflexive hierarchy, but that it is one now.
The structure of levels, ranks, and priorities obviously does not collapse by recognizing the present contingent completeness of the reflexivity. That structure is shown in its proper modality, not as a categorical or ahistorical network of logical relations, admitting only those exceptional reflexivities that complex systems are heir to, but as a contingent product of human labor, a human instrument consisting of human practices subject to the tides of human events. The system of levels maintains something of its rule-like quality because violation is admittedly not authorized, and the content of the present hierarchical rules admittedly has power to stabilize itself and interpret attempted exceptions as violations.
The contingent possibility of complete reflexivity is contingently immutable. It may not be eliminated by any adjustment of the system, except contingently, that is, unless acceptance is contingently never mustered for a reflexive exception to the hierarchy. There are some reflexivities in our present hierarchy the checks and balances system itself is the most conspicuous example but complete reflexivity is undoubtedly prohibited in effect by the entire set of rules defining the present hierarchy. This prohibition does not bar complete reflexivity with categorical immutability; even if explicitly self-entrenched, it could aspire only to contingent immutability.
In the debate between the legal realists, who emphasized the individual moral preferences and psychological inclinations of judges, and their opponents, who emphasized the general effectiveness of rules, much heat was lost over which end of judicial decision-making, the subjective or objective, deserved more emphasis. I do not deny that law is largely a matter of rules and principles, and that they function as such by constraining judges or by contributing to a milieu in which judges feel constrained to give them effect. The overriding power of acceptance does not substitute a Rousseauvian "general will" for rules and principles. The importance of redefining law to account for the supersession of rules and principles by outcomes authorized only by acceptance, and then after the fact, may distract attention from the routine operation of rules and principles as rules and principles. It may lead one to believe that proponents of such a view must intend to reduce much law to its terms. But I offer no estimate of the frequency of such supersession except to say that it is not the norm. I speak only of its theoretical importance. By positing or recognizing the overriding power of acceptance and the contingent omnipotence of every rule of change, and consequently the contingent, complete reflexivity of legal hierarchies, I do not mean to give these strange birds prominence in the genera of law.
One of the most improbable events that is contingently possible is the self-resurrection of an AC long thought dead through self-repeal or revolution. The contingent omnipotence of the AC implies that all limitations on its power are contingently revocable. This applies even to repeal. If an AC is repealed and subsequently cited as authority for an amendment that would revive it, then such self-resurrecting, self-authorizing amendment could be validated by acceptance.
The same conclusion may be seen from another perspective. Just as immutable rules are immutable only contingently, so mutable rules are mutable only contingently. Any rule may be immutable if it is contingently never repealed or if a prohibition of its repeal is contingently respected forever. This is the mirror image of the principle that any rule may be mutable if a prohibition of its repeal is contingently violated or repealed. Direct acceptance, in short, implies that all rules have contingent mutability and immutability (they are the same thing), just as it implies that all rules of change have contingent omnipotence.
If every rule has contingent mutability or immutability, then repeals are effective only as long as they are accepted as valid. After a certain point, however, a repealed law is invalid by default, not only by acceptance, as its repeal and even its former existence pass out of the minds of all. But if an anciently repealed law was a rule of change, then its sudden, present self-application, declared by a presently existing body, may contingently be accepted as valid. For these purposes it does not matter whether the old rule of change was self-repealed or superseded by revolution. It is dead only contingently, for its resurrection indeed, its self-resurrection is always contingently possible.
Laws do not apply to parties, to other laws, or to themselves without the agency of living human beings. Hence, if living human beings declared the resurrection of Roman law, and if it were accepted in the appropriately complex sense, then we could easily interpret the phenomenon as a bizarre but coherent act of present law-making authorized by present sources of authority. If the present "agents" of the change declared its authority to lie in the rules or system being resurrected, we could interpret their statement deferentially, but even then contemporaneous acceptance would have authorized ancient rules for present application. In this sense we could always avoid the interpretation of literal self-resurrection, unmediated even by present acceptance. But even the weaker sense of self-resurrection, acknowledging the authority of present acceptance, may be interpreted as present law-making. The contingent immutability of legal rules, then, does not require the ascription of anything as metaphysical or mysterious as continuing, dormant validity to repealed or superseded rules of law.
This raises the question whether revolution differs from ordinary repeal. It seems that neither revolution nor repeal can categorically invalidate any valid rule, but must settle for contingent invalidation compatible with contingent immutability. Moreover, if the contingent omnipotence of rules of change enables them to transmute and repeal even "immutable" rules, it seems they have acquired a power formerly ascribed only to revolution. An act of transmutation, or of violation that is subsequently accepted, seems to do in small what revolution does in large: disregard the rules and trust to an alegal source of authority to cure the breach of continuity.
Indeed, that is how I prefer to see the relation. Revolution and ordinary repeal and transmutation (if transmutation is ever ordinary) differ only in degree, not in kind. According to the direct acceptance theory, ordinary repeals can be valid even if they were not authorized by antecedent law, so long as they were subsequently accepted. Hence, revolution does not always differ from ordinary repeal in breaching antecedent law, since ordinary repeal may (but need not of course) breach antecedent law.
