Secondary Rules in the U.S.

Ronald Dworkin and Jules Coleman, over the course of thirty years, engaged in a debate about the source of the power of secondary rules. Dworkin argues that these cannot be social rules, which exist because everyone acknowledges them as the rules, because they are not applied uniformly. He believes that they must be normative rules which have an underlying morality as their basis. Coleman argues that they are social rules, and that the conventions of our legal system give judges the right to fine-tune laws to meet the convergent beliefs of society. The existence of law without morality, and the ability of judges in the U.S. to change them as society begins to apply moral standards to areas in which moral was not previously considered, give the ring of truth to Coleman's arguments.

Hart's interpretation of legal positivism asserts three criteria can be used to determine if a rule is developed by social convergence independent of any moral system. These are:

The rule must be regularly applied to members of the community.

The justification for applying or following the rule is that the rule exists.

Members of the community who do not follow the rule are censured by other members for not doing so because the rule exists, not because it is morally wrong. (Taking Rights Seriously, 50)

Dworkin makes the assertion that, if secondary rules are

indeed social rules, and judges have a duty to uphold them as such, th