Why bother?
Logical paradoxes in the strict sense produce statements like those of the Liar ("This very statement is false") that are false if true, and true if false. They resist rational solution or at least divide logicians for centuries of apparently irreconcilable wrangling. What happens when similar paradoxes arise in law?
That is a difficult question, but part of the answer is that paradoxes come and go without much notice and are dealt with without much ado. This fact makes the question important as well as difficult. How law copes with strict paradox sheds light on the nature of legal reasoning and rationality, the nature of legal practicality, and the sense in which law can be reasonable, even "wise", while being illogical in the technical sense.
I select one principal paradox —the paradox of self-amendment— and explore its variations in several Anglo-American jurisdictions and contexts, but mostly in American constitutional law. If a constitution has an amendment clause (a provision describing or prescribing how to amend that constitution), then can that clause be used to amend itself? The question may be widened to embrace the self-application of any legal rule that authorizes any legal change. Is self-amendment paradoxical? If so, can it be lawful? If so, can the logic of law be logical?
Some legal rules govern the change of other legal rules. But even these "rules of change" (as Hart calls them) are changeable, usually by higher level rules of change. When a rule of change is supreme within its own system (as a constitutional rule of change probably is), then it is changeable, if at all, only under its very own authority. The paradox of self-amendment arises when a rule is used as the authority for its own amendment. It is sharper when the rule of change is supreme, sharper still when it is changed into a form that is inconsistent with its original form, and sharpest of all when the change purports to be irrevocable.
Alf Ross has charged that self-amendment in this sense can be reduced to a formal self-contradiction. After considering some obvious and not so obvious objections and subterfuges, I conclude that this is correct. Moreover, Alf Ross and his followers have decided that this contradiction invalidates self-amendment. In one sense this book is an extended meditation on Ross's confidence that what is logically impossible must be legally impermissible. I conclude that this view is factually incorrect and philosophically arrogant.
One task that earlier scholars have not undertaken is to show that self-amendment has frequently occurred despite all contradiction and paradox. It is commonplace and, in fact, not even controversial in legal circles. By all legal tests of lawfulness, self-amendment in the most illogical sense is lawful. Nor have past explorers of these themes asked what law, legal change, legal reason, and legal rules are such that they can tolerate this kind of contradiction while forbidding many other things in the name of consistency.
The principle that what is logically impossible must be legally impossible may be philosophically arrogant and ignorant of legal history, but it is not a simple mistake. It is a new variation on the theme of natural law. Instead of finding that human law depends for its validity on an eternal moral law, this version makes it depend on an eternal logical law. One of the most persistent and persuasive objections to traditional natural law theory applies as well to the new version. If human law can be immoral without ceasing to be law, it seems it can be illogical without ceasing to be law. Law has its own tests of what is law, and those tests validate much that is immoral and illogical. To decide that a transcendent moral or logical test supersedes the legal tests, and can invalidate what is otherwise law and validate or enact what is otherwise utterly tacit, is to transform law into morality or logic and unduly diminish its historical and social dimensions. It is to assert that law reflects human thought and community only at their best and never also at their worst. It is to assert that somehow this human construction has had an immaculate conception, and is never touched by human unreasonableness, historical contingency, and interest.
The present work is in part a critique of the new natural law theory that replaces the traditional moral test with a logical one. I conclude that logic does not legislate a priori for law any more than morality does, although of course law remains perpetually open to logical and moral criticism. To know what the laws are in a society, and what is lawful there, we must look only at legal evidence and social phenomena. We need not consult any moral or logical doctrine, even any that happen to be affirmed unanimously, except to the extent that they influence the concrete legal practices of that society. In particular, I conclude that self-amendment may well be a strict self-contradiction, but the evidence of legal history suffices to show its lawfulness even in the face of logical doctrine. I argue that the only alegal source of legal authority is social practice, not normative principles from morality or logic.
