Limitações da Lei (parte II)

I am intrigued by the idea that the manifestation of consent sufficient to adopt a constitution in the first place is the most that can be expected in order to provide continuing authority to that constitution. This means that if amendment is more difficult than the original ratification, then the constitution has lost some degree of authority or legitimacy. The authority of a constitution over generations of citizens who did not ratify it would diminish roughly to the extent that the difficulty they face in amendment exceeds the difficulty of the original ratification. For such citizens, legitimate amendment would be more difficult than a revolution or discontinuity that would establish a new constitution with equal or greater legitimacy than their ancestors had in adopting the old one. If amendment becomes impossible after the first generation, because there is no AC or because courts or tyrants invalidate all attempts under it, then authority under the consent theory would drop to about zero plus any surcharge which citizens accord to rules of law, qua rules of law, before deciding to disobey.

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One of the most important distinctions relating to the paradox of self-amendment and the paradox of omnipotence is borrowed from Hart's discussion of the omnipotent sovereign. An omnipotent parliament, he says, may limit its power to make law, without paradox, if its omnipotence is "self-embracing", and may not do so, at least without paradox, if its omnipotence is "continuing". Self-embracing omnipotence is unlimited power to make law, including power to affect that power. It may be used against itself and lost or limited irremediably. Continuing omnipotence is unlimited power to make law, but not including power to limit that power, thereby insuring that the omnipotence of the entity continues. Self-embracing omnipotence is unlimited but limitable power; continuing omnipotence is limited only to insure that it is (otherwise) illimitable. Self-embracing omnipotence is the power to make law on every subject, and therefore includes laws that diminish this power irremediably, whereas continuing omnipotence is the power to make law at every moment, and therefore excludes laws inconsistent with this very continuity.

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Beings of continuing omnipotence are doomed to life, power, and even doomed to freedom, while beings of self-embracing omnipotence are free to resign, abdicate, and self-destruct. Pliny the Elder said mortals were freer than the gods because mortals could commit suicide. He obviously thought that divine freedom was continuing, and that continuing freedom was inferior to self-embracing freedom. [...] When John Stuart Mill said, "[i]t is not freedom to be allowed to alienate [one's] freedom," he was defining freedom to be a continuing power, and his disagreement with those who would permit people to sell themselves into slavery, become drug addicts, or otherwise freely choose unfreedom, is not so much on the desirability of these acts as on the logic of self-application.

The distinction is very useful, and by extension we may speak of self-embracing and continuing powers to amend. Self-embracing amendment power may amend, limit, or repeal itself, irremediably, while continuing amendment power may not apply to itself, at least to diminish itself irrevocably.

Continuing omnipotence and amendment power are not maximally omnipotent, for there is one family of things they cannot do, namely, limit themselves, violate their immutable limitation and continuity, bind themselves for the future, and so on. But this should not lead us to think that continuing omnipotence and amendment power can augment themselves. For the only way to do that is (1) to repeal their limitation and become self-embracing, or (2) to become capable of repealing their limitation, which is already to be self-embracing. But these would contradict their continuing character and are impermissible for them. That is why this is the paradox of self-amendment, not merely the paradox of self-limitation. Because continuing omnipotence and amendment power can only affect themselves in ways that neither limit nor augment themselves irrevocably, they are restricted to relatively trivial acts of self-amendment. For example, an AC of continuing omnipotence could rearrange and renumber the articles of the constitution, including itself, without affecting the extent of its power.

While continuing omnipotence cannot become self-embracing, the converse is not true. Self-embracing omnipotence can become continuing omnipotence and may even become "partipotence" or of merely finite power.

Peter Suber - The Paradox of Self-Amendment (1990)