3 - Measuring Enforceability in the Previolation State of Affairs

Summary

Having identified the three critical stages at which enforcement can be measured, and given some attention to what we are looking for at each stage, we can now turn to our detailed examination of how enforceability can be measured, and what measure of enforcement is sufficient. We begin by noting that there are two ways to measure the degree of enforcement available for the violation of any right or other restraint. One is to look at the rights violator, and compare the benefit received or to be received from the rights violation and the burdens imposed or to be imposed through enforcement. This is a measure of the punitive effect of enforcement, or punishment. The greater the ratio of burden to benefit the more likely a potential violator will prefer to remain in the previolation state of affairs and will regret it if he does not. The other measure of enforcement is to look at the party whose rights have been or would be violated, and compare the injury suffered or to be suffered from the rights violation and the benefit obtained or to be obtained through enforcement. This is a measure of the compensatory effect of enforcement, or compensation. The greater the ratio of benefit to injury the more likely the injured party will be indifferent to the violation of his right.

Determining whether the measure of enforcement available is sufficient to render a right enforceable presents a number of questions.