To philosophers of Alf Ross's persuasion it may appear that I am begging the question. By rejecting the a priori principle that (standard) formal logic is the higher law of law, and undertaking a more empirical investigation of the relations of formal logic and law, I have already erred. I argue, however, on the contrary, that the a priori principle that (standard) formal logic governs law begs the question of the nature of law. Inquiry into legal practice, not presumptions in advance of inquiry, should answer the question. Between these two positions it seems that question begging is mutual and unavoidable. If so, then arguments across the gap of this incommensurability are futile. This suggests that cordial suspension of disbelief is the duty of scholarship, not hasty dismissal. This at least has been my attitude toward Alf Ross. In any case, my lapse from the very common philosophical confidence in the dominion of formal logic is motivated by evidence; it is not just another irrational failure to recognize the sovereignty of formalism that others assume a priori. In short, I invite readers who know more logic than law to attend to the peculiarities of law that fly off like sparks from virtually every case and especially from paradoxes like that of self-amendment.
Moreover, my quarrel with Ross's a priori prejudices about law do not reach the utility or universal application of formal logics. I object only to the view that formal models of law are prior to law in the sense that deviating legal practices can be branded unlawful. Other claims on behalf of the universal application of formal logics are both true and harmless. For example, I think it trivially true to say that law (like any reality) is susceptible to formal representations or abridgments whose varying degrees of accuracy and completeness make them useful for various purposes.
Like polygons inscribed in a circle, whose ragged perimeters approach the continuous curvature of the circle as the number of their sides increases, formal models of realities may be accurate to an arbitrary degree, and may perhaps (outside human history) even reach the limiting case of perfect accuracy. But for us formal models are created precisely to be simplifications that are accurate only for a few salient points. To assume that reality is polygonal because one's model is elegant or intelligible is a natural, but comical fallacy.
The paradox of legal self-amendment is just one variation of the broader paradox of omnipotence: how can a power supposed to be omnipotent irrevocably limit itself? The paradox of omnipotence is usually applied to deities, but it can also be applied to omnipotent legal powers, such as the power to amend a constitution. The U.S. federal amending power can change every rule in the American legal system, with the arguable exception of itself. (It has probably never been used to amend itself, depending on what we count as amendment, but more than one defeated proposal would have required strict self-amendment; see Appendix 1.) In that sense it is legally omnipotent within the American system and its use to limit the amending power irrevocably is logically equivalent to the problem of an omnipotent deity making a stone it could not lift or irrevocably assuming a mortal form.
Because the paradox of self-amendment does not arise in strong forms for changes that are revocable, it raises the question what an irrevocable legal enactment could be. Hence the essay also explores the important question of democratic theory whether any legal rules can be strictly immutable or beyond history. Several jurisdictions within the United States and the former colonies of the British Empire have tried to safeguard democracy or some vision of fair procedure by rules that are self-entrenched. A rule is self-entrenched when it is made immutable to legal change by a declaration within the rule itself that says, in effect, "this rule may not be changed". My solution to the paradox of self-amendment shows why such rules are mutable anyway, or why their change is typically approved by courts. It also explains our sense that truly immutable rules would be undemocratic constraints on liberty, even if their content proposed to protect democratic institutions. I argue that self-entrenchment fails, not because it is an undemocratic means to a (contingently) democratic end, but because the nature of law cannot abide it. But I also argue that the nature of law is not independent of the values of the people who make, respect, and disrespect law.
If legal rules that authorize change can be used to change themselves, then we have paradox and contradiction; but if they cannot be used to change themselves (and if there is no higher rule that could authorize their change), then we have immutable rules. Paradox and immutability should create an uncomfortable dilemma for jurists and citizens in western legal systems. It appears that we must give up either a central element of legal rationality or a central element of democratic theory.
I argue both descriptively and normatively that law can tolerate paradox but cannot tolerate immutability. Accepting this conclusion does not compromise a properly nuanced vision of legal rationality, although it does undermine the simplistic vision, sometimes conveyed (if not taught) in law schools, that law is a formal system cursed with content, the civil correlate of mathematics.
