Law in a democracy: an eventual choice between elective dictatorship or mob justice?

As a lawyer, one is hardwired to distinguish between what is legal and what is illegal. One is hardwired to defend those who society may view as despicable for their actions, which may be repugnant to one's sensibilities, but are not illegal. After all, as defenders of democracy, lawyers are hardwired to jealously defend the rule of law, against the rule of sentiment. Aren't we?

Is defending the law exactly the same as defending the rule of law? Or are we actually defending the rule by law? 

This may seem to be a matter of semantics to some. However, the profound distinction between the use of these two little prepositions should become abundantly clear if one considers the meaning of the law as applicable to Oskar Gröning – the accountant of Auschwitz – first during Nazi Germany, and then in the context of his recent trial. He was only working as a bookkeeper of a mass-murdering machinery, which was created by law, through which one charismatic madman ruled. How could Gröning be penalised in Germany for following what used to be German law? 

The conundrum arises because one tends to conflate two different concepts of what the law is. Is the law the black letter of what is written in the statute book by the elected, or is it something more?

If the law is understood to imply the mere black letter, then no one could be tried for what we now regard as the crimes of the holocaust. In this interpretation, democracy would mean no more than an elective dictatorship, in which the elected few rule by law.

Now, it may seem that these issues may have been relevant in the early 1940s, when evil persons had the power to corrupt the minds and actions of millions of people. But is that accurate?

It was instructive to read statements by several rich, famous, and therefore powerful persons in response to the latest exposé about the money they had stashed away in Panama. While some have denied the factual veracity of the allegations, others have sought refuge behind the letter of the law.

What is morally repugnant here is that the rich have used the letter of the law to park resources, tax-free (this is where the question of legality turns fishy), from a country where millions starve, and many of whom starve to death. But a more troublesome question comes to mind: why was such laws that allow for such expatriation of resources, enacted in a democratic country in the first place? Is such a law really the democratic choice of the demos (people) of the cratos (the State)? Or is it only the few at the top of the very wide-based, short pyramid, who have real influence over the black letter of the law?

It may appear that the letter of the law in this case is merely a tool available to the powerful few to rule by law. One may even want to argue, by citing this example that the law should be understood to mean something more than the black letter of it. But if law is understood to imply something more, the obvious question would be: what is that something? Is it the collective conscience of a people at a given point of time, but with retroactive effect? If so, then wouldn’t the rule of law be tantamount to systematised mob justice, which is susceptible to the fads of the day, which are in turn susceptible to being heavily influenced by those with control over resources such as material wealth, information and charisma?