But revolution and repeal will usually differ in the sort of appeal made by proponents for the validity of their act, in the time it takes acceptance to catch up with what they have done, and in the social and psychological causes of the catching-up of acceptance or of the shift in acceptance toward the new rules or regime. Proponents of a change of law that exceeds the current authority to change law will often appeal to "implied" rules or conditions in that authority, and to custom, policies, practices, and precedents that tend to show antecedent legal authority for the change, as opposed to merely normative moral and political support. Revolutionaries typically try the same sort of appeal, but succeed less often and rest on it less exclusively. The difference between a legal and political justification of change is itself a mere matter of degree. The revolutionary more often stakes her case on the policy end of the scale, and the proponent of amendment or repeal on the legal end. Of course major exceptions of both types may be found.
More often than ordinary amendment or repeal, revolution is justified by appeal to the new norms that thereby come into effect (especially if "democracy" is one of them). In the right cases both types of change may be self-justifying in this sense, and with equal validity, but revolutionary change is more often deprived of other legal-seeming justifications and therefore resorts to it more often.
Ordinary legal change that for some technical reason exceeds its authority rarely causes a breach of social acceptance (though notable exceptions exist). No catching up is necessary. A wink and a smooth judicial opinion patch things up perfectly. Revolution typically causes a breach not only of antecedent law, but also of acceptance. There is a time when the people and officials are uncertain who is in control, when no control is yet "effective" in Kelsen's sense of receiving general obedience, or when control is unstable because many citizens would disobey if they believed disobedience could be safe or because the dethroned regime is poised to counter-attack. Finally, acceptance of ultra vires amendment or repeal ratifies what has been done usually because the officials of the system have engineered the change as if it were authorized, either through good faith belief in its legality or in the habituated cynicism of bureaucracies that operate on an "underground" system of rules based mostly on prudence and pragmatism. Acceptance of revolutionary change may be bought by terror, intimidation, appeals to nationalist pride or common alegal aspirations. Acceptance of ordinary amendment and repeal is an amalgam of acquiescence based on ignorance and loyalty based on a belief that nothing is wrong or that any violation is small and justifiable. Acceptance of revolution is an amalgam of acquiescence based on fear and prudence and loyalty based on a belief in the futility of opposition or the superior political and moral content of the new regime.
These crude simplifications are intended to show that ultra vires change of law that is subsequently accepted may be called either lawful repeal (amendment) or revolution. They differ in degree along several spectra, but in kind along none. According to the normative practice doctrine, the congeries of practices that comprises acceptance thereby determines a rule of recognition that distinguishes valid legal rules from everything else. But this is of no help in sharpening the distinction between revolution and ultra vires amendment or repeal. First, any such rule of recognition must equally refuse its imprimatur to revolution and to ultra vires amendment. In fact, it may term the latter "peaceful revolution", especially if its subsequent validation is deemed to be the result of an amended rule of recognition. Moreover, once the ultra vires amendment or revolution were authorized by acceptance, the rule of recognition would equally grant its imprimatur. Second, an acceptance theorist may reject the normative practice doctrine, as I am tempted to do, and refer ultimate questions of authority to the same congeries of practice without distorting the latter by calling it a "rule".
A final, reflexive question should be asked. If the direct acceptance theory requires that there be no categorically immutable rules, then does it follow that there is one categorically immutable rule to the effect that there cannot be others? The answer seems to depend upon whether the direct acceptance theory categorically or merely contingently prevents categorically immutable rules. If the former, then we are left with a principle analogous to Augustine's if there were no eternal truths, it would be eternally true that there were no eternal truths. The true answer is at once simpler and more complex.
Direct acceptance completely precludes categorically immutable rules. If there were one forbidding others, that would be one too many. It does not follow that a categorically immutable rule is contingently possible. The direct acceptance theory is a theory about law, not a set of rules or principles of or within law. If it bars something (does not recognize something), then it does not follow that legal rules bar that something. For an empirical theory of law completely to preclude something is to decide on the evidence that that something does not appear in law, and not necessarily because it is expressly forbidden by a rule of law. Some things are absent without command, descriptively rather than normatively. According to the direct acceptance theory, categorically immutable rules are completely absent from law, not because they are forbidden but because a true description omits them. There is not even one forbidding others.
A legal rule that purported to forbid categorically immutable rules would itself be contingently mutable or immutable. It could be repealed, but its repeal would not thereby enact the possibility of enacting categorically immutable rules. No change of law can enact or permit the enactment of categorically immutable rules because the alegal source of authority of law does not permit it and cannot itself be irrevocably changed by changes of law. Acceptance is that alegal source of authority, and it can serve this role as a "permanent" obstacle to categorically immutable rules even though its status as the alegal source of legal authority is only contingently immutable. Changes of law can replace acceptance with the decrees of a priesthood, military council, or economic elite, but only if such changes are accepted. The contingent immutability of acceptance means that acceptance may always awaken from dormancy and take back the power it once was accepted as having.
So if no categorically immutable rules are possible in law, in what sense are rules of change contingently omnipotent? There is one class of rules (categorically immutable rules) that cannot be enacted, even through the contingent favorable acceptance of future generations. That is true, and if it is a limit on omnipotence, then rules of change possess only a further qualified contingent omnipotence. However, rules of change can still authorize rules of any content at any time, which is more than categorically self-embracing or categorically continuing omnipotence could do. Moreover, they may make rules that are never repealed though only by virtue of a perpetual, contingent failure to repeal. Even irrepealable rules could be made, though only if we mean contingent irrepealability.
