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Texas Wesleyan Law Review
Volume 12, Number 1 (2005) reprinted by permission of the Law Review HARRY POTTER, LAW, AND CULTURE: HARRY POTTER AND THE LAW
J.K. Rowling's Harry Potter novels1 are narratives befitting the conference on The Power of Stories: Intersections of Law, Culture, and [428]
Literature,2 co-sponsored by Texas Wesleyan University School of Law. While not directly about legal themes, Rowling creates a "magical world" complete with laws and legal institutions.3 Hundreds of millions of readers have immersed themselves in this world. As of April 2005, more than 270 million copies of the Harry Potter books were sold worldwide.4 The books have been translated into 62 languages5 and sold in 200 countries.6 More than ten million copies of the most recent installment, The Half-Blood Prince, were printed for the first printing, which may be the largest first edition printing ever for a general interest hardcover book.7 And apparently, children are reading these books. Some 60% of American children between the ages of 6 and 17 have read at least one of the Harry Potter books.8 These numbers led Time to declare the Harry Potter books "the most popular series ever written.”9 The sheer size of the Harry Potter phenomenon is enough to make it worthy of consideration, but its cultural significance is in more than its numbers. While children's literature may be discounted by some law and literature scholars, this conference being a notable exception, children's literature is culturally significant because children are in the process of developing their moral selves, and therefore may be more influenced by stories than would adults.10 Moreover, there are millions [429]
of adults who are devoted Harry Potter fans as well. Eighteen percent of American adults have read at least one Harry Potter book.11 Fans, adults, and children alike, were so devoted that they bought nearly five million copies of The Order of the Phoenix,12 the fifth year, within the first 24 hours of its release.13 This collection of essays about the law and Harry Potter explores the intersections between law, culture, and the Harry Potter stories. The collection begins with a group of essays, consistent with some of the previous legal literature,14 about the limitations of law and legal institutions as depicted in the Harry Potter narratives. The essays by James Charles Smith and Danaya Wright begin by considering the depiction of families in the narratives, and show the limited role of law for family relationships. The essay by Benjamin H. Barton considers a more legalistic institution, the Ministry of Magic, an institution depicted with major failings. The essay by Aaron Schwabach looks at the operation of the legal system through the lens of the "Unforgivable curses" and contends that they show an arbitrariness contrary to the rule of law. Similarly, Joel Fishman's essay explores the arbitrariness of punishment in the narratives. A second essay by James Charles Smith takes an interesting middle ground. It explores the legal status and wizarding conventions applicable to house-elves, and points out the ambiguity in the narratives as to whether the treatment of house-elves is good or bad. Likewise, the essay by Daniel Austin Green uses the narratives to explore the roles of excuse and justification in their relationship with legal authority and rule of law. The next several essays find some positive aspects to the depiction of law and legal institutions in the narratives. The first essay by Timothy S. Hall shows how the rule used to free Dobby, the house-elf, can be used as a pedagogical tool to illustrate the importance of intent in contract law. The essay by Jeffrey E. Thomas suggests that the negative and satirical depictions of law and legal institutions helps readers to focus on the importance of individual accountability in making moral decisions. The essay by Andrew P. Morriss also examines moral decisions. He contends that in spite of legal and institutional limitations, the wizarding world allows for individual moral choice, which is a recognition of the importance of individual liberty. [430]
This group of essays concludes by returning to one of the themes of the Power of Stories conference - the Dick Whittington story.15 A second essay by Timothy S. Hall compares the Harry Potter narratives to the Dick Whittington story, which reflects an interesting cultural evolution from Tudor to modern time. The Harry Potter series opens in the first book, The Sorcerer's Stone,16 with a picture of family life in the Muggle world.17 Harry has lived with his relatives, the Dursleys, on Privet Drive since he was orphaned in infancy at the hands of Lord Voldemort.18 It is summer, and Harry must endure life with the Dursleys awhile longer before he may leave to attend Hogwarts, the wizarding school.19 Each subsequent book starts at the same scene, one year later, preceding another Hogwarts school year. A large part of the humor of the series is seeing how poorly the Dursleys treat Harry. Their mistreatment of Harry is highlighted by a contrast. The Dursleys are raising another son, their biological son, Dudley, who appears close to Harry in age. They lavish attention, praise, and wealth on Dudley. Harry on the other hand is mostly ignored. When the parents do notice him, they mete out criticism and punishment to a boy who is kind hearted and basically well behaved. In their shabby treatment of Harry, do the Dursleys observe or violate recognized norms of family life? Behavioral norms are of many types, and they have multiple sources.20 One often-used classification distinguishes legal norms from cultural and societal norms that are extralegal.21 Today most parents who raise multiple children follow, or attempt to follow, an ethic of equal or equitable treatment.22 Few parents strive for "strict equality," recognizing that each child is unique and different, with needs and desires not necessarily identical to those of siblings. Also, parenting strategies evolve over time as parents gain experience, i.e., the kids "break them in," and their circumstances [431]
change.23 For this reason, a first child's handling is usually not precisely the same as that afforded subsequent children. Nevertheless, most parents generally seek to apportion fairly their attention, encouragement, and resources among the children. From this standpoint, the Dursleys plainly violate widely shared norms. Most parents would not treat Harry the way the Dursleys do, even if he has entered the family not as a biological child but as a nephew, adopted through an informal mechanism. This explains Dumbledore's justifiable outrage in The Half-Blood Prince when he visits the Dursleys to retrieve Harry.24 Harry's mistreatment by his Muggle family does not amount to a legal wrong. Notice that Dumbledore did not threaten the Dursleys with legal proceedings, either in Muggle or Wizard tribunals. The ethic of equitable treatment is societal and lacks a legal basis in Anglo-American family law.25 Family law has many facets; it is an amalgam of legal rules and principles.26 My focus is the lens of property law - in particular, family property norms - although it is also plain that the Dursleys have not violated non-property-based family law norms. Harry Potter gives an illustration of how parents distribute property within a family. What Mr. and Mrs. Dursley do is legal, but unfair. The law does not have an equality principle when it comes to how parents choose to spend money on their children. Dudley is given everything. Harry is given little property - he wears old clothes and sleeps in a cupboard under the stairs.27 The Harry Potter books give us a reason why Harry is given so little. The Dursleys refuse to accept him because he is not their natural child. He is a nephew, who they feel has been thrust upon them as a consequence of his parents' poor choices, which led to their deaths.28 But the legal rule is the same. The Dursleys could choose to treat Dudley much better than Harry, even if both boys were their biological sons. The English doctrine of inheritance known as primogeniture29 illustrates the point. Primogeniture epitomized classic English favoritism to the eldest son, who inherited the parents' real property [432]
