Laws as an Overarching Concept
When we talk about the laws, we mostly talk about a specific body of rules that is created and enacted by governments. Nevertheless, laws are not confined within this type of rules. Moral rules that we observe in our social lives are also laws influencing the flow of our lives to a great extent. We act in accordance with these rules not to avoid being judged in a court but to avoid being judged by society. The punishment will not be something defined in legislation, instead, it will be a condemnation by other people. Such condemnation is likely to adversely affect one’s status and reputation in society. Another example would be the rules in our workplace. These rules may be written or unwritten, but regardless of how they are communicated to the workers, all people in the workplace observe such rules, maybe not to the fullest extent but to a considerable extent, in order to avoid any unwanted result such as being warned or fired. These results, i.e. the punishment for the breach of the workplace rules, may not be predefined in any form, and they may be determined at the sole discretion of the person who has administrative authority in the workplace. However, at least, the fact that some kind of punishment will be incurred in case of a breach of the workplace rules is known by the workers and functions as a negative motivation that deters workers from breaching the workplace rules.
There is basically only one factor that helps us define a set of rules as laws: the fear of incurring negative consequences. If there is not any negative consequence for the breach of a rule, then such a rule is likely to be ineffective. This factor distinguishes laws from the rules that merely facilitate the functioning of a system or a device such as the rules to be followed while operating a machine. Nevertheless, even such rules may be regarded as laws depending on the consequences of the breach thereof. If, let’s say, the breach of the rules stated in the manual of the machine is likely to cause a malfunction, such rules may be regarded by the user of the machine as laws. Here, I must say that some people may prefer to define laws in a more limited context, and it may be argued that the fear of incurring negative consequences cannot/may not be the only factor that define a set of rules as laws. I, personally, prefer to base this determination on this factor, because, even though there are other factors that may motivate people to observe rules, those factors can only perform as complementary elements. For example, in a workplace, some workers may value the workplace rules as requisite things that facilitate the operation of the company, and based on such approach, these workers may follow the rules. In other words, the fear of incurring negative consequences may not be the only factor that make these workers observe the workplace rules. Likewise, people may observe the moral rules as these rules help maintain order in society. It cannot be denied that moral rules are indispensable elements of our lives that help us have good relations with other people. Nevertheless, only this fact does not help us define the moral rules as laws. Laws require enforcement. The enforcement does not have to physically occur in our lives; indeed, it may be abstract such as the condemnation by the society in case of a breach of the moral rules.
At this point, one might ask: “If the fear of incurring negative consequences is the only factor that defines rules as laws, then how can the laws that regulate commercial relations be regarded as laws?” This question may emerge from the assumption that such laws do not state an explicit sanction or punishment. Indeed, the laws regulating commercial or debtor-creditor relationships may seem to lack a sanction to be imposed on the party that breaches the provision of a contract between the parties or a provision stipulated within the commercial code. However, on the contrary to how they may seem, these laws have sanctions. In this regard, we can use the basic principle “pacta sunt servanda” as an example. Pacta sunt servanda is a Latin term that comes from the Roman Law and means “agreements must be kept.” This principle constitutes the basis of the law of contracts and is still valid today. According to this principle, when two parties enter into an agreement, the obligations undertaken by them must be performed. It is clear that the principle does not provide any information about the sanctions for the non-performance of the obligations stipulated in the agreement. Nevertheless, this does not mean that there will not be any sanctions. Indeed, the non-performance of the obligations of a party will lead to lawsuits, or the implementation of the penal clauses incorporated into the agreement. In other words, the non-performance of the obligations will lead to nuisances for both parties, but particularly, for the one breaching the agreement. Accordingly, parties would desire to avoid such unwanted results. We can see this in many aspects of the law of contracts and other fields of the private law. So, the factor, “the fear of incurring negative consequences” can be seen within this context as well. Nevertheless, once again, I would like to reiterate that I personally prefer to place emphasis on this factor in determining whether different sets of rules in our society may be considered as laws or not; and of course, different approaches may be adopted to reach this purpose.