While contingently omnipotent rules of change can authorize rules of any content at any time, they cannot authorize rules of any modality, if this is taken to refer to the categorical and contingent modes of mutability. The incapacity of a rule of change to make categorically immutable rules is identical to its own contingent mutability or immutability. The contingent mutability of a rule of change allows it to be amended or repealed, but only with contingent revocability. Thus its own status as contingently mutable bars it from any irrevocable self-limitation which is not itself subject to transmutation. Hence its status bars it from categorically irrevocable self-limitation. But since all categorically immutable rules (ex hypothesi) are categorically irrevocable limitations on the amending power, they are all barred; they cannot be made by the only powers available for making law. Hence, by defining rules of law especially rules of change as contingently mutable, we have already precluded the possibility of categorically immutable rules.
But the property of contingent mutability or immutability in all legal rules is inseparable from the property of contingent omnipotence in rules of change. Both define the maximum legal immutability as one subject to contingent future events, and to that extent as mutable in principle. The property of contingent mutability for rules in general defines this condition from the standpoint of the products of change, and the contingent omnipotence of the rules of change define it from the standpoint of the instrumentality of change. Hence this universal property of contingent mutability implies the impossibility of categorically immutable rules and the necessity of contingent omnipotence of the rules of change; and each of the latter implies each of the other two. Under these conditions it is difficult to conceive the impossibility of categorically immutable rules as a limitation on contingent omnipotence, for the concepts define and imply one another. But certainly if we adopt a broader concept of limitation, then we will find contingent omnipotence limited. For in truth, not even contingent omnipotence can make categorically immutable rules, any more than it could categorically cease being contingent omnipotence.
D. A word on the merits of the direct acceptance theory
My chief task in this work has been to show how law copes with one family of paradoxes. The actual means by which law copes with paradox for example, permitting self-amendment without more ado are of course subject to many interpretations and justifications. As I argued in Section 6, Hart's acceptance theory is one persuasive way to interpret the actual legal methods of coping, but I will refrain from affirming it simply on that ground, for other persuasive interpretations also exist. But clearly the capacity to explain the legality of self-amendment, so intractable to the formalist concepts of reason and law, is a strong argument in its favor. So is its consonance with democratic theory as noted in Section 21.A. As "modified", the modified (direct) acceptance theory is a very powerful explanation of why we cannot and should not bind our successors irrevocably or with categorically immutable rules. The descriptive and normative sides of the theory work in harmony here. Categorically irrevocable or immutable rules would increase the freedom and power of their makers at the expense of their makers' descendants. Maximum freedom across generations consistent with equal freedom requires the impossibility of such rules. But previous theories could not urge this impossibility normatively, or explain it descriptively, without resort to other immutable rules. This goes directly to the merits of the direct acceptance theory.
On other fronts, Hart has forcefully argued the merits of acceptance as an explanans of law. But the merits of direct acceptance deserve an extra word. Ronald Dworkin has made three objections to Hart's acceptance theory, all of which are relevant to my modified theory.[Note 37] First, Dworkin objects that some rules of law are clearly valid and binding even though they are not validated by the rule of recognition. They are binding, Dworkin says, merely "because they are accepted as binding by the community." I agree entirely. Dworkin here points to the chief "modification" by which I depart from the usual interpretation of Hart. I may disagree with Dworkin's assessment that Hart himself denies this wrinkle, but that is unimportant here.[Note 38]
Dworkin's second objection is that the existence of valid rules authorized directly by acceptance shrinks the scope of the rule of recognition. Again I can agree fully. But I note that agreement is unnecessary if the "overruling" or "supplementation" of the rule of recognition by acceptance is held to amend to the rule of recognition.
Dworkin's third objection is directed more to the rule of recognition. If that ultimate rule serves the function that Hart attributes to it and "provides a test for determining social rules of law other than by measuring their acceptance," then it fails, for it collapses into a mere reflection of what people accept. Again I agree. The rule of recognition for Hart is usually not formulated in words but is reflected in the practice of officials in using and ascertaining the law. If it is identical to that congeries of practice,[Note 39]
then it provides no such test at all, beyond the test we should use were there no master rule. The master rule becomes...a non-rule of recognition; we might as well say that every primitive society [thought by Hart to lack secondary rules] has a secondary rule of recognition, namely, the rule that whatever is accepted as binding is binding.
To this I may say in Hart's defense that the practice of officials is not the whole picture of acceptance. The people make an essential contribution even if, as Hart says, they are often ignorant of the law. But I accede to the thrust of Dworkin's objections, and have even sketched the sense in which I believe that acceptance for Hart operates through a rule that whatever is accepted as law is law (Section 7.B). Dworkin is here objecting that acceptance is not mediated by any rule-like device in authorizing law, which is exactly what the direct acceptance theory asserts. This weighs against the rule of recognition (qua rule), of course, but my own version of the direct acceptance theory does not depend upon a rule of recognition. The social practices that comprise acceptance in the appropriately complex sense may simply be called a rule of recognition. But such a move would be vulnerable to Dworkin's objection that the "rule" would offer no test different from acceptance itself. To that extent it would give us a false sense of the formalism of law.