to the exclusion of all other siblings.30 England did not abolish primogeniture until 1925.31 Since then, the social attitudes that sanctioned the practice have withered, but have not evaporated completely.32 Today parents may disinherit children, treating them differently after death,33 just as they may treat them differently during life. The only limit the law places on parents' freedom to discriminate in allocating resources unevenly is the duty of support. Here, the Dursleys comply with that standard, as it is commonly interpreted. Harry has clothes, food, and a place to sleep inside. That is all he needs. It does not matter how much Dudley gets. Rowling employs a common literary theme in portraying Harry and Dudley. Dudley is the favored son, but the neglected, discriminated-against child turns out to be the winner. Harry follows in the footsteps of Dick Wittington34 and fictitious characters such as Oliver Twist,35 Jane Eyre,36 and Cinderella.37 The years of misery inflicted upon Harry by the Dursleys helped to forge Harry's character and humble nature. In contrast, the Dursleys showered Dudley with everything. Yet one almost feels sorry for the spoiled brat. His corpulence is a manifestation of excessive wealth. Family wealth does not build character. Rather, it has the opposite effect, leading to sloth and decadence. [433]
Were I a sociologist,38 I would spend a great deal of time expounding upon the different types of families that J.K. Rowling has created in her Harry Potter series,39 from the uptight middle-class Dursleys, to the interracial families of Hagrid and Lord Voldemort, to the upper-crust Black family, and the chaotic working-class Weasley family. But as a legal scholar setting out to explore themes of law in Harry Potter, I am acutely aware of the absence of family law conflicts40 in these different family structures and relationships. There is no divorce, there is no wrangling over custody of children, and there is no apparent legal intervention in the inter-generational transfer of wealth. If there is marriage, it is something that has occurred in the past and either resulted in successful couples like the Weasleys, the Malfoys, the Dursleys, and the Potters; or it resulted in unsuccessful relationships that ultimately ended long before the books began, as with the marriages of Voldemort's parents, the Riddles, which ended by death, and Hagrid's parents, which ended by separation. Yet the series begins with an event that is quintessentially legal: the placement of the orphaned Harry with his Aunt and Uncle Dursley. Rowling's obvious fascination with different family structures and her relatively strong sense of an isolated, private sphere that is free of state intervention seems in keeping with traditional liberal values of the public/private divide.41 Yet her rejection of state interference in the private sphere of the family does not correspond to an autonomous state that is focused on the public sphere. Where liberalism separates the private world of the family from the public world of the [434]
state, Rowling has created strong families and a weak state which seems to be subsumed into a series of family dynasties. Thus, while she does not have family law - i.e., state intervention in the family - she instead has created a family-based state. In exploring this collapsed public/private divide we begin by considering the relation between families and family law in these books. The Sorcerer's Stone begins with Harry's placement with the Dursleys. Here we have an infant child, whose parents have been killed by Lord Voldemort, left on the doorstep of his aunt and uncle's house, just like countless orphans in nineteenth century English literature.42 But unlike nineteenth century England, the Muggle world of Harry Potter has rigid procedures for the placement and adoption of orphans.43 Although the law might presume that placement with blood relatives would be in the best interests of an orphaned infant, there would be home visits, trips to the judge, and reams of paperwork before Harry would spend his first night with the Dursleys in Muggle England today.44 But in Rowling's world, a single wizard, Professor Albus Dumbledore, even without the imprimatur of the Ministry of Magic, and before most people even knew of the Potters' deaths, makes a unilateral decision that Harry should be taken to his aunt and uncle because "[t]hey're the only family he has left now" and, most importantly, that "[i]t's the best place for him.”45 That decision, moreover, is not transmitted through a court document, nor are any instructions for Harry's upbringing given to his new caregivers. As Dumbledore explains: "I've written them a letter.”46 [435]
This event sets the tone for the remainder of the books: family law, at least the family law of the Muggle world, is noticeably absent from the wizarding world Rowling has created. But in the absence of family law, how do intra-familial decisions get made? For instance:
Because of limited space in this collection of essays, there is only time to highlight certain themes and events that help us see how Rowling has essentially flipped the public/private divide on its head. First, I would suggest that many authors, and female authors in particular, are uncomfortable with state intervention in family disputes.48 [436]
In many of the classic English novels of the nineteenth century, a genre Rowling is clearly alluding to in many of the scenes and events of her books, state intervention in family affairs is virtually unknown. Instead, novelists used dramatic plotting to create and solve family tensions. Often, an offending husband died by falling through a weak tread on the stairs, or an errant wife slowly died of brain fever. Death is a novelist's easy solution to discord, especially in a world in which critics decried depictions of family discord because it was believed to encourage family rupture, and therefore social instability, in the world of the readers. Though Rowling is not writing in nineteenth century England, her world of wizardry and magic evokes a very different type of social structure from the twenty-first century Muggle world. It is very much a world in which state power is weak and families tend to their own business. For instance, as we learn in The Half-Blood Prince, Harry inherits No. 12 Grimmauld Place from his godfather because of Sirius' self-executing will. Unlike Muggle wills, which require extensive probate and administration procedures, and which cannot guarantee that the true "will" of the deceased will be done, in the wizarding world a spell identifies who the true beneficiary will be. While Kreacher is loudly exclaiming that he "won't, won't, won't" go to "the Potter brat," Dumbeldore tells Harry to "Give him an order." "If he has passed into your ownership, he will have to obey. If not, then we shall have to think of some other means of keeping him from his rightful mistress.”49 Fortunately, Kreacher does obey Harry's order to "shut up," and Harry is so identified as the true beneficiary, and thus No. 12 Grimmauld Place will not fall into the hands of Bellatrix Lestrange, Sirius's closest relative and murderer. But had Harry's order not worked, because Sirius's will was defective, the house would have passed not by wizarding laws of intestacy, but by "Black family tradition." Dumbledore explains that: [437]
the house was handed down the direct line, to the next male with the name of 'Black.' ... While [Sirius']s will makes it perfectly plain that he wants you to have the house, it is nevertheless possible that some spell or enchantment has been set upon the place to ensure that it cannot be owned by anyone other than a pureblood.50It would seem that "dead hand control”51 is far more alive and well in the wizarding world than in the Muggle world.52 But more important than dead hand control is the fact that wizarding families exist as autonomous institutions that, in many respects, make their own rules and solve their own problems without oversight by a bureaucratic or therapeutic state. It is not clear whether there is no divorce because the presence of magic insures that wizards do not make mistakes in choosing spouses, or because the presence of magic provides a mechanism interior to the family structure for fixing mistakes of this sort. But in any event, magic has apparently made the family unit more autonomous than is true in the Muggle world. At the same time, the strength of the wizarding family is mirrored by a weak and ineffectual state. As explored by other participants in this collection,53 Rowling has created the incompetent and somewhat corrupt Ministry of Magic as a scathing critique of state institutions. Is it any wonder, given the weak, pompous, and easily-swayed Minister Cornelius Fudge, the pedantic bureaucrat Percy Weasley, the dictatorial counselor Dolores Umbridge and the empty-headed Barty Crouch that Rowling does not involve the state in matters of family creation or family breakdown? When the state does become involved, as it does in the operation of Hogwarts in The Order of the Phoenix, we see not only distrust, but also downright corruption as Dolores Umbridge invokes a new ministry directive every time she feels thwarted by the power of the headmaster or the lack of cooperation by the students. The ministry dominates the press and attempts to dominate the educational system in order to control public opinion and academic freedom. Throughout all of the first six books, Rowling has created a state that cannot be trusted with the simplest of matters, much less [438]
