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

. . .
s of recognition exists: The law is whatever is morally correct. The controversy among judges does not arise over the content of the rule of recognition itself. It arises over which norms satisfy the standards set forth in it. The divergence in behavior among officials is exemplified in their identifying different standards as legal ones does not establish their failure to accept the same rule of recognition. On the contrary, judges accept the same truth conditions for the propositions of law, that is , that a law à in moral truth. (Negative and Positive, 41) This satisfies the arguments that Dworkin brings up while still maintaining the rule of recognition that positivism requires. Dworkin responds to the law-as-convention theory by accusing Coleman of circular logic. "... law as convention ... holds that the authority of law everywhere depends on a fundamental convention of some sort" (Reply, 252). He goes on to say that there is a "doubtful distinction" between controversy in the application of a law and application of the law itself (253). To say that every legal system has rules about how to decide how to apply laws is a given in legal designs. That there can be unwritten primary laws, or conventions, that are
. . .

Some common words found in the essay are:
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Approximate Word count = 2132
Approximate Pages = 9 (250 words per page)

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