The direct acceptance theory can accommodate what Dworkin calls "principles" more easily than the unmodified theory. The reason is that the direct theory is not committed to the rigid distinction of legal norms from other types a distinction that is implied by the existence of a rule of recognition. The direct acceptance theory denies that law is a mere system of rules. This observation is necessary to disarm the only criticism of the direct theory I have found made by one who generally supports an acceptance theory of legal validity. Hugh Williamson has argued that law is a system or structure of rules and that acceptance of one rule logically requires acceptance of the whole system.[Note 40] Acceptance cannot cease for one rule without a different system becoming the object of acceptance. Hence, acceptance cannot selectively intervene to establish the validity or invalidity of individual rules. This objection is simply inapplicable to a theory that denies that consistency is paramount in law, or that denies that law is a system of rules, or that denies that acceptance is an "all-or-nothing" phenomenon; I make all three denials.[Note 41] In any case Williamson offers no argument for his unusual views of rules, acceptance, or systematicity except the "ordinary language" of lawyers, a test that seems to rule against his own conclusions.
A student of Dworkin's, Gabriel Mosonyi, has extended Dworkin's critique of Hart's theory of acceptance.[Note 42] Mosonyi, like Dworkin, believes the straight acceptance theory is inadequate and offers a few corrective principles and suggestions that, in my terms, favor the direct theory. What I have called "direct acceptance" is very similar to what Mosonyi has called "critical acceptance". Critical acceptance, Mosonyi argues, is the actual stance of most citizens and officials: "they may accept the rule of recognition generally, but reserve the right to reject it in particular cases e.g., where it works injustice."[Note 43] This reserved right to overrule the rule of recognition is just the modification I have drawn (to use the language of the "rule of recognition"). Mosonyi offers independent arguments that primary rules of obligation should be understood to derive their validity, not from a formal test or rule, but directly from social acceptance.[Note 44] This too is consonant with the direct acceptance theory, although I have taken no position on the question of the source of the validity of primary rules. Insofar as the rule of recognition, however, is a mere restatement or formalistic disguise of complex social practices, all that it validates may be considered validated "directly" by acceptance.
"Critical acceptance" is a good name for the sense in which the rules validated by acceptance are contingently mutable and always subject to repeal or, more subtly, to violations that are tolerated or even validated as repeals by acceptance. It is more than serendipity, therefore, that the most careful analysis of acceptable violations of binding law has concluded that acceptance is always capable of overruling the formal rules of a system. The analysis, of course, is Mortimer and Sanford Kadish's Discretion to Disobey.[Note 45]
The Kadishes argue against the "law and order" model of legal rules, according to which mandatory legal rules such as the criminal law demand unqualified obedience, impose an unremitting obligation to comply, and justify punishment for the smallest infraction. Punishment is justified for this model without regard to the defendant's moral defenses, public attitudes and expectations, and the benefits to society to be reaped by the offense or by non-prosecution. One of the Kadishes' chief legal tools in overturning the "law and order" model they call "principles of acceptance". These principles define how the fearsome, mandatory obligations of law are actually to be taken, which is not as unremitting, mandatory obligations.
The Kadishes evidently owe much of their discussion to Hart,[Note 46] but criticize him for silence or obscurity on their central questions: whether the accepted rule of recognition allows departures from "mandatory" rules in exceptional circumstances, and how citizens are to decide this question.[Note 47] They believe that principles of acceptance make up this deficiency of the Hartian rule of recognition. One way in which actual practice differs from the "law and order" model for the Kadishes is that violations may subsequently be validated by acceptance. The Kadishes emphasize the ex post facto application of the justification. In the following passage the "violation" is a judicial holding that exceeds antecedent authority, but in the name of social change; it could be taken as the judgment of an individual deciding to disobey.[Note 48]
[J]ustification may have to wait for subsequent legal developments developments for which the judgment itself may end up providing at least a practical ground. Until the future vindicates it, however, that judgment rests upon a gamble that it is, and will be recognized as, the sort of decision that law ought to be rendering in that kind of case.
The Kadishes conclude that law is not just mandatory rules, but neither is it anarchic acceptance without mandatory rules. It is "the combination of mandatory rules and principles of acceptance," or more precisely, "mandatory rules...tempered by principles of acceptance."[Note 49] This formulation is still imprecise; I believe it is rigorously fleshed out in the concepts of contingent omnipotence, contingent mutability or immutability, and direct acceptance.
Of course, many thinkers not at all concerned to justify anything like the direct acceptance theory have made the point that principles of acceptance or a reserved power to overrule any formal rule by social practices do not abolish mandatory rules, obligations, or the rule of law. The power, even the right, to depart from old rules may be ascribed to common law judges. But as Cardozo said,[Note 50]
The judge, even when he is free, is still not wholly free....He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.'