with the all-important decisions like the custody of the orphaned Harry. In The Half-Blood Prince, however, Rowling evinces a dramatic shift from her incompetent state in the first five books, to a state that is exquisitely unsuited to fighting the new war being waged by Lord Voldemort. It is perhaps most telling that Rowling begins The Half-Blood Prince with a meeting of the Muggle Prime Minister and the new Minister of Magic, rather than with the usual depiction of Harry's tedious, miserable life on Privet Drive. The shift from the private realm of the Dursley family to the public realm of the state signals a change in emphasis from the relatively isolated and autonomous spheres of family and state to a brave new world in which the private and public worlds merge over a new type of war: a private war against families. Lord Voldemort is not training an army to fight on a battlefield for a nationalistic cause. Instead, he is striking strategically at the heart of individual families in a targeted war against the tenuous power of a weak state made up of independent wizarding families held together only by their common characteristic - magic. The public/private divide that we are accustomed to in the modern Anglo-American world is clearly not Harry's world in which Voldemort's murderous powers are aimed at the individual families of numerous Hogwarts students and Rufus Scrimgour himself asks Harry to become a spokesperson for the Ministry only because his family has made the ultimate familial sacrifice. In the wizard world, power resides in the individual family units and not in the state. But while it might be easy to understand Rowling's personal objections to state interference in the family from her history as a "welfare mother," her incompetent state becomes downright destructive of the social order in The Half-Blood Prince when it cannot keep wizarding families safe. Consider the ridiculous instructions the Ministry distributes to families to develop codes to identify the person they are letting into their home as truly a family member. The absurdity of asking each other pre-established secrets rather reminds one of the U.S. government's admonition to buy plastic sheeting and duct tape in preparation for another terrorist attack.54 As the evil effects of Voldemort's power strikes not at the Ministry but at individual families, the state's inability to battle the diffuse and personalized attacks of Voldemort's war highlights the incongruity of the public/private divide in the wizarding world. Rowling has rejected family law, i.e., the interference of the state in the private sphere, partly because the state is corrupt and incompetent, but also because such interference is dangerous. When the Ministry is actually protecting Lord Voldemort, and Lucius Malfoy has the [439]
Minister's ear, the reader realizes that the only way to protect one's family and loved ones is through private action and personal courage. Despite the many references to Voldemort's prior rise to power as essentially fomenting a war between good wizards and Voldemort's death eaters, we quickly realize that this war is not like military operations between feuding nations. Rather, it is a series of personalized, private attacks in which success comes from essentially private actions: Lily's sacrificing her life for Harry's, Barty Crouch Jr.'s mother giving up her life for her son, and Draco's mother extracting an Unbreakable Vow from Snape to protect her son. People are killed not as soldiers in a traditional war, but as vendettas against Muggle fathers, inter-family feuds (Bellatrix Lestrange and Sirius), and warped notions of the master-servant relations by the sycophantic Nagini and Wormtail. Power lies not in the traditional liberal state, but in the autonomous building blocks of social order - the family. Rowling has flipped the traditional feminist mantra, "the personal is the political,”55 in which personal decisions and personal relations are seen as fundamental expressions of public ordering, to "the political is the personal." In Rowling's world, the war the Ministry is fighting is an upside down attack on private families. Thus, just as she has rejected the fallible state in favor of a naturalized ordering in the wizarding world that, through spells and community acceptance, makes the private world of the family a thoroughly separate realm from the public world of the state, she has made the public state a tool in the war of private, inter-familial power struggles. Rowling's rejection of state intervention in family disputes clearly comes from a profound distrust of the state's motives as well as a rejection of state authority to intervene in the personal realm of family decision-making. Certain things occur in Rowling's world almost by nature, as though it is just a matter of cosmic law that wizard children would be signed up for Hogwarts at birth. Others are structured by consensus among the relevant parties, as the spells over the Black family home that would keep it in the bloodline. And other matters, like Harry's placement with the Dursleys, are a matter of almost-divine intervention by a benevolent bystander. The state not only can do no right, and therefore must be kept away from the important realm of family autonomy, but it actually does harm within the private realm of the family by having become a tool for the personal war Voldemort has waged. Traditional liberalism sees the family as the building block of social order. In the wizarding world, the family unit is the locus of power and consequently the target of Voldemort's attacks. To a great extent, the state has become a pawn in Voldemort's [440]
war to destroy the family. Voldemort's war logically focuses on attacking individual families because his fear of weakness and dependence makes him challenge the strongest of magical powers, the power he constantly overestimates, which is the love of family.56 As the author of perhaps the best selling and most influential children's novels of all time,57 it is well worth considering what Rowling's vision of the wizarding world tells us about our own culture. This essay briefly discussed some of what Rowling tells us about government through her depiction of the Ministry of Magic in the Harry Potter novels.58 In a nutshell, Rowling has very little use for central government, and through satire and later, darker commentaries, draws a portrait of government as a non-democratic, inefficient, and frequently, a flatly dishonest bureaucracy. There are several notable features of Rowling's portrait of the Ministry of Magic. The first is what the Ministry is not. The Ministry is not democratic. At no point in any of the six Harry Potter books is an election mentioned. To the contrary, in The Half-Blood Prince Cornelius Fudge is replaced as Minister of Magic with a reference to his being "sacked," all without reference to an election.59 In conjunction to suggestions that Dumbledore was recruited to be Minister of Magic at one point60 and had later been fired from the Wizengamot, n61 Rowling has repeatedly skipped over opportunities to have elections. The Ministry is not a classic executive, legislative, or judicial body.62 There does appear to be a law-making function, but the descriptions of that process sound more like administrative rule-making than any kind of deliberative or democratic legislative action. Similarly, there is a "Minister of Magic" that heads up the various departments of the ministry, but the minister resembles an agency head more than a President or Prime Minister. [441]
