Punishment, Compensation, and Law: A Theory of Enforceability

by Mark R. Reiff

• ISBN13: 9780521174237
• ISBN10: 0521174236
• Edition: 1st
• Format: Paperback
• Copyright: 2011-03-03
• Publisher: Cambridge University Press

Summary

When it was originally published in 2005, this book was the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations.

Table of Contents

Acknowledgments	p. ix
Introduction	p. 1
The Means of Enforcement	p. 17
Physical Force	p. 19
Strategic Power	p. 22
Moral Condemnation and Regret	p. 25
Social Criticism and the Withdrawal of Social Cooperation	p. 29
Automatic Sanctions	p. 34
Legal Remedies	p. 40
The Goals of Enforcement	p. 45
The Three Critical Stages of Enforcement	p. 45
Previolation Enforceability and the Facilitation of Social Cooperation	p. 47
Postviolation Enforceability and the Facilitation of Social Conflict	p. 67
Acceptance and the Restoration of Social Cooperation	p. 75
Measuring Enforceability in the Previolation State of Affairs	p. 76
The Threat of Punishment and Previolation Enforceability	p. 77
The Promise of Compensation and Previolation Enforceability	p. 98
Measuring Enforceability in the Postviolation State of Affairs	p. 111
The Role of Deterrence	p. 112
Retribution Reconceived	p. 116
Retribution and Postviolation Enforceability	p. 141
Compensation and Postviolation Enforceability	p. 159
Previolation and Postviolation Enforceability Compared	p. 171
The Relationship between Previolation Expectations and Postviolation Practice	p. 175
Previolation Expectations and Postviolation Practice	p. 175
Publicity and Previolation Expectations	p. 181
Uncertainty and Previolation Expectations	p. 188
Limitations on the Means of Enforcement	p. 191
Legal Rights and Legal Remedies	p. 191
Legal Rights and Lawful Remedies	p. 199
The Threat or Imposition of Countersanctions	p. 204
Coda on the Advantages of a Unified Theory	p. 207
Special Problems with Legal Remedies	p. 213
Uncollectability	p. 213
Insurance and Other Forms of Burden Shifting	p. 215
Transaction Costs	p. 221
Nominal Damages	p. 226
Failures of Proof	p. 227
Errors in Determination	p. 229
The Enforcement of Rights in International Law	p. 231
The Value of Nominal Rights	p. 234
Sources of Previolation Value	p. 234
Sources of Postviolation Value	p. 239
Naked Rights and the Provision of Public Reasons for Action	p. 241
References	p. 243
Index	p. 253
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