The direct acceptance theory does not assert that the contingent mutability of all legal rules, or the perpetual possibility that any violation may be ratified by future events, unweaves the fabric of law. Rules and principles function as rules and principles, even though they are subject to overruling by acceptance. This subjection to contingent overruling changes their modality but not their function, and is primarily of interest to historians and philosophers of law, not to officials or citizens. Even when such overruling actually occurs, anarchy is not the result, for the acceptable violation is endorsed by the complex of practices and preferences that comprise acceptance. If that structure constitutes or reflects common morality, then as Mosonyi put it, critical acceptance cannot make "the state of law...any more anarchic than that of conventional morality."[Note 51]
The special capacity of acceptance to tolerate contradiction does not imply that all contradiction must be accepted (Section 21.B). What Cardozo said about legal rules may be said of logical rules in law. That they may in a certain sphere be disregarded or overruled does not at all imply the inevitability or even the permissibility of arbitrary decision.[Note 52] Other theories than the direct acceptance theory can account for the persistence of standards or structure even in areas of "discretion" and in periods of suspension and rapid change. But none can account so well for the standards by which the rules are suspended, or by which a sphere of liberty is carved out. Logical paradoxes are not representative of most occasions and motives for this overruling of positive law by acceptance. But paradoxes are especially sharp cases because they cannot be coped with otherwise. They twist up the very rules of positive law itself. They demand an explanation that accounts for the relaxation of firm positive law and rigid logical principles in law.[Note 53] The rarity of the call upon the capacity for such relaxation does not diminish the need to account for it, any more than a small anomaly of Newtonian physics may be ignored even if the alternative is conceptually revolutionary.
I have articulated a theory of the direct authorization of law by complex social practices summarized under the name "acceptance". I have articulated the theory only as far as necessary to see its healthy effects on the paradox of self-amendment, omnipotence and immutability, democratic theory, and a few other issues in jurisprudence. But I have not given a complete theory of acceptance, for this was not the place to do so. However, to prevent omission of other parts of the theory from causing misunderstanding, I would like to make two points quickly.
First, the direct acceptance merely says that acceptance can, and occasionally does, authorize law directly. It does not make the absurd claim that all authority for all law takes the form of direct acceptance. On the contrary, most laws are directly authorized by other laws.
Second, the direct acceptance theory does not make the absurd claims that all people always know all the facts about their legal system, that they always know their true interests perfectly, or that they always act courageously or even prudently on their true interests. Hence, much acceptance will be ignorant or mistaken. Many of the practices that constitute acceptance primarily, compliance and non-resistance can be coerced by explicit violence, intimidation, and ideological control. The normative side of an acceptance theory must develop these points fully. A legal system is not legitimate simply because it is accepted. The quality and voluntariness of the acceptance may be investigated.[Note 54]
No work of this kind is complete without inquiry into its self-referential consistency. If its conclusion is true, must it be false and vice versa? Does its existence subvert its claim to truth? The theory of direct acceptance is an empirical theory of law, falsifiable by empirical inquiry, but not falsifiable by any change of law. Changes of law may substitute another source of legal validity for acceptance, but only with contingent revocability according to the direct acceptance theory. Acceptance cannot categorically dethrone itself or abdicate, so falsification should not be looked for from that direction. This should not be taken as an a priori part of the theory. For if direct acceptance is actually the alegal source of legal authority, then by its nature it will remain such with contingent immutability. An empirical theory may describe that characteristic without losing its empirical character.
The Kadishes speculate that informing juries of their right to disregard judge's instructions on the law will "reduce the impact of judges' instructions...and invite jury nullification on a greater scale."[Note 55] One might argue that my very exposition may tend to reduce respect for positive law and invite "acceptable overruling" to a greater extent. Possibly no one knows. I take the possibility seriously because some have blamed the American legal realists for the rise of fascism. The posited effect, however, seems just as likely whether my thesis is true or merely influential (falsely believed true). Hence, it is not my thesis that could be self-confirming but, if anything, its exposition. Moreover, if the theory is false, then becoming influential may make it true, as violations, departures, and transmutations are more and more accepted as valid. The authority would be acceptance, but the inspiration could be this (originally false) theory. One might find an analogy in the fact that Kelsen's theories were not cited in English courts until they were needed by former colonies to justify revolution.
Naturally I do not rely upon any anticipated effect of my exposition to prove its content. Nor can I work up a genuine hope (or fear) that this exposition will justify anything that could not otherwise be justified from a more authoritative source (including those I cite on behalf of my thesis). I may have shown a way in which "immutable" rules may be approached by reformers. But if I have, this approach has been noticed before, for I learned it from historical interpretation. If I was wrong that these techniques are already valid law, then they may become valid law by a sort of self-fulfilling prophecy. There is a long tradition, especially in international law, of using the writing of jurists and scholars as an unofficial source of law. I cannot claim even that much authority. My claims as to the validity of transmutation or the contingent repealability of self-entrenchment clauses were supported by cases available to all plaintiffs, even if no cases exist directly on point for many hypothetical extensions of the theory. If I say that the repeal of self-entrenchment clauses is all for the good anyway, I begin a line of defense that I would rather not take to the end.
The only effect of my exposition that I anticipate is a heightened sense of our responsibility for law. If we believe that even part of the origin of law lies in the commands of a deity, in innate and unalterable patterns of behavior, in immutable morality, or in formal logic, then we are masking our responsibility. The truth here may be terrifying. If law is too unwieldy for lay citizens to understand, too expensive for most to use to protect their rights, too slow to adapt to new threats to liberty, then the fault is ours. If the infinitude of untried concepts contains a gem, the job is ours to find it. No rule made by our ancestors is beyond our reach. Admitting that puts the burden of justification on our will.