These statements of what the Ministry is not help us to hone in on what Rowling's Ministry of Magic most closely resembles: a modern, western bureaucracy. The interesting thing about Rowling's depiction is that she conflates government and bureaucracy to the point that in the wizarding world there is no government outside of bureaucracy. Given the general unpopularity of bureaucrats and bureaucracy, this choice alone is quite striking. When we consider Rowling's portrait of the bureaucrats themselves, however, we see a truly dark vision of central government. The most obvious example is Cornelius Fudge, a classic "self-interested" bureaucrat if there ever was one.63 When we first meet Fudge he is a caricature of a politician/bureaucrat. He grants Harry special treatment in both The Prisoner of Azkaban and The Goblet of Fire based on his fame, but overall seems to be a genial "Bungler.”64 A dark side to Fudge's favoritism is also suggested: the access and power of the Malfoy family. The end of The Goblet of Fire, and then The Order of the Phoenix, show a substantially different picture. Fudge transforms from a mocking portrait into an out-of-control dictator: he marginalizes Dumbledore and does everything in his power to destroy and discredit Harry. Much of these actions are out of a paranoid fear that Dumbledore and Harry want to depose him. It is clear that all that matters to Fudge is his own power. He sees every new development in light of that goal. Similarly, Delores Umbridge is another power-hungry bureaucrat. Umbridge's rule over Hogwarts is both hilarious and disturbing. She changes the rules with impunity, and is willing to do anything to increase her prestige within the ministry and her control over Hogwarts. The most glaring examples are her torturing of Harry for lying, and her decision to set dementors loose in Little Whinging. Probably the saddest bureaucrat is Percy Weasley. He starts the books as a flawed, but likable social climber and rule-lover, but as a Weasley we have a natural affinity and sympathy for him. By The Order of the Phoenix and The Half-Blood Prince, however, he has abandoned his friends and family in the blind pursuit of prestige and power. Because he is a character we originally root for, the transition is a particularly stark vision of what government does to those who join too wholeheartedly. [442]
Lastly, consider the "good" bureaucrat, Arthur Weasley. He cares about his work and is honest. We are told that he is very low in the pecking order, that he is poorly paid, and that his office is all the way down a dead end hall. The symbolism is clear: there is no quicker route to a dead end in government than being honest and decent. Not only does Rowling criticize bureaucracy and government, she strips away many of the modern defenses of the bureaucratic state. First and foremost defenders of bureaucracy tend to rely upon democratic institutions and elected officials to check any self-interested behavior within government.65 Rowling defeats this notion by eliminating any elections. Another defense disagrees that bureaucrats tend to be self-interested, and argues that bureaucrats tend to naturally care about the areas they govern.66 Rowling's portrait of bureaucrats themselves, however, bars this defense. Lastly, the wizarding world lacks even the potential check of a free press. In The Order of the Phoenix, Rowling makes clear that the Daily Prophet is at least heavily influenced, if not flatly controlled, by the Ministry of Magic. The Daily Prophet is a willing participant in trashing the reputations of Harry and Dumbledore and suppressing the idea that Voldemort had returned. The lack of a free press is quite important: there is no way for the public to even really discover governmental abuses. In short, Rowling presents a uniquely dark vision of central government. Because I assume that the wizarding world is a method of commenting upon our current government and society, I find this portrait somewhat disturbing. There is obviously a great deal of modern skepticism about government, but Rowling presents a relatively extreme version of the libertarian critique of government. As for the ramifications, it is always hard to tell. That being said, do not be surprised to find a substantial uptick of distrust of government and libertarianism as the Harry Potter generation grows into adulthood. Harry's story is a story about law and a society trying to establish a rule of law. The Ministry of Magic's muddling misrule is not quite dictatorship, but it is not fair and just, either. Under the stress of the first war against Voldemort's Death Eaters, the Ministry regime, like [443]
some Muggle governments in similar circumstances, adopted an ad hoc and inconsistent approach to justice.67 In the years of peace since Voldemort's first downfall, the Ministry failed to build working legal structures.ow the Death Eaters are placing the Ministry under stress again, and even the good guys seem to follow personalities rather than rules. One inconsistency in the Ministry's legal regime is the treatment of the Unforgivable Curses. The use of any of these curses on a human being is punishable by life imprisonment in Azkaban.68 The three Unforgivable Curses are the Imperius Curse, which allows the user to control the actions of the victim; the Cruciatus Curse, which causes unbearable pain; and the Killing Curse, which causes instant death. Yet these spells are not necessarily worse, from a moral perspective, than Memory Charms or the Dementor's Kiss. A. The Imperius Curse
Barty Crouch Jr., a Death Eater impersonating Hogwarts Professor Mad-Eye Moody, demonstrates the Unforgivable Curses to Harry's fourth-year Defense Against the Dark Arts class. At first Crouch uses spiders, not humans, as subjects for all three curses, thus complying with the prohibition against the use of the curses on humans - but later he demonstrates the Imperius Curse on the students. Apparently either a Hogwarts Professor or Dumbledore, as Hogwarts headmaster, has the authority to authorize this use of the curse for educational purposes, or else Dumbledore has chosen to disregard wizarding law. "Dumbledore wants you taught what it feels like," Crouch says.69 Crouch might be lying, but he is teaching at Hogwarts under false pretenses - as part of an absurdly elaborate plan to restore Lord Voldemort - and being caught in a lie would expose him. To lie unnecessarily would be a foolish risk. It seems more likely that Dumbledore has actually agreed to Moody's demonstration of the Curse.70 Unlike the Cruciatus and Killing Curses, the Imperius Curse can be overcome by its victim. The Curse is not completely effective on Harry the first time Crouch uses it, and by the end of a single class [444]
session Harry is able to resist it completely.71 Later, he successfully resists the Curse when Voldemort uses it against him.72 Crouch has escaped his own father's Imperius Curse, and Barty Crouch Sr. in turn manages to escape Voldemort's Imperius Curse.73 But Broderick Bode, a Ministry employee, struggles unsuccessfully against an Imperius Curse placed on him by Lucius Malfoy.74 There is a disturbing subtextual message here: Some wizards's wills are stronger than others. The moral logic behind the Unforgivability of the Imperius Curse is straightforward: The Imperius Curse is a crime against free will. What is surprising is not that the Imperius Curse is unforgivable, but that the Ministry so openly tolerates other crimes against free will, particularly the enslavement of house-elves,75 even though enslavement is universally recognized as a crime76 and has been illegal in England for centuries.77 Dumbledore places free will at the apex of his value system: "It is our choices, Harry, that show what we truly are.”78 A number of philosophical reactions to this statement are possible: The characters, most of whom are children, are often moved by forces beyond their control or knowledge; and many philosophers, from fundamentalists to postmodernists, question the very existence of free will.79 But for lawyers what is more worrying is that Dumbledore, like the Ministry he sometimes opposes, also discriminates against house-elves: "Kreacher is what he has been made by wizards, Harry," said Dumbledore. "Yes, he is to be pitied. His existence has been as miserable as your friend Dobby's.”80 This soft racism undermines Dumbledore's earlier assertion. Dobby, despite his suffering, has not chosen to harm anyone, while Kreacher has, despite other options, chosen to ally himself with Death Eaters, to injure Buckbeak, and to betray Sirius to his death. To place all of the blame for Kreacher's crimes on wizarding society seems to [445]
deny the validity of Kreacher's choices. Just as the Ministry's message is "Everyone should have the freedom to choose their actions - except house-elves," Dumbledore's is "Everyone is responsible for the consequences of their exercise of free will - except house-elves.”81 B. The Cruciatus Curse