There is an urgent practical problem behind self-amendment as well. Central to many theories of democracy is the view that law is legitimate only when endorsed by the consent of the governed. If this is not to be a hollow slogan, we must have some idea of where to look for the consent, or dissent, of the people to their form of government. One of the most important and indicative manifestations of consent is the people's willingness to use the mechanisms of legal change, especially the supreme power of constitutional amendment. Non-use of the power might reveal a certain contentment with the unamended constitution, and use of it might reveal a certain contentment with the established channels of change and the current form of the constitution. But clearly the inference from use and non-use of the amendment power to consent is only valid if certain conditions are met. For an onerous or unfair procedure could thwart amendment long after desire for change became widespread and intense. An amending procedure that was undemanding for a privileged class might result in frequent use that did not reflect the desires of the larger public. Hence, use and non-use of the amending power will not really indicate consent unless the procedure is fair and neither too difficult nor too easy. But to change the fairness and difficulty of the amending procedure are virtually the only reasons to amend the amendment clause. Hence, self-amendment will almost always affect our ability to assess the people's consent to be governed by their constitution and the people's power to alter legal conditions to meet their consent.
Therefore, the permissibility of self-amendment —the chief topic of this essay— is a vital question for democratic theory for two independent reasons. It determines whether there shall be strictly immutable rules in the system, and it affects the evidentiary value of "working within the system" as a manifestation of consent to be governed by that system. Hence, it determines the extent of the people's power to make law and the fairness of holding them bound to the laws already made.
Finally, the demonstration that self-amendment is lawful in the Anglo-American legal tradition disproves a common theory of legal change: the theory that all valid change of law must be authorized by prior, higher legal rules. (I will call this the formalist or inference model.) Aside from denying the possibility of what is actual (namely, self-amendment), the formalist theory has other absurd consequences. It implies that no new legal system could get started. None could break off from another lawfully, and all that broke off unlawfully would be eternally barred from becoming lawful themselves. Any regime to be called lawful must have an infinite genealogy. Because we want to say that there are some lawful regimes, we must be able to explain how they could get started without at the same time making them mere creatures of prior regimes in an infinite series. Some power, be it contract or revolution or some other, must make law ex proprio vigore or from its own strength. Only a theory of permissible self-amendment can explain this fully, and therefore only such a theory can explain legality per se.
In short, the study eventually reaches foundational moral, legal, political, even theological questions, as well as important issues in logic and epistemology. The detailed study of a paradox —any paradox, I am convinced— will blossom in this way.
I say this both to reassure and to warn the reader. At first the paradox looks trivial, perhaps especially to lawyers who are accustomed to dealing with such problems, as noted, without much ado. The detailed exploration of the paradox is not triviality squared. On the other hand, the broader issues of the nature of law and the roles of logic and value in it are not reached soon in the exposition or without a period in purgatory. Law and logic are technical subjects. Necessarily, they must be introduced with appropriate rigor and complexity when the inquiry demands it. Fortunately, this never requires arcana.
I have aimed at an audience of educated people who know little or nothing of either law or logic. No special knowledge of these subjects is presupposed, and all that is needed is given in the text. This is an inter-disciplinary inquiry whose results should be brought to workers in law, logic, philosophy, political science, sociology, and history. Readers who happen to know something, or very much, about law or logic must forgive the degree of over-explanation that affects them. No one, I hope, will forgive any degree of under-explanation.
One consequence of the need to introduce the logic and law needed for non-experts is a lengthy introduction. Sections 1 and 2 might be skipped by any reader who judges from their titles that they are unnecessary. Each offers reflections considerably beyond a merely factual preparation, but neither is necessary to the development of the paradox, which begins in Section 3.