We did not choose to have every rule of law that we do have, and it distorts things to say we chose when we merely accepted. But we have accepted and tolerated every rule of law that we now have. Through our acceptance we exercise our sovereign power of authorizing law to be law. We are responsible not only for our choices, but also for our weaker, more hidden, thoughtless acts of acceptance. Our freedom to change the law, which is contingently omnipotent, need not lead us to a profusion of self-limiting rules, all contingently immutable, to quell our terror, nor to the mass repeal of the refined product of centuries. However, it should lead to a greater suspicion of formalist and naturalistic excuses for immutability, and a greater vigilence to arrest our lapses into bad faith. As citizens, advocates, legislators, and judges we are bound by existing rules, but not unremittingly or categorically. This essay should help us see that "being bound" by law is a complex idea, an organism of mutually dependent social practices and expectations with no immutable logical bones. We cannot simply throw off law as a fetter, for it is self-imposed for reasons that remain sound, but that deserve constant reexamination. But the form and content of this self-imposed structure of our freedom may be anything at all, contingently; it is up to us.
In the United States there is immense case law supporting the proposition that the federal government is a "limited" one limited by popular sovereignty, federalist principles, a written constitution, the separation of powers, checks and balances, judicial review, bicameralism, periodic election of officials, and supermajority requirements for many important events including constitutional amendment. This is another way to say that the rules that limit the federal government have repeatedly been respected, even while every rule of change down to the power of the Chicago City Council to make ordinances has contingent omnipotence. The rules limiting the federal government have been respected, moreover, even while the federal government has steadily grown in size and power. We did not reach our present position by a series of revolutions, by anarchy, or by willful disobedience. The law grew by a series of small steps. These steps were accepted as they arose, perhaps because everybody thought they were authorized even when they were not, but normally because, without thinking about authority, most found them acceptable.
1. Alf Ross, "On Self-Reference and a Puzzle of Constitutional Law," Mind, 78 (1969) 1-24. [Resume]
2. Ordinary deontic logics the logics of permission and obligation do not suffice for reasons that will appear briefly below. But I am coming to suspect that a temporally indexed deontic logic, capable of describing permissions and obligations that are enacted, amended, and repealed in time, may be made to work. No one has yet applied a temporally indexed temporal logic to the paradox of self-amendment, but for an idea of what such a logic looks like, see L. Thorne McCarty, "Permissions and Obligations: An Informal Introduction," forthcoming, North-Holland. For reasons that will appear, even if temporally indexed deontic logic dissolves the paradox, it cannot do so for the inference model. [Resume]
3. Hicks, J.C., "The Liar Paradox in Legal Reasoning," Cambridge Law Journal, 29 (1971) 275-91. [Resume]
4. Hart, H.L.A., "Self-Referring Laws," in Festskrift Tillägnad Karl Olivecrona, Stockholm: Kunglia Boktryckeriet, P.A. Norstedt and Söner, 1964, pp. 307-16; reprinted in his Essays in Jurisprudence and Philosophy, Oxford University Press, pp. 170-78. [Resume]
5. Raz, Joseph, "Professor Ross and Some Legal Puzzles," Mind, 81 (1972) 415-21. [Resume]
6. Finnis, John M., "Revolutions and Continuity of Law," in A.W.B. Simpson (ed.), Oxford Essays in Jurisprudence, Second Series, Oxford University Press, 1973. [Resume]
7. If a temporally indexed deontic logic that statically described the dynamic change of norms could dissolve the paradox, it would be by rigorously enforcing the requirement of temporal separation. It might succeed at this, but would for that reason violate transtemporal validation. Hence it would not satisfy the inference model.
Also note that the objection based on transtemporal validation applies on both horns of the dilemma, whether we accept or reject the distinction between legal and logical contradiction. [Resume]
8. Mackie, J.L., "Evil and Omnipotence," Mind, 64 (1955) 200-12; H.L.A. Hart, The Concept of Law, Oxford University Press, 1961, at 146. [Resume]
9. For opposing views on the question whether the House of Lords can be abolished, see Peter Mirfield, "Can the House of Lords Lawfully Be Abolished?" Law Quarterly Review, 95 (1979) 36-58, and George Winterton, "Is the House of Lords Immortal?" Law Quarterly Review, 95 (1979) 386-92. Also see Winterton's "The British Grundnorm: Parliamentary Supremacy Reexamined," Law Quarterly Review, 92 (1976) 591-617; O. Hood Phillips, "Self-Limitation by the United Kingdom Parliament," Hastings Constitutional Law Quarterly, 2 (1975) 443-78; and Ilmar Tammelo, "The Antinomy of Parliamentary Sovereignty", Archiv für Rechts- und Sozialphilosophie, 44 (1958) 495-513. Geoffrey Marshall argues that the English Parliament formerly had continuing omnipotence but has edged toward self-embracing omnipotence; see his "Parliamentary Sovereignty: A Recent Development," McGill Law Journal, 12 (1966-67) 523-27. [Resume]