Crouch next demonstrates the Cruciatus Curse, which causes pain.82 He knows the illegality of this spell particularly well - he was sentenced to Azkaban for life for using the Cruciatus Curse on Frank and Alice Longbottom, the parents of Harry's friend Neville.83 At "trial," despite the glaring conflict of interest, his own father acted as a sort of combination of prosecutor and sentencing judge. The Cruciatus Curse presents an easy case for Unforgivability. Like slavery, torture is universally recognized as a crime,84 and there is no legitimate use for a curse that does nothing other than cause pain and, in some cases, insanity: The Longbottoms are permanently incapacitated. The following year Harry and his friends meet the Longbottoms, in one of the series' most emotionally affecting scenes, while visiting their former Professor Gilderoy Lockhart in the Closed Ward at St. Mungo's Hospital for Magical Maladies & Injuries. The Longbottoms are barely able to communicate with, let alone relate to, their son Neville or his grandmother, Frank's mother.eville's mother attempts to reach him by giving him candy bar wrappers.85 Rather than legal questions, the Cruciatus Curse provides questions about Harry himself. Harry wishes that "he knew how to do the Cruciatus Curse ... he'd have Snape flat on his back like that spider, jerking and twitching ... .”86 Later, after Bellatrix Lestrange kills Sirius [446]
Black, Harry actually does use the Curse on her.87 No one except Bellatrix witnesses Harry's use of the Curse, so he is spared a life sentence in Azkaban - but his choice of that particular curse rather than one that would have rendered her unconscious, or even killed her, raises a serious question here, especially for younger readers: If Harry used the Curse, knowing that it was both wrong and illegal, is Harry still good? And if he is flawed - if he has a touch of evil in his personality - is it still okay to root for him? C. The Killing Curse
The third of the Unforgivable Curses, and the least convincing in its Unforgivability, is the Killing Curse (Avada Kedavra). The illegality of murder is even more universally recognized than the illegality of torture and enslavement. But not all killings are murder, and the wizarding world apparently acknowledges the legality of some killings; the Ministry's regime even seems to have a death penalty. The Ministry's Aurors kill on occasion: The real Mad-Eye Moody makes a wry comment to Dumbledore regarding Moody's part in killing a Death Eater named Rosier,88 and other Aurors apparently rack up an even higher body count than the grim Moody: Sirius Black (sent to Azkaban, without a trial, by Barty Crouch Sr.89) tells Harry that Moody, in apparent contrast to some other Aurors, "never killed if he could help it.”90 In passing Sirius also mentions another Death Eater, Wilkes, being killed by Aurors.91 Ron tells Harry that "loads [of giants] got themselves killed by Aurors.”92 Sirius, Moody, and Ron, however, do not explain how the Aurors killed these giants and Death Eaters. Perhaps they are licensed by the Ministry to use the Killing Curse, although if they were permitted to do so, surely the Aurors Kingsley Shacklebolt and Nymphadora Tonks would use the curse in their battle with a large group of Death Eaters near the end of The Order of the Phoenix.93 On the other hand, there are many other ways to kill people, with and without magic. The Death Eater, Peter Pettigrew, manages to kill a dozen Muggles with a single curse, by causing an explosion.94 A wizard named Benjy Fenwick is found in pieces;95 whatever killed [447]
him, it wasn't the Killing Curse, which leaves its victims "unmarked, but unmistakably dead.”96 Giants kill each other by purely physical violence.97 Centaurs use apparently non-magical bows and arrows.98 In Harry's first year at Hogwarts, Professor Quirrell tries to kill him by casting a spell on his broom, hoping that Harry will fall off.99 Hermione, as a first-year student, is able to set Snape's clothes on fire, another potentially lethal spell.100 In his third year, Harry threatens to kill Sirius Black, a threat that everyone, including Black, seems to find credible.101 While in his sixth year, Harry nearly kills Draco Malfoy with a dangerous but not Unforgivable curse, Sectumsempra.102 Devil's Snare, a magical plant that strangles its victims, can be used for murder: It endangers Harry, Ron, and Hermione in their first year,103 and, disguised as a gift, is successfully used to murder Broderick Bode in the Closed Ward at St. Mungo's.104 Magical creatures, like Salazar Slytherin's basilisk, can be used to kill.105 A snake, possessed by Voldemort, bites and nearly kills Arthur Weasley.106 Sirius Black is apparently killed when a spell knocks him through the veil of death in the Department of Mysteries.107 The killing of another human being is apparently forgivable in some instances,108 but not when the method used is the Killing Curse. There is some sense to this when extremely dangerous instrumentalities are involved. At common law and in many jurisdictions today, murder committed in certain ways, such as by the use of bombs or poison, is treated as first-degree murder regardless of intent or mens rea. In California, for example, murder committed by explosive device is first-degree murder109 and carries a mandatory sentence of either [448]
death or life without parole.110 The Killing Curse may be banned for the same reason bombs are banned: Not because it can kill, but because, for those able to use it, it makes killing too easy. However, there is considerable evidence that the Killing Curse is difficult to use: Barty Crouch Jr. tells Harry's class that "Avada Kedavra's a curse that needs a powerful bit of magic behind it - you could all get your wands out now and point them at me and say the words, and I doubt I'd get so much as a nosebleed.”111 Although there is a considerable amount of killing and attempted killing in the novels,112 the Killing Curse, in fact, is used relatively rarely. Voldemort uses it to kill Harry's parents in a scene often revisited throughout the series; he also uses it to kill Frank Bryce, a Muggle,113 and Bertha Jorkins, a witch,114 and attempts to use it to kill Harry.115 Barty Crouch Jr., posing as Mad-Eye Moody, uses it on a spider.116 Wormtail uses Voldemort's wand and the Killing Curse to kill Cedric Diggory.117 And Snape kills Dumbledore with the Killing Curse.118 The Killing Curse is most often used by Voldemort; Pettigrew performs it with Voldemort's wand, even though he presumably has another wand - the one taken from Bertha Jorkins. In the battle at the Department of Mysteries, the Death Eaters use many spells against Harry's gang, but none uses Avada Kedavra except, at the end, Voldemort.119 It may be that the Killing Curse is too difficult, or takes too much out of its user, to make it useful in combat by any but the most skilled wizards - in which case outlawing it seems less necessary, but makes moral sense in that it protects the weaker wizards from the stronger. [449]
D. The Dementor's Kiss and Other
Executions
While the illegality of the Imperius and Cruciatus Curses makes both legal and moral sense, and the illegality of the Killing Curse might at first seem to be justified by its extreme dangerousness, the Ministry's use of the Dementor's Kiss and Memory Charms undermines whatever logic there is to the Unforgivable Curses regime. The Dementor's Kiss sucks the soul from the victim's body, leaving an empty shell without memory or personality.120 The Kiss is not a spell; it can only be performed by dementors, not by wizards. However, dementors perform the Kiss at the direction of wizards: Cornelius Fudge sends dementors to perform the Kiss on Sirius Black121 and a dementor accompanying Fudge performs the Kiss on Barty Crouch Jr., with Fudge's apparent consent.122 Dolores Umbridge sends dementors to Little Whinging to perform the Kiss on Harry.123 The Dementor's Kiss is a de facto death penalty, yet the Ministry inflicts it on wizards without due process, for reasons of political expedience.124 The situation of house-elves is, not surprisingly, even worse. Not only do they have no right to due process, their execution apparently does not even require the authorization of the Ministry. Their enslavement gives their masters the power over their life and death: Sirius tells Harry about his "dear Aunt Elladora [who] started the family tradition of beheading house-elves when they got too old to carry tea-trays.”125 E. Memory Charms
Similarly, the use of memory charms undermines the logic of the Unforgivable Curses. It is surprising, even disturbing, that the innocuous-sounding Memory Charm, which can erase or modify memories, is [450]
