Skip to main content Accessibility help
×
Hostname: page-component-77c89778f8-5wvtr Total loading time: 0 Render date: 2024-07-16T14:52:34.955Z Has data issue: false hasContentIssue false

4 - Measuring Enforceability in the Postviolation State of Affairs

Published online by Cambridge University Press:  15 August 2009

Mark R. Reiff
Affiliation:
University of Durham
Get access

Summary

Having articulated a test for determining whether the available measure of punishment is sufficient to render a right enforceable before it has been violated, and an alternative test for determining whether the available measure of compensation is sufficient to render a right enforceable before it has been violated, we must now look at whether these same or some different tests should apply when determining whether a right is enforceable after it has been violated. Recall that in the previolation state of affairs, we wanted to know whether the measure of enforcement available was such that the beneficiary would be willing to incur the risk of violation or, if incurring that risk were unavoidable, whether the beneficiary would be able to experience the risk without feeling unduly threatened and without feeling compelled to adopt elaborate precautionary measures. The amount of punishment available would be sufficient to satisfy this requirement, we decided, if the beneficiary rationally believed that it was enough to make potential violators prefer to remain in the previolation state of affairs. Alternatively, the amount of compensation would be sufficient if the beneficiary rationally believed that it was enough to make her indifferent to any violation that might occur. Our rationale for the sufficiency of punishment test, which we saw was the one most likely to be satisfied in the vast majority of cases, was that a potential violator who preferred to remain in the previolation state of affairs would be unlikely to violate the beneficiary's rights intentionally, and while she might commit an unintentional violation, she would at least have an incentive to take precautions against such violations to the extent this was rational and within her ability to do so.

Type
Chapter
Information
Punishment, Compensation, and Law
A Theory of Enforceability
, pp. 111 - 174
Publisher: Cambridge University Press
Print publication year: 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×