10. Even if an AC has contingent ominpotence, it may not be supreme or "sovereign". It may share supremacy with unofficial methods of amendment, or actually be inferior to one such as judicial review. Although the paradox of self-amendment does not exist in a strong form for such ACs, reflexivity issues still abound. The federal government of the United States is a reflexive hierarchy in which some inferior rules occasionally supersede their superiors, creating circles in which mutual change and indirect self-amendment can occur. Non-supreme rules of change encounter the same logic in self-amendment as the supreme rule, but at lowered stakes. They will be mutable even without self-amendment (namely, at least by the supreme rule of change), and they will frequently be able to take advantage of wrinkles in the reflexive hierarchy to acquire a limited power over the powers that can change them, if not positively negate the checks and balances of its power by unilateral action. In Section 21.C I will explore the sense in which direct acceptance gives "lower" rules of change co-supremacy with "higher", giving each equally contingent omnipotence and giving the hierarchy complete reflexivity. [Resume]
11. See e.g. Thomas Reed Powell, "Changing Constitutional Phases," Boston University Law Review, 19 (1939) 509-32. Powell believes that the illegality of the present constitution of the United States was cured by several historical accidents; see Appendix 1.D. If the current constitution had been ratified only in the terms it lays down for its own validity, however, Powell would find it an illegal constitution. [Resume]
12. This type of self-amendment has actually occurred, most recently in Pennsylvania in 1967, Minnesota in 1974, Hawaii in 1978, and North Dakota in 1979. [Resume]
13. Neither acceptance nor direct acceptance is equivalent to consent in the classical, Lockean sense. But acceptance is a significant variant of consent, and grounds a similar theory of legitimacy. Unjust laws may be valid by conformity to a rule of recognition and by acceptance, but they might be invalidated by the failure of acceptance even if they conform (otherwise) to a rule of recognition. Moreover, the difficulty of the amending process is a matter of degree that is inversely proportional, but only roughly, to the legitimacy of the system (see Section 2). Many factors complicate the inverse relation of amendatory difficulty and legitimacy, particularly the existence and use of unofficial methods of amendment, ignorance and indifference in the population, and the self-imposed character of some hurdles to amendment. [Resume]
14. This is essentially the position that Hart takes in the essay cited in note 4 above. [Resume]
15. Terminologically, a rule of law that is contingently unamended forever, but continually subject to amendment, should not be called "immutable", at least not without serious qualification. By calling it "contingently immutable" I intend to capture this qualification. It turns out that contingent immutability is equivalent to contingent mutability. [Resume]
16. This is not to say that victims of oppressive laws are to blame for their condition. Any acceptance theory of legal authority and change, when fully worked out, must have a place for (1) ideological acceptance, which lacks the cognitive element of free consent, and (2) involuntary acceptance, which lacks the volitional element. The former is unfeigned, perhaps wholehearted and enthusiastic, but ignorant or delusional, and may contradict the real interests of the acceptors; the latter is qualified and wary, resented acquiescence coerced by violence and the threat of violence. Both are pathological types of acceptance that create pathological legal systems in which legality and legitimacy are both compromised. Acceptance may exist in the fullest sense but then decline, or exist only because it is coerced or ideological. It may be absent, or the citizens who would express dissent may be expelled or silenced. The picture in any given society is not easy to read; my theory does not require that it be easy. But it does imply that legitimacy be a matter of degree tied to the complex fortunes of acceptance, and that where there is no genuine acceptance, but only submission to force, then there is no law, only gangster rule. See Section 2.B.
In a fully worked out acceptance theory, these details would be far more interesting and important than those that pertain to the domestication of paradox. But in the present work, unfortunately, further elaboration is beyond the topic. [Resume]
17. I argue in Section 21.C below that the repeal of an amending clause makes acceptance of its self-resurrection significantly less likely but not categorically impossible. Such self-resurrection now seems on the verge of happening on Colombia. [Resume]
18. Descartes' letters were first brought into the discussion of the paradox of omnipotence by Harry G. Frankfurt, "The Logic of Omnipotence," Philosophical Review, 73 (1964) 262-63. [Resume]
19. In Section 10 I argued that rules inconsistent by content are not rendered consistent by temporal separation, even when one authorized the other. In Section 11 I argued that the specific authorization of a later rule by an earlier rule does not prevent inconsistency between the two rules. [Resume]
20. Lon Fuller, The Morality of Law, Yale University Press, rev. ed. 1969, at pp. 67-68. [Resume]
21. A.M. Honore, "Reflections on Revolutions," The Irish Jurist, n.s. 2 (1967) 268-78 at p. 270. [Resume]
22. I should note that both Fuller and Honore believe that their examples can reasonably be interpreted as free of logical contradiction. I consider each an example of "inconsistency" as defined by the direct or compliance test discussed in Section 12.C. Fuller's example may also, perhaps best, be seen as an "inconsistency" by the deontic test of Section 12.C. [Resume]
23. Dennis Lloyd, The Idea of Law, Penguin Books, rev. ed. 1976, at p. 294. [Resume]
24. The classic statement that policy, not logic, governs the growth of law is Oliver Wendell Holmes, Jr., The Common Law, Little, Brown, and Co., 1881, at pp. 35-36:
The very considerations which judges most rarely mention, and always with an apology, are the secret root from which law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis....[T]he law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism. [Resume]
25. J.D.I. Hughes, "Judicial Method and the Problem in Ogden v. Ogden," Law Quarterly Review, 44 (1928) 217-26 at pp. 218- 19. [Resume]
