This blog post explores the question, “Can public sentiment prevail over the law?” through the drama ‘Legal High Season 2’. Take a deep look at the balance between public opinion, justice, and the law.
Public sentiment refers to the desires or will of the people. While not all citizens share identical views, modern democratic societies operate and evolve based on what the populace generally desires. The authority to review wrongdoings among members of this society, determine what is right, and maintain social order is called judicial power. Judicial power is fundamentally exercised by courts based on the constitution established by the state. While public will and judicial power sometimes align, they can also diverge. Because laws are not perfect, mechanisms to supplement them are necessary, and public will can influence this process. However, when public will and judicial power reach different conclusions, can public will take precedence over judicial power? Can judgments be made prioritizing the thoughts or desires of society’s members over what the law stipulates?
An episode of the Japanese drama Legal High Season 2, aired in the latter half of 2013, explores this very debate. Protagonist Komikado Kensuke and opposing counsel Daigo Minoru discuss the priority between public sentiment and judicial authority in the case of Ando Kiwa. In Episode 9, Ando Kiwa stands trial as the defendant, accused of murdering her husband after remarrying into a wealthy conglomerate family. Her defense attorney, Komikado Kensuke, argues that witness testimony is ambiguous and that it is unclear whether the poison found in the defendant’s room was used in the crime. He further argues for her innocence, stating that the prosecution’s evidence is unreliable, citing points such as the discovery of another poison bottle at the crime scene. However, the prosecuting attorney, Minoru Daigo, labels Ando Kiwa a social menace based on her past socially reprehensible actions. He asserts that the circumstances strongly suggest she is the perpetrator and that public opinion demands the death penalty. He asserts that the state must respond to public sentiment and act according to the people’s will, making it only natural to seek the death penalty for Ando Kiva.
In response, Komikado Kensuke questions whether public sentiment demanding execution simply because Ando Kiva wore expensive clothes and ate expensive food is truly justified, regardless of evidence or testimony. He asks whether something everyone agrees on is automatically right, and whether violence is a justifiable act. This question references the incident where Mayuzumi Machiko, the partner lawyer who previously defended Ando Kiwa, was assaulted by citizens. He then states that if public opinion were always right, trials would be unnecessary, and verdicts should be handed down by judges at the pinnacle of judicial authority, not by citizens invoking public opinion. While the audience applauded Daigo Minoru’s words emphasizing the importance of public opinion and the need to respond to it, only a few people applauded Komikado Kensuke’s remarks. This debate ultimately concludes when the Supreme Court finds issues with the murder conviction of Ando Kiyo and remands the case to the Tokyo District Court. While the final verdict is addressed in the season finale, the discussion on the priority between public sentiment and judicial authority appears only in Episode 9.
Before discussing the priority between public opinion and judicial authority, the scope of public opinion itself must first be addressed. The question of how narrowly or broadly public opinion should be defined must be resolved beforehand. Legal High does not engage in a detailed discussion of the scope of public opinion. However, it refers to the protesters who demanded Ando Kiyoshi’s execution and assaulted Mayuzumi Machiko on the street as representing public opinion. This implies that public opinion encompasses not only the jury’s views but also the thoughts of ordinary people expressed through SNS, online communities, and comment sections on portal sites. Of course, in modern society, people’s thoughts vary greatly depending on their individual circumstances and backgrounds. In reality, communities with differing political, social, and economic leanings often express starkly divergent opinions on the same subject or event. Therefore, it is practically impossible for everyone to hold the same view on any given case. However, assuming there are instances where the majority shares a single public will, we wish to discuss the priority between public will and judicial authority.
In the Ando Kiyo case, Prosecutor Daigo Minoru argues that the shortcomings of the judiciary should be supplemented by the public will, and judgments should be rendered in accordance with the people’s wishes. The shortcomings of judicial authority encompass not only the limitations inherent in existing laws but also new problems arising from societal and technological advancements. For example, SNS impersonation crimes, where individuals unlawfully repost photos or posts from others’ SNS accounts and use them as their own, were difficult to punish due to the absence of relevant penal legislation. To address such legal loopholes, public sentiment can be considered in rulings.
Daigo Minoru asserts that the foundation of the state is its citizens, and laws must respond to their will. This can be interpreted to mean that laws are created and amended based on public sentiment. Indeed, many laws are revised, and new ones are enacted in response to national events. In this process, public opinion can also influence the judiciary. Therefore, Prosecutor Daigo Minoru argues that public opinion can be prioritized over judicial precedent to fill legal gaps and uphold democratic justice.
However, Komikado Kensuke contends that public opinion cannot take precedence over judicial authority. While laws can be created or amended based on public opinion, this is limited to cases following democratic procedures. The situation Daigo Minoru describes, where public opinion takes precedence over the judiciary, amounts to rendering judgments based on public sentiment without legal grounds. Komikado Kensuke states this is nothing more than a national poll. Judgments are a process of determining guilt based on clear physical evidence and testimony. However, in the case involving Ando Kiyo, none of the presented evidence constituted clear physical proof. In such circumstances, rendering a verdict based on public opinion demanding the death penalty runs counter to both the justice and the process of the verdict.
An example of someone wrongly identified as a perpetrator without precise physical evidence is the Boston Marathon bombing case in the United States. Sunil Tripathi, identified as a suspect by netizens at the time, became a target of online attacks from the moment he was named. However, police later apprehended the actual perpetrator. Yet Sunil Tripathi took his own life, and no one apologized to him. An innocent citizen became a victim when public opinion was misdirected.
Of course, reflecting public opinion isn’t always wrong. There’s an anecdote from the Great Depression in the US about a homeless man who stole bread being brought to trial. In this case, the judge ruled that everyone present at the trial should contribute 50 cents, which was then given to the homeless man. According to the letter of the law, punishing the homeless man was correct, but the judge’s ruling stated that we, who had stood by and watched until the homeless man stole the bread, were also guilty. This can be seen as a ruling reflecting the public will of society’s members, or more narrowly, the public will held by the judge. However, such cases are extremely rare. For public opinion to influence a ruling, many conditions are necessary, and there is also the potential for abuse.
Laws cannot be perfect. Loopholes are inevitable and must be addressed. However, judicial authority cannot prioritize public sentiment over maintaining social order and preventing recidivism when rendering judgments. This is especially true when evidence is unclear or public sentiment is not pointing in the right direction. Misguided public sentiment can lead to the sacrifice of many. Therefore, cases where public sentiment takes precedence over judicial authority must be extremely limited.