not Unforgivable. The Ministry of Magic routinely dispatches Obliviators to modify the memories of Muggles who have witnessed magical events. This rather cavalier attitude toward Muggles is presented without evident disapproval, as part of the ordinary work of the Ministry. The pompous Gilderoy Lockhart's use of Memory Charms against other wizards and witches, however, is presented as skullduggery, and he gets his comeuppance when his own Memory Charm backfires and wipes out his memories. Memory Charms are dangerous. Mr. Roberts, the Muggle owner of the land on which the Quidditch World Cup takes place, cannot help noticing that his clients are wizards; his memory is modified repeatedly.126 Later, Roberts and his family are captured by Death Eaters and tossed high in the air for some time. The next day, as Harry, Hermione, and the Weasleys are leaving, Roberts has "a strange, dazed look about him, and he waves them off with a vague 'Merry Christmas.'“127 Arthur Weasley assures the children that Roberts will recover, but we do not find out whether he is correct because we never see Roberts again. But when Bertha Jorkins discovers that Barty Crouch Sr. is concealing his son, the Death Eater Barty Crouch Jr., in his home, Crouch Sr. uses such a powerful Memory Charm that Jorkins's memory is permanently damaged.128 Despite the dangers, the use of Memory Charms against Muggles is not limited to the Ministry's Obliviators. "When the worst happens and a Muggle sees [a magical beast], the Memory Charm is perhaps the most useful repair tool. The Memory Charm may be performed by the owner of the beast in question... .”129 The good guys use Memory Charms, too. Kingsley Shacklebolt, an Auror and member of Dumbledore's secret Order of the Phoenix, surreptitiously modifies the memory of a student, Marietta Edgecombe, to prevent her from incriminating Harry. During the multi-character confrontation in which this takes place, both Shacklebolt and Dumbledore intervene to prevent a teacher, the evil Dolores Umbridge, from shaking Ms. Edgecombe.130 Yet Dumbledore speaks approvingly, even admiringly, of Shacklebolt's modification of Ms. Edgecombe's memory; Dumbledore shows no awareness of the hypocrisy inherent in protecting the student from mild physical abuse while applauding the violation of her mind. The modification of Ms. Edgecombe's memory is not harmless, however: Harry sees her "clutching her robe up to her oddly blank eyes, staring straight ahead of her.”131 [451]
She apparently recovers later, although as with Roberts, we do not see enough of her to be certain. The Ministry is obligated, under international wizarding law, to keep the wizarding world secret from the Muggle population as a whole.132 The Ministry's post hoc use of Memory Charms is a sloppy way to fulfill this obligation and, arguably, does not actually fulfill it at all: By the time the Memory Charm is used, the breach of the Statute of Secrecy has already occurred. The inconsistencies in the Ministry's Unforgivable Curses policy are self-serving; spells very dangerous to the public (both Muggle and magical) but useful to the Ministry are not banned, while spells useful to the Ministry's opponents and not particularly useful to the Ministry are banned. At present the Ministry is serving itself rather than any broader constituency; the interests of wizards might be better served by permitting the use of the Killing Curse in self-defense, and would certainly be better served by banning the Dementor's Kiss. The interests of Muggles are not taken into account at all; their memories are erased and tampered with at will to cover up sloppy work by the Ministry. It remains to be seen whether the next year will bring about any improvement in the Ministry's rule, let alone a genuine rule of law. JOEL FISHMAN
J. K. Rowling depicts punishment both by Hogwarts teachers and to a lesser extent governmental criminal punishment in the Harry Potter novels.133 The narratives, however, neither define nor explain how or why certain punishments are determined. Given that a wide range of philosophical arguments for and against punishment (retribution vs.on-retributivist; consequential vs.on-consequential philosophies),134 [452]
one might expect some level of consistency in the narratives. However, the narratives are anything but consistent in the use of punishment,135 which leaves the reader uneasy about punishments in the wizarding world, and perhaps questioning punishment in contemporary society. The narratives extensively portray the use of punishment within the school setting. Like most boarding school stories,136 rewards and punishments play an important role in how students relate to each other as shown in the inter-house rivalries, Quidditch, and the competition for the annual House Cup. The students are awarded points for good behavior and have points taken away for bad behavior. There appears to be no specific code or guidelines for punishment within Hogwarts School. Teachers are permitted to give or take away points for good work, misbehavior, or for no apparent reason, usually ranging from one to sixty points, depending on the seriousness of the infraction or the bias of the teacher. Professor Snape constantly takes points away from Harry, Ron, and Hermione - although Hermione is always winning points from other teachers for her smartness. Even Professor McGonagall, as head of Gryffindor, gives points to and takes points from the main protagonists as needed, e.g., 150 points taken away in The Sorcerer's Stone for being caught out after dark;137 while Dumbledore gives back 170 points at the end of the volume for Gryffindor to win the House Cup. Detention also plays a part in the punishments, such as Ron Weasley's having to polish armor without using magic in The Chamber of Secrets, Harry's having to write his sentences in his own blood for Dolores Umbridge in The Order of the Phoenix, or James Potter and Sirius Black serving double detention for using an illegal hex upon another student in The Half-Blood Prince. Dolores Umbridge is an example of a particularly mean and biased teacher from the standpoint of Harry and his friends. Harry receives at least two weeks of detention from her causing him to miss his Quidditch matches: "I think it a rather good thing that you are missing something that you really like to do. It ought to reinforce the lesson I am trying to teach you." Her imposition of "writing lines," using a pen that drew blood as ink, served as a punishment for both Harry [453]
and other students who talked back to her.138 After a period of time, this results in a scar on the back of his hand that reads, "I will not tell lies.”139 Unknowing of the type of punishment Harry was receiving, Hermione, at one point, says "At least it is only lines ... It's not as if it's a dreadful punishment, really... .”140 Harry knew if he told them he would see a "look of horror" upon their faces. Even worse, from Harry's point of view, is Umbridge's punishment of lifetime banishment from the Quidditch team. Harry and the Weasley twins receive this punishment for fighting Malfoy and other Slytherins.141 Lifetime is, of course, in the eye of the beholder. Once Umbridge is gone, Harry is back on the team as captain in The Half-Blood Prince. Outside of school, the narratives portray the criminal justice system as arbitrary, but also sometimes as incompetent. The Ministry of Magic can recognize when illegal use of magic occurs, but cannot determine always who has done it. This leads to unfair punishment for Harry in two important instances. In The Chamber of Secrets, Dobby's use of the hover charm results in Harry's receiving a warning letter from the Ministry reminding Harry that underage wizards are forbidden to use magic and also that use of the charm could be a violation of section 13 of the International Confederation of Warlocks' Statute of Secrecy.142 In The Order of the Phoenix, at Harry's trial, Minister Fudge does not give credit to Harry's claim that a house-elf committed the crime until Dumbledore offers to have Dobby appear as a witness.or does the Ministry know that Harry had used magic to counter the appearance of dementors in Little Whinging until Harry points this out rather forcefully and Dumbedore effectively defends him. Punishment for crimes can lead to prison, but only a few examples are portrayed in the novels. There appears to be only one prison to send those found guilty of crimes, Azkaban Prison. Morfin Gaunt gets three months for attacking Muggles, while Mundungus Fletcher gets a lesser sentence for stealing. In a capricious effort to show that the Ministry is doing something against Voldemort, Fudge sends Hagrid to Azkaban Prison in The Chamber of Secrets and Scrimgeour sends Stan Shunpike in The Half-Blood Prince, even though both Fudge and Scrimgeour know they do not deserve punishment. There is no recourse for them. Hagrid eventually is released, but Shunpike is still in prison at the end of The Half-Blood Prince. It is also unfair that Voldemort uses memory charms to have Morfin admit to a murder he did not commit causing him to be placed in Azkaban. [454]
