The two parts of this assignment both concern, in different ways, the freedom of judges to go their own way in decisions.
Section IV.B.3 is Dworkin’s theory of mistakes. In “The Model of Rules” (pp. 37ff), Dworkin argued that positivists have too few resources to explain the constraints on judges’ power to find the decisions of other judges to be mistaken, so it is important to see how much freedom he leaves to judges.
• Dworkin’s first topic (pp. 1096f) is not mistakes as such but the degree to which judges are bound by the principles that the authors of earlier decisions cited as their rationales.
• Dworkin then considers mistakes in their own right. He first considers why it can be reasonable for Hercules to conclude there has been a mistake (pp. 1097-1099) and then goes on to consider the theory of mistakes in two parts.
• The first part concerns what remains of the import of legislative and judicial decisions when they are deemed mistakes (pp. 1099f); notice in particular his distinction between gravitational force and “specific authority.”
• The second part (pp. 1100f) is the more interesting for our purposes. It embodies Dworkin’s account of the limits on judicial authority to count previous decisions as mistakes. Notice the two guidelines he states as well as the corresponding maxims.
The final section is the closest thing in “Hard Cases” to chs. 7-9 of Hart; that is, it is the place where Dworkin addresses possible criticisms of his account of adjudication. Dworkin provides no subsections here, but the following is one way of dividing this material into parts.
• Pp. 1101-1103. This is a preliminary discussion of two distinctions, one between the descriptive and the normative aspect of the rights thesis and the other between two ways of relying on one’s convictions.
• Pp. 1103-1105. Here we meet a new character, Herbert (who has the same first name as H. L. A. Hart). Dworkin holds Herbert’s method of adjudication to be open to criticisms which may seem to apply to Hercules but really do not.
• Pp. 1105-1107. Dworkin considers and rejects an objection resting on the potentially controversial character of Hercules’ decisions. Notice the summary on pp. 1107.
• Pp. 1107-1109. Two final sorts of objection to Hercules are considered here: one is that he should defer to popular opinion and the other is that his method of adjudication is inappropriate for merely human judges. Notice the role in Dworkin’s response to each that is played by his view that judges confirm or deny rights.
Of course, think about the objections Dworkin considers and his replies to them, but this is also a good time to think of any objections of your own to Dworkin’s position.