Discussion of the paradox is greatly facilitated if I am allowed to speak of legal rules. However, the paradox itself implicates the question whether and in what sense laws are rule-like. If laws are rule-like in the manner of logical rules, then the requirement of consistency will be absolute and the equation of logical and legal validity will be supported. On the other hand if laws are rule-like in the manner of rules of etiquette or custom, then their partial indeterminacy will prevent any rigid application of a consistency test and, in addition, the acceptance of inconsistent rules may be a genuine part of the phenomenon to be explained rather than explained away.
I give myself the license to use the word "rule". But I also alert the reader not to prejudge the question of that rule-like character by my use of words nor to allow me to do so. I have tried not to assume or exaggerate the rule-like character of law in the process of subjecting the paradox of self-amendment to logical analysis. One of my conclusions is that laws lack many of the properties found in the rules of logic, mathematics, and games (see especially Section 21). This conclusion is not subverted by use of the word "rule" to refer to laws, but I would not want the reader to think that this important question was unaddressed or left to be determined by the default of common word usage.
Outline
Section 1 is a brief introduction to paradoxes, why they cause consternation in logic and mathematics, and why they might or might not do so in law. Section 2 introduces the remarkable clauses in constitutions that authorize amendment, and tries to show why they are important to law and legal change, both in theory and in practice. The importance of amending clauses to sovereignty, justice, democracy, and peaceful evolution will only occasionally be touched in later sections; after Section 2 it will be presupposed. Together Sections 1 and 2 provide the background in logic and law for the rest of the inquiry.
Section 3 poses the question whether amending clauses may authorize their own change. If amending clauses do not apply to themselves, then their lawful change is apparently ruled out (Section 4); if they do apply to themselves, then their lawful self-amendment is arguably paradoxical (Section 5). This dilemma of immutability and paradox is as central to the book as the narrower exploration of the logic of self-amendment.
Section 6 pauses to outline two rival theories of law essential to the controversy surrounding self-amendment. One, which I call the inference model, is a formalist theory that makes the legal validity of an amendment turn on the logical validity of a deduction that models the amendment. The other, which I call the acceptance model, finds an alegal and alogical source for the authority of law, and hence of amendments, in the sociological fact of a complex sort of public acceptance. Section 7 explicates H.L.A. Hart's version of the acceptance theory. This gives us an articulate alternative to Alf Ross's inference model, and shows us some of the issues that will face anyone who embraces an acceptance theory.
Section 8 frames the dilemma of immutability and paradox, and shows where United States courts have constructed their stand. The concept of immutability leads directly to that of omnipotence, for if any legal power is omnipotent (in some sense) then no legal rule is immutable (in a cognate sense), and vice versa. The section examines the attempts by scholars and plaintiffs to identify immutable aspects of the U.S. constitution, hence limitations on the (otherwise) omnipotent power of the amending clause.
Section 9 carries the inquiry in Section 8 a step further. While Section 8 looked at entrenchment clauses whose alleged immutability challenged the omnipotence of the amending clause, Section 9 explores the entrenchment of the amending clause itself and the possibilities of self-disentrenchment. Or, while Section 8 examined the alleged irrevocable limits on the amending power, Section 9 examines the revocability of all alleged limits.
Most people who hear the paradox of self-amendment described respond that the old and new amending clauses need not be valid at the same time, and hence do not "contradict" each other. Section 10 examines this solution in detail and finds it wanting.
Section 11 criticizes the adequacy of two other responses to the paradox, one holding that self-embracing omnipotence in the amending clause would avoid the paradox, and the other holding that specific authorization for self-amendment in the amending clause would avoid the paradox.
The result of Part One (Sections 1-11) is that the paradox of self-amendment is difficult to banish. It is not dissolved for any existing formal logic or for the inference model of law by any of the usual objections or stratagems. In that sense Alf Ross is vindicated. However, if we abandon (the exclusivity of) formal logics in the interpretation of law, or the inference model of legal change and validity, or both, then the paradox does not arise. Appeal to Hart's acceptance model is one way to do this, but not the only way. Insofar as the acceptance model is plausible, or more plausible than the inference model, Alf Ross is repudiated.