The use of an Unforgivable Curse automatically sends a person to Azkaban Prison for life. Death Eaters, like Bellatrix Lestrange or Barty Crouch, Jr., who are loyal followers of Voldemort's, receive punishment for both their past criminal behavior and to prevent future crimes. Lifetime imprisonment protects the community from their escaping and returning to aid their evil master. At first, it appears that Sirius Black's escape poses a direct danger to Harry, but later we find out that Black has been imprisoned wrongly when Harry discovers Peter Pettigrew actually killed the Muggles. However, Black is still wanted by the Ministry. Underage wizards' testimony will not be accepted by the Ministry for proof of his innocence. In our own society, prisoners obtain releases from prison based on DNA evidence proving they were falsely convicted.143 The dementors' role as the Prison's guards also serves to administer the ultimate punishment: death. Attempts to escape will result in the "Dementor's Kiss" that leaves the person worse than dead, an empty body without a soul.144 Although the Dementors sided with Voldemort in the first war, the Ministry did not believe that they would go back to Voldemort once he returned; but they did. Two other crimes that result in punishment are part of the magical world. First, the killing of a unicorn, as Voldemort did in The Sorcerer's Stone to keep alive, results in a cursed life: Only one who has nothing to lose, and everything to gain, would commit such a crime. The blood of a unicorn will keep you alive, even if you are an inch from death, but at a terrible price. You have slain something pure and defenseless to save yourself, and you will have but a half-life, a cursed life, from the moment the blood touches your lips.145For Voldemort, who is trying to gain immortality, the killing of the unicorn is secondary to keeping himself alive. Second, the Unbreakable Vow, as taken by Snape to Narcissa Malfoy, cannot be broken or the person suffers death, as Ron tells Harry about such an episode when he was younger.146 Lesser crimes, for which punishments are not specified, include the failure to sign with the Ministry as an Animagus and the use of Veritaserum. It is interesting, however, that Dumbledore uses Veritaserum to get the truth from Barty Crouch, Jr., while Dolores Umbridge unsuccessfully uses it upon Harry to get information about [455]
Dumbledore.147 The Ministry apparently did not have knowledge of their use, or does not object, because charges are never brought against them. In conclusion, the Harry Potter narratives portray a system that attempts to limit misbehavior through both rewards and punishments. The application of these rewards and punishments, however, is quite arbitrary. Teachers have enormous discretion in giving punishments and rewards. In the criminal realm, the Minister of Magic can follow or bend the law depending on how he relates to specific people. The use of magic is punished depending on who the person is that commits a particular illegal act. Thus, readers come to understand that rule-breaking or criminal behavior may or may not be punished because of an unfair administration of justice by those in charge of the system. Such a portrayal leaves the reader open to questioning today's criminal justice system as well. House-elves, magical creatures with enormous eyes and bat-like ears, are enslaved to one wizarding family for their entire life. These family-elf relationships can span generations. Elves generally have great devotion and loyalty to their wizard families. Their code includes keeping family secrets and never saying anything critical about the family to outsiders. They dress in rags and do not own real clothing. Although elves are not wizards, they communicate and express emotions in human ways. Elves, who misbehave, are physically punished, sometimes by themselves without their masters' intervention. Two of the books have elf emancipation stories. In The Chamber of Secrets, we meet house-elf Dobby, a servant to the villainous Malfoy family. Dobby surreptitiously aids Harry by warning him of a grave threat, earning his gratitude. Harry subsequently engineers Dobby's freedom, taking advantage of a custom enshrined in Wizard law, that a master's gift of clothing to an elf signifies emancipation. During a heated confrontation involving Harry, Dumbledore, and Lucius Malfoy, Harry tricks Malfoy into tossing a sock in Dobby's direction, which Dobby takes up.148 Every system of property law has a set of transfer rules.149 Often but not always those rules are formal. The gift-of-clothing custom represents a formal transfer rule. It is a symbolic act with legal consequences. [456]
Although it has no real-world antecedent of which I am aware, it fits within our social and legal traditions. Socially, historically, and today, specialized clothing often shows a person's employment status, or shows membership in a particular trade or occupation. Members of medieval guilds wore particular clothing.150 Epaulets displayed rank.151 In colonial America, landowners with particular quantity of landholding were allowed to dress a certain way.152 Perhaps this is the base of the saying, "Clothes make the man." Thus, a change in garb logically shows a change in status as slave or servant. Legally, the elf emancipation custom fits within the traditional use of a symbol, or a symbolic ceremony, to transfer or validate property. Throughout history, the law has required acts other than, or in addition to, the mere expression of intent to accomplish property transfers. Ownership transfers of goods and lands required delivery.153 For land, medieval England required a symbolic delivery, known as livery of seisin, in which the owner handed a clump of sod to the grantee.154 A wizard's handing over of clothing to an elf is not so different. Modern law has tended to replace formal rules involving symbols with formal rules requiring a writing,155 but that is just replacing one type of symbol with another. When it comes to the manumission of slaves, various slave-holding societies followed different methods.ineteenth century U.S. slave law generally used paper records for slave transactions, not only manumission but sales and mortgages.156 One symbolic act that sometimes had legal significance was the slave's movement to another jurisdiction, especially when accomplished by the master or with the master's consent.157 Transportation to a new place was the badge of emancipation. In the famous 1772 case of James Somerset, Lord Mansfield held that a slave transported from West Indies to England, [457]
became free the instant the slave breathed the English air.158 The infamous Dred Scot decision raised the same issue: Did the relocation of Dred Scot from Missouri to the territory of Minnesota affect his freedom?159 In The Goblet of Fire, emancipation moves beyond the individual, raising a challenge to the institution. Dobby is now a free elf, but what of all the others? Hermione becomes sensitized to the plight of the house-elves through a house-elf named Winky. Upon investigation, she is shocked to learn that Hogwarts has scores of house-elves, who cook and clean for the students. She promptly launches a crusade, forming the Society for the Promotion of Elfish Welfare (S.P.E.W.) but gets virtually no support from her fellow students at Hogwarts. Is elfin bondage morally justified, or is it as evil as the human institution of slavery? Rowling shows Hermione as a crusader, as an abolitionist. Yet as narrator Rowling does not interject a moral judgment. The reader is left to decide whether Hermione's cause has great merit, is half-cocked, or is somewhere in between. Ambiguity arises for two reasons. First, the proper position of elves in society is unclear. Who are elves, after all? What is their proper relationship with "people" or "wizards?”160 Modern property law freely recognizes property rights in living things.161 The law sanctions the ownership of plants and animals, both in their natural state162 and in genetically modified forms.163 The law also allows the ownership of property related to human beings.164 For example, organs, body tissue, blood, and reproductive materials are the subjects of property.165 Modern law, however, draws the line with respect to property in human beings at what we call slavery.166 [458]
