Before we embark on our examination of how to measure the degree of enforcement available and what measure of enforcement is sufficient to render a right or other restraint enforceable, we must get a clearer idea of what the concept of enforceability means. An enforceable restraint is one that is operative in the world, but operative in what way? There are many ways that a restraint might have an effect on the world, and before we can determine whether that effect is sufficient to render the restraint enforceable, we must know which of these many possible effects we are trying to achieve. What is it, exactly, that we are trying to accomplish when we seek to make a restraint enforceable? Only after we have identified the goals of enforcement can we begin to determine what means and measure of enforcement are necessary and sufficient to ensure those goals will be met.

The Three Critical Stages of Enforcement

Our first task in identifying the goals of enforcement is to consider whether these goals differ depending on whether the right or other restraint we are examining has or has not yet been violated or has or has not yet been enforced. Because we do not use separate words to distinguish between the enforceability of a right that has not yet been violated and one that has been violated but not yet enforced, it is natural to assume that enforceability means the same thing in both situations, and that whatever goals we are pursuing in one situation we are also pursuing in the other.