Articles, Newsletters and Advisories
The “law.” We all agree we need laws to be a civil society, but like other cornerstones of America’s political and social house — such as “liberty” and “freedom” and “equality” — the “law” is complex and can mean many different things.
For example, the law can mean the statutes found in the United States Code or the West Virginia Code that represents the formal laws passed by the Legislature and signed by the head of the executive branch of government. In West Virginia, the state Legislature — both the Senate and House — just concluded 60 days of crafting, debating, amending, rejecting and passing laws that will either by signed into law or vetoed by Gov. Jim Justice. Those that become a law will become part of West Virginia Code.
The law also means the regulations created by government agencies that are supposed to control the way something is done or the way people behave in order to ensure that the intent of the statute is followed. This law, which has the force and effect of a statute, is not considered or voted upon by elected legislators, which is why some believe that the proliferation of regulations from federal agencies must be checked.
The law also means the common law that forms the basis for many civil lawsuits. Whether a party is “negligent” or a product is “defective” is based upon the common law that has developed through court decisions over the years. The common law of West Virginia has been developed by the Supreme Court of Appeals of West Virginia since we became a state in 1863, and even then, West Virginia adopted the common law of Virginia, which had in turn adopted the common law of England.
The law can, in every context, be messy and unwieldy. One lobbyist mumbled to me when I recently walked into the state Capitol, “Welcome to the sausage factory.” Listening to a legislative committee or a floor session is a good reminder that the process by which a piece of legislation becomes a law can be messy indeed. Anyone caught up in the judicial system, whether criminal or civil, understands that the court system can be expensive and, at times, bewildering. And for those seeking to have a final decision rendered by the West Virginia Supreme Court, the time between the filing of a lawsuit or claim and a final decision can be lengthy.
Yet, the “rule of law” remains a bedrock principle of our democracy, even if, as Winston Churchill famously said, “Democracy is the worst form of government, except for all the others.” Without the law, our institutions, our federal, state and local governments and our society would fall apart. Recent events in Venezuela, where the Supreme Court under the control of President Nicolas Maduro effectively disbanded Congress for a few days before international pressure forced its reinstitution, remind us that President Dwight D. Eisenhower was correct when he observed, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” Certainly, news accounts from around the world — Syria, Afghanistan, South Sudan, Somalia — demonstrate that despotism and violence fill the vacuum when the rule of law is missing.
As the West Virginia Legislature ends its session, a session marked by emotional budget choices, bruising battles over water and environmental issues, as well as difficult and complex discussions about changes to our tax structure, it’s important to remember that in our state and in our country, the rule of law should be — must be — respected. And if you believe that the law should be changed, well, the “sausage factory” will be open again next year.
Mychal Schulz is an attorney in at Babst, Calland, Clements & Zomnir P.C. in Charleston focusing on energy, employment, and commercial litigation. He is a member of the West Virginia Business & Industry Council and sits on the Board of Directors of Leadership West Virginia.