• The first paragraph of §III gives a fuller statement of Dworkin’s rights thesis. The reference to institutional rights, which he expands on in the rest of the section, is a key point for distinguishing Dworkin’s view from both legal positivism and a straightforward natural law theory. As will become clear later, although institutional rights need not coincide with background moral rights, considerations of morality can play a role in deciding what institutional rights are. This is because the selection of a conception to fill out a contested concept (see p. 1080) will involve deciding what construction of the character of an institution puts it in the best light. And in the case of legal institutions, that will involve asking what is best from the point of view of what Dworkin sometimes calls “political morality.”

In section IV, which is divided into a number of subsections, Dworkin applies his rights thesis to specific aspects of the law. Section IV.A concerns law whose source is legislation. When reading its introductory paragraphs (pp. 1082f), be sure to note why Hercules is given that name.

• This time we will look only at the first subsection of IV.A, which concerns constitutional law. Its two longer paragraphs (pp. 1083f) deal, respectively, with Hercules’ references to “institutional detail” and to “political philosophy” (to use the terms of Dworkin’s concluding paragraph). Think about the different roles the two play in Dworkin’s view and the difference between the roles he assigns to the two of them and the roles that would be assigned to them by a simple natural law theory.

• In §IV.A.2, think about Dworkin’s sample interpretation of the statute in the “celestial marriage” case (p. 1085) and the interpretation of the bridge charter indicated by the quotation from Justice Morton’s opinion (in note 21 of p. 1086). How do these fit Dworkin’s description of such interpretation in the footnoted sentence on p. 1086? Dworkin fills out this description in the first of the two points he goes on to make (p. 1087). The second point is an important comment on the role of “canonical” language in statutes; note its connection with the difference between policy and principle and with Dworkin’s earlier discussion of political responsibility (on p. 1064).

• In §IV.B.1, Dworkin sets out his view of the differences between statutes and precedent. He first argues that a precedent has a “gravitational force” that goes beyond the “enactment force” determined by the language used to state a rule (pp. 1089-1090). He then argues that this gravitational force must derive from considerations of fairness (pp. 1090f) and that this implies that precedent applies to new cases only by way of arguments of principle and not by way of arguments of policy (pp. 1091-1093).

• Section IV.B.2 explores some consequences of the ideas introduced in §IV.B.1. At its heart is the image of a “seamless web.” Dworkin has no regular contrasting phrase, but the term “patchwork” has been used for a contrasting idea, and it fits with the phrase “piecemeal rationales” that appears in the first paragraph of the section (p. 1093). The contrast is the one Dworkin has pointed to several times (most recently in the argument of §IV.B.1) between the requirements of consistency imposed by arguments of principle and those imposed by arguments of policy (see pp. 1064f for his introduction to the issue).

The section then lays out the considerations involved in interpreting precedent (as Hercules would do it) in a way that you can usefully compare with Hart’s account in The Concept of Law (which is limited to a single paragraph, pp. 134-5).

• 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.