Part Two, especially Sections 12-19, turns aside to examine the same issues as Part One with regard to other, "unofficial" methods of amending the U.S. constitution. While Sections 3-11 somewhat single-mindedly focus on the legal and logical problems of using an explicit amending clause against itself, Sections 12-19 are more broadly concerned with unofficial methods of amending the constitution and their reflexive applications.
Section 12 shows why it is important to the discussion to bring in these unofficial methods of amendment. In order to negate some salient assumptions of Part One, it examines cases of self-amendment in which the amending clause is not supreme and when the new form of the clause is not inconsistent with the old form. To do so it introduces several models of negation and contradiction for law, without which the discussion of whether two laws "contradict" one another remains vague and imprecise.
Section 13 explores the effectiveness of using one amending clause against a second, and the second against the first, and so on, until the desired content is reached. This "see-saw" method may or may not be able to reach any desired content from any initial position, but it does manage to avoid strict self-amendment.
Section 14 treats the amendment and repeal of constitutional rules that expire according to a clause stipulating their expiration date. Section 15 covers the kind of amendment that occurs when a provision is interpreted and reinterpreted by courts. Section 16 deals with the implied repeal of old rules by newly enacted rules that contradict them. Section 17 explores the special case of this in which the new law is a treaty and the old law which it contradicts is some provision of the constitution. Section 18 asks how the right to revolt, which is curiously explicit in many state constitutions, differs from the amending power. Section 19 argues that amendment by desuetude, or obsolescence, seems to occur in the United States although it is officially denied.
For each of the unofficial methods of amendment in Sections 13-19, the question of self-application is raised and historical examples (if any) are discussed. As a result, the book is a fairly complete compendium of the constitutional law relating to constitutional amendment, quite apart from its discussion of paradox.
Section 20 is a collection of reflexivities and paradoxes in law apart from self-amendment. It is a haphazard and personal collection that belongs here only to broaden the scope of this, the first book-length study of reflexivity and paradox in law. I know it is not complete because I have had to restrain myself and omit many variations in order to keep the section from swamping the rest of the book.
Section 21 is a conclusion. It looks back over Part One to summarize the argument, and looks ahead to the oddities and difficulties facing the position I have taken. The summary (21.A) can be read before or independently of the rest of the book, or afterwards to bring the many threads together. In the more exploratory sections I offer an "historicized" modal logic for law that can account for the peculiarities revealed in the text while dispensing with immutable rules.
Three appendices round out the inquiry. The first discusses the unavailing attempts at direct self-amendment at the federal level. The second surveys the many successful cases of direct self-amendment among the states. This is the primary documentation for the claim that self-amendment is commonplace even if it is logically "impossible". The third appendix presents a game of self-amendment.
Notes on the text
Citations to cases, statutes, constitutions and other forms of law are in standard legal form. Citations to books and articles, however, are in the clearer and more complete format of the humanities.
Notes are gathered at the end of each section. I am aware of the maxim that nothing important should be relegated to a note. Nevertheless, my notes are sometimes expansive and discursive, and often contain much more than a bibliographic citation. My maxim was to put any matter in a note that would interrupt the continuity of the main exposition and that would not be the topic of the main exposition elsewhere in the book.
The research on which my inquiry and bibliography are based is thorough up to 1982 when the first draft of this book was finished. After 1982 it is sporadic, as I began to live and work far from a large law library.
The only abbreviation I use with regularity is "AC", for "amending clause".
I follow the practice of American philosophers and Britons generally in using exact quotation. Except in bibliographic citations, commas and periods are included inside quotation marks only when they are part of the quoted source.
I would like to use sex-neutral language. But I find "she or he" and "his/her" to be barbaric constructions, and I cannot always arrange to use plurals and hide behind "they" and "them". My solution is to use "she" and "her" as generic pronouns; this is not sex-neutral, but it is compensatory. If we do this for a few centuries, then we can switch back. Or perhaps by then English will have acquired an elegant set of neutral personal pronouns.