26. Hughes, ibid. at p. 219. [Resume]
27. Another proponent of the strict formalist or inference model is Ricardo Alberto Caracciolo, e.g. in his "Contradictions in the Legal System," Archiv für Rechts- und Sozialphilosophie, 55 (1979) 457-73. His chief thesis is that legal systems must be consistent in the sense that, for any two contradictory norms, at least one must be invalid. He softens this rigid position by admitting that there is no adequate decision procedure for ascertaining which of two inconsistent norms is valid (a member of the system) and which is invalid (barred or preempted by the other). Hence "we cannot exclude the possibility that two rules may be incompatible for a judge, and may not be for another." Ibid. at p. 462. See also Eduardo Garcia Maynez, "Some Considerations on the Problem of Antinomies in the Law," Archiv für Rechts- und Sozialphilosophie, 49 (1963) 1-14. [Resume]
28. Honore, op. cit. at pp. 270-71. [Resume]
29. A.G. Guest, "Logic in the Law," in A.G. Guest (ed.), Oxford Essays in Jurisprudence, A Collaborative Work, Oxford University Press, 1961, pp. 176-97, at p. 178. [Resume]
30. Cf. Holmes, op. cit. at p. 36:
The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow. [Resume]
31. Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921, at pp. 112-13. On the limited value of legal symmetry expressed by Cardozo in this passage, compare Jack Leavitt, "Scope and Effectiveness of No-Contest Clauses in Last Wills and Testaments," Hastings Law Journal, 15 (1963) 45-91, at p. 91:
The value of laws cannot be determined by their internal consistency or chaos, for legal symmetry is admirable only when its subject matter is equally symmetrical....What if...deserving parties would have been harmed by [a truly logical result]? [Resume]
32. See Section 10, note 1, for some examples. [Resume]
33. Many acts and proposals of self-amendment are criticized on policy grounds relating to democracy, e.g. that they (would) make amendment too difficult or too easy. But the values supporting these objections would not be served by forbidding all inconsistency or all self-amendment. [Resume]
34. "Of what use [is it] to make heroic vows of amendment, if the same old law-breaker is to keep them?" Ralph Waldo Emerson, "Experience," Essays, Thomas Y. Crowell Co., 1962, p. 297. [Resume]
35. Self-stabilization is a property of norms in general. Compare this discussion of the self-stabilization of legal norms with that of language norms in Peter Suber, "The Reflexivity of Change: The Case of Language Norms," Journal of Speculative Philosophy, 3, 2 (1989) 100-129 esp. 107f. [Resume]
36. See also Suber, ibid., at p. 112. [Resume]
37. Ronald M. Dworkin, Taking Rights Seriously, Harvard University Press, 1977, at pp. 42-43. These objections are contained in the chapter, "The Model of Rules I," which had earlier been published in the University of Chicago Law Review, 35 (1967) 14-46. [Resume]
38. Dworkin's examples of law validated directly by acceptance are rules of customary and international law, and the "principles" which he has differentiated from "rules". I believe that Hart acknowledged direct validation by acceptance with regard to the entire class of common law rules decided in cases of first impression (Hart, Concept of Law, Oxford University Press, 1961, at p. 149). [Resume]
39. Dworkin, ibid. at p. 42. [Resume]
40. Hugh Williamson, "Some Implications of Acceptance of Law As A Rule-Structure," Adelaide Law Review, 3 (1967) 18-45, esp. pp. 28, 33.
Michael A. Payne also criticizes Hart's acceptance theory, though on a point not central here. He argues that acceptance cannot ground a concept of legal obligation. Michael A. Payne, "Law Based on Accepted Authority," William and Mary Law Review, 23 (1982) 501-28. [Resume]
41. Note that I need not deny that every legal rule and principle partakes of some legal system. My inquiry does not reach this important question. [Resume]
42. Gabriel Mosonyi, "Legal Obligation, Social Acceptance and the Separation of Law and Morals," Connecticut Law Review, 6 (1973) 36-48. [Resume]
43. Mosonyi, ibid. at p. 38. [Resume]
44. Mosonyi, ibid. at pp. 39-41. [Resume]
45. Mortimer R. and Sanford H. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules, Stanford University Press, 1973. [Resume]
46. Kadishes, ibid. at pp. 191ff. [Resume]
47. Kadishes, ibid. at p. 192. [Resume]
48. Kadishes, ibid. at p. 203. Following this quotation they cite the passage in Hart's The Concept of Law (p. 149) where Hart most clearly acknowledged the capacity of acceptance directly to validate rules that the rule of recognition did not validate. Primarily on the strength of that passage I believe Dworkin and others are wrong to impute to Hart an "unmodified" theory of acceptance. [Resume]
49. Kadishes, ibid. at pp. 211, 217. [Resume]
50. Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921, at p. 141. [Resume]
51. Mosonyi, op. cit. at p. 47. [Resume]
52. See Richard A. Wasserstrom, The Judicial Decision: Toward A Theory of Legal Justification, Stanford University Press, 1961, at p. 24:
I am arguing...that many legal philosophers are surely mistaken if they infer the inherent arbitrariness of the judicial decision process from the limited utility of formal deductive logic [in law]. [Resume]
53. One should not be surprised that lawyers and legal scholars would be reluctant to recognize this need. The need has been recognized by scholars outside law, however, who have contemplated its reflexivities. See Douglas R. Hofstadter, Gödel, Escher, Bach: An Eternal Golden Braid, Basic Books, 1979, at pp. 692-93: to solve reflexivity tangles in law we must turn to the people, to the "general reaction of society". [Resume]
54. See note 16 above. [Resume]
55. Kadishes, op. cit. at p. 65. [Resume]
This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.
Department of Philosophy,
Earlham College, Richmond, Indiana, 47374, U.S.A.
email@example.com. Copyright © 1990, Peter Suber.