Having constructed tests for both previolation and postviolation enforceability, we now have a way of determining whether a right is enforceable in each relevant state of affairs. In the previolation state of affairs, a right is enforceable if the beneficiary rationally believes the requisite probability of preference or indifference is present. In the postviolation state of affairs, a right is enforceable if the amount of compensation and punishment available is morally significant. A right that is enforceable under the appropriate test is a genuine right; a right that is unenforceable is a nominal right. It would be a mistake, however, to think of nominal rights as merely formal and empty, for this will be true only rarely. In most cases, nominal rights, although unenforceable, nevertheless have a certain basic value. This is why it is not an empty gesture to seek the creation of what appear to be unenforceable rights, be they in the form of national declarations of individual rights or international declarations of human rights. Indeed, if people did not intuitively recognize that even nominal rights have value, there would not be such vociferous opposition to their creation on so many occasions. The nature and sources of this value are the issues to which we now turn.

Sources of Previolation Value

One source of basic previolation value for a nominal right is its inherent potential for becoming a genuine right. The mere fact that a right may be currently unenforceable does not mean it must always remain so.