I have tried to use legal Latin as little as possible. But when a Latin phrase, once learned, frees one from long, awkward, or imprecise paraphrase, then I use it. Phrases used just once are defined in context. Here is a quick glossary of those used more often:
- ab initio
- From the beginning. A statute or marriage is void ab initio if some defect in its creation means that it was never legally valid.
- de jure
- Officially, overtly, legally. A method of amendment is lawful de jure if it is recognized, say, in the constitution or a judicial interpretation of the constitution.
- de facto
- In fact, in practice. A method of amendment is lawful de facto if it is actually used or accepted, even if it violates the letter of the law.
- ex proprio vigore
- By its own strength. Contracts or revolutions make law ex proprio vigore if their law-making power need not be recognized by some (other) law to be effective.
- lex posterior principle
- The "later law" principle. In an irreconcilable conflict between rules of the same legal rank, this principle tells us to favor the most recent rule.
- lex specialis principle
- The "specific law" principle. Like the lex posterior principle, but favoring the more specific of the conflicting rules.
- lex superior principle
- The "superior law" principle. In cases of irreconcilable conflict between rules, this principle tells us to favor the rule of superior rank (for example, constitutional rules over statutes) regardless of recency or specificity.
- pro tanto
- For so much, in part, to that extent. Rule A repeals rule B pro tanto if A repeals B only to the extent of their irreconcilable conflict, and leaves the rest of B intact.
- stare decisis
- Stand by the decision. Stare decisis is the name of the common law doctrine to follow precedent or to treat like cases alike.
- ultra vires
- Beyond power or authority. An act or amendment is ultra vires if it is unauthorized or beyond the scope of the power of the body attempting it.
Just to err on the side of completeness: a priori is philosophical, not legal, Latin. It means valid prior to, or independently of, experience. For example, while Aristotle believed that the truths of arithmetic were refined generalizations from experience, Plato thought they were a priori truths.
I gratefully acknowledge a grant from the National Endowment for the Humanities that enabled me to revise this book for publication.
I thank Douglas R. Hofstadter for publishing my game Nomic and other parts of the third Appendix in his column, "Metamagical Themas," in Scientific American in June 1982, and for inviting me to present my work on reflexivity in law in a colloquium at Indiana University in December of that year.
I thank Jean-Pierre Dupuy and Gunther Teubner for inviting me to present the conclusions of this book at a conference in May 1988 on "Paradoxes of Self-Reference in the Humanities, Law, and the Social Sciences" sponsored by the Program of Interdisciplinary Research at Stanford University. I thank the sponsors for permission to use portions of my talk in this Preface and in the Conclusion (Section 21.A). The entire talk is forthcoming in the proceedings of the conference. [It has since appeared and is now available in a web version.]
I thank Anthony Davenport and Bill Polansky for research assistance, and Andrew Roazen and Nathan Treadway for help with laser printing.
I have profited from the comments made on all or part of this manuscript by Robert Bennett, Anthony D'Amato, Howard DeLong, Michael Dorward, Douglas R. Hofstadter, Michael Retter, Harvey Schweitzer, Gunther Teubner, A.L.P. Thorpe, and Subbarao Visweswaraiah.
I gladly repeat my thanks to Frank Lalle, Lee Ann Lowder, Mardell Nereim, Dale Pierson, Cynthia Bowman, and Nancy Vinson for keeping me sane while I studied law.
This book is dedicated to the unemployed members of my profession. The deplorable academic job market that reached its nadir in the mid-1970's destroyed the professional aspirations of thousands of humanists, including hundreds of philosophers. The loss of their voices has seriously weakened the quality of discussion in contemporary philosophy. This book would not exist if the market had not caused me to study law as a hedge against vexatious or exploitive job offers in my primary field. It was an accident that I found law fascinating. I will be happy if the book is good, but I will always think of it as a small contribution next to the good books that we have lost.
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