6 - Limitations on the Means of Enforcement

Summary

We have now examined the means by which legal rights may be enforced, the ways in which we can measure the amount of enforcement available through those means, and what measure of enforcement is necessary for a right to be properly considered enforceable at both the previolation and the postviolation stage. Before we can be certain we have identified all the necessary and sufficient conditions for enforceability, however, there is one further issue we must examine. We must consider whether any restrictions apply to the means of enforcement that we may consider in determining whether the requisite measure of enforcement is available. Three possibilities arise. First, we must decide whether a legal right must have a legal remedy in order to be properly considered enforceable, or whether any means of enforcement will do as long as these means, taken together, will produce enforcement of sufficient measure. Second, we must decide whether the available means of enforcement must be lawful, or whether it is possible that even an unlawful means of enforcement, if available, can contribute to the enforceability of a right. And finally, we must consider the extent to which a lawful means of enforcement must also be available as a practical matter for that means of enforcement to be properly included in our enforceability calculation. It is to these issues that we turn our attention next.

Legal Rights and Legal Remedies

Most legal rights have legal remedies. Indeed, it is difficult to think of a legal right that does not offer some legal remedy (at least in theory) as a means of enforcement.