same choice on their own behalf.
386
A good illustration of this comes from the law of contract. Damages are the
standard remedy for breach of contract. Damages are calculated on the basis
of the comparison of
the situation the plaintiff would have been in if the
contract has not been breached (Situation 1) and the situation that the plaintiff
is now in (Situation 2). Damages are compensatory so they are measured,
within certain legal confines, by the financial difference for the plaintiff between
Situation 1 and Situation 2.
Damages are obviously a good remedy in a commercial context, but what
about the case where the motive for a contract is not simply financial. For
example, a party makes a contract for the purchase of a unique work of art.
Here contract law avoids the problem of incommensurability by providing a
remedy that
both indorses and enforces the choice that the party made when
they entered the contract. For whatever reason, which they are not bound to
articulate, the plaintiff wanted the artwork. In these cases contract law forces
the offending party to hand over the work of art by issuing against them the
remedy of specific performance.
Getting By
In practice, though, these difficulties in measurement may substantially
diminish where there is a measurement of some item that may be the major
target of government action. In this case it is possible to make a reasonable
even if not comprehensive analysis of the proposal by measuring dollar input
and specific output. Thus an annual expenditure of $2 million dollars on
vaccinating children against a particular disease may eliminate 125,000 cases of
the disease every year. That is $16 per head. If the disease if fatal, painful or
able to cause permanent harm to the patient, by any human measure the cost is
more than justified in its alleviation of physical and emotional disadvantage and
distress to patients and their families. In addition there will be cost saving in
not having to treat the disease and productivity gains through avoidance of the
disease -
common sense suggests that these savings and gains would easily
outweigh the $16 cost.
Conclusion
Shall I compare thee to a Summer's day? / Thou art more lovely and more
temperate:
Rough winds do shake the darling buds of May, / And Summer's lease hath
all too short a date:
Sometime too hot the eye of heaven shines, / And oft' is his gold complexion
dimm'd;
___________________
386
Craswell, Richard (1998)
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