Gödel’s Loophole: Replies to Bianchi and Kubas

Two foreign-language works cite my 2013 paper “Gödel’s Loophole”: one in Italian (Bianchi, 2020, available here); the other in Polish (Kubas, 2017, here). Let’s begin with Sergio Bianchi, a professor of financial mathematics at the University of Rome (“La Sapienza”), who explores the thematic links between legal theory and mathematics in his beautiful paper “Matematica e cognizione guirisdizionale” (in Italian with an abstract in English). In footnote 12 of his paper, Bianchi tries to draw a connection between Gödel’s incompleteness theorems and the “self-amendment” argument in my 2013 paper. Respectfully, however, I would reply that the connection between Gödel’s constitutional contradiction (self-amendment) and his famous incompleteness theorems is tenuous at best. In fact, although my work notes Gödel’s interest in self-reference, it does not make direct use of Gödel’s famous theorems.

By contrast, the paper by Sebastian Kubas, a law professor at Jagiellonian University in Kraków, Poland and the author of “The global democratic disorder”(in Polish with an abstract in English), reviews four important books about contemporary liberal democracy: (1) “The Future of Freedom” by Fareed Zakaria, (2) “How Democracy Dies” by Steven Levitsky and Daniel Ziblatt, (3) “The People vs. Democracy” by Yasha Mounk, and (4) a collection of essays edited by Cass Sunstein in “Can It Happen Here? Authoritarianism in America”. He concludes his mega-review of these works by noting “the illusory nature of constitutional precautions against the democratic breakdown, especially the deceptive reliance on judges” (p. 16), and to prove his point, Kubas briefly retells the story of Kurt Gödel’s discovery of a logical contradiction in the U.S. Constitution. As Kubas correctly notes (p. 38, translation via Google), Gödel’s discovery shows “the illusory nature of the guarantees contained [in the Constitution],” since these guarantees can either be amended away or simply ignored.

In two words, my reply to Kubas is: Right on! Moreover, I will join Kubas in asking, Why do so many people — especially law professors, who should know better — put so much trust in judges and in “the Constitution”? The practical problem with judges is that their powers are fairly limited: courts have neither the powers of the sword (i.e. the power to enforce their own judgments) nor the powers of the purse (the powers to tax and spend), to borrow Alexander Hamilton’s apt formulation. By contrast, although constitutions are often designed to limit the abuses of government power and to protect individual rights, the main theoretical problem with “the Constitution” is that its provisions can always be amended (even the so-called “unamendable” ones, as Gödel himself must have discovered) … or ignored.

The judiciary, from the nature of its functions, will always be the least  dangerous to the

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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