Slavery, as we understand it, relates solely to the enslavement of human beings by other human beings.167 Fantasy fiction permits a fuzzing that we do not have in the real world - or that at least most people do not perceive. In Rowling's fictional world, are we to treat wizards and elves as equals? Are they a different species? Elves do exhibit a number of characteristics that we would call human. They speak; they reason; they have emotions. If elves are not wizards, then perhaps they are not on the same moral plane as wizards. If this is true, then slavery is not the issue. Instead, animal rights perspectives may inform the mistreatment of elves by wizards.168 The second form of ambiguity relates to the elves's behavior when confronted by the S.P.E.W. agenda. Winky and most of the other elves are singularly unwilling to embrace Hermione's call for liberation. What should we make of the elves's acceptance of their station as servants? Is Hermione pressing for a reform that the elves do not want? Is she trying to impose her lifestyle preferences upon them? Are the elves happy? Perhaps they are really employees under long-term contracts, working under conditions that are a bit unusual. Or are the elves, as Hermione believes, brainwashed? Are they akin to human victims of domestic violence?169 If Hermione is right, when and if the elves are liberated, they will have a better life and shall come to realize the value of freedom. We await the finale, Book number 7. "Laws can be changed," said Fudge savagely. [459]
already become the practice to hold a full criminal trial to deal with a simple matter of underage magic!”170While laws can indeed be changed, they are generally expected to be followed, even when in need of change or recently changed, regardless of their merit. This is some formulation of the rule of law. Yet, the righteous indignation that drives Harry and his friends, adult and adolescent alike, does not strike the reader as something "wrong." Indeed, we want to see it; we yearn for their revolution. But what makes Harry - and even the reader - morally justified? Jeremy Waldron's work on the authority of law very convincingly argues that even 'bad' laws must be followed, insofar as following bad law is the only way to truly establish any authority.171 Because we will always follow "good" laws, even those of a regime with no legitimate authority, following the bad laws of a just regime - subjecting ourselves to the government itself - is the only way to prove the government in fact has authority.172 If we are to believe Waldron, this certainly complicates our justification of Harry. But Harry is facing more than just a bad law, or even laws that are unfair in their application. He is subjected to an inquisition - and one that is occurring under a regime that is daily changing the way they operate and trying to sever from society all those that call for accountability. The trial that opens The Order of the Phoenix is the prelude to the question that Harry and his friends must face throughout their fifth year: when is it just to act outside of the law? Harry's full-fledged trial is for a "crime" that is rarely prosecuted. Moreover, Harry committed the act in order to save human life - his own and that of his Muggle cousin, Dudley Dursley.173 We know of many instances of magic performed outside of Hogwarts by underage wizards, both in current times and in stories of what has happened in past years. And we know of no wizard that has actually been expelled from Hogwarts for such acts, much less subjected to a Wizengamot hearing. Still, the trial takes place under the law. What then, makes Harry's trial anything more than an appropriate, selective prosecution, especially considering that Harry has violated this law before? The answer is complex, and, at least as a piece of literature, probably hinges largely on our sympathy for Harry. But there is a better answer, a jurisprudential answer: natural rights and laws can vindicate the violation of positive law. We afford leeway to even the poorest of enactments by a government that generally upholds the natural rights of its citizens. This is where Waldron's argument is most applicable. But a just government also provides it citizens with at least some measure [460]
of equality in voice and impact.174 This, however, is exactly what the Ministry of Magic fails to do. With the vesting of government in its constituents, also comes the notion that people know what "good" law is. But most people do not go around writing, or even citing to, positive law. They are guided by their own perceptions of what rights are naturally afforded them. And the vested interest in making, or at least participating in, the law also compels people to reject positive law that opposes natural law - that is, natural law as they perceive it.175 Although Harry makes it through the trial unscathed and without violating more laws, many will be violated in the remaining pages of The Order of the Phoenix. The boundaries of just how great the asymmetry between positive and natural law must be in order to compel breaking the law may be unclear, but what is unambiguous is the moral justification, perhaps even the requirement, to do so. At the end of The Prisoner of Azkaban, Harry and Hermione save Buckbeak the hippogriff176 and Sirius Black177 from their death sentences. In saving Black and Buckbeak, charges along the lines of obstruction of justice and likely much more could presumably be brought if Harry and Hermione were caught. Harry and Hermione are in this scene vigilantes of a sort, as they frequently are, taking into their own hands the administration of justice. Of course, we know the death sentences of Black and Buckbeak to be, in fact, a miscarriage of justice. But does the presence of miscarriage warrant sidestepping the law in order to effectuate true justice? Morally, yes. This is why Harry and Hermione remain and indeed elevate their status as heroes among the readers. But are Harry and Hermione free of guilt themselves, or have they transgressed such that they should face some sort of punishment? Before even trying to operate through the proper channels, they took matters into their own hands, subverting the established and generally well-functioning justice system. Likely, Dumbledore was right in his assessment that [461]
three thirteen year-old wizards would not be believed by those in authority,178 but nobody knows this to be true. And Dumbledore, at this time, still commands a great deal of authority in the wizarding world.179 The scene is seemingly complicated, but I maintain, actually simplified by the fact that time travel played such an integral role in the rescue.180 Precisely because time travel is available, our heroes should have exhausted every possible alternative before embarking on their path that so flagrantly disregarded the legal establishment. Had they not been successful in this avenue, they could have ultimately resorted to time travel to prevent the miscarriage of justice. Black would have been in no danger. Just as in the case of Buckbeak, Black's death would not have occurred because Harry and Hermione of the future would have prevented the death in the present. So, although morally compelled in their actions, I will say that Harry and Hermione acted unethically. Perhaps a somewhat artificial distinction, what I mean to say is that Harry and Hermione took actions that, while moral, cannot be considered normatively acceptable by a society, lest everyone begin to act in such a way.181 I am not saying that any determination of guilt they were to face should not be considered in light of the mitigating factors, but I am saying that to normatively condone their behavior is to undermine the rule of law.atural law can provide the basis of justification for violations of positive law, but to justify the actions of Harry and Hermione cannot be to legally or ethically justify them, but rather justify them morally. Harry and Hermione's actions are legally unjustifiable. They are, however, legally excusable. This old distinction provides that justified acts are those that, although an exception to the normal rule, are acts that a society condones and wants, or at least expects, to see again and again.182 Excusable acts, on the other hand, are those that society, while still finding deplorable, will nonetheless consider in light of exigencies surrounding the act in order to forego part or all of the typical punishment.183 An old example of the distinctions compares the public hangman, justified in carrying out a court's sentence, to an excused killing in misadventure.184 [462]
So what? Harry and Hermione may be merely excused in their actions, but what difference does this make - they were right, right? No. Justifications sanction the choices of the actor, while excuses remedy an asymmetry between the circumstances at hand and the purpose of the law.185 In this case, the asymmetry comes about in that laws against aiding in prison breaks are not intended to punish those that save an innocent from an unjust death. But precisely because the behavior is merely excusable, there is no sanctioning of Harry and Hermione's choices, rather a new, ex post facto determination of justice says that they acted properly. What I have tried to do is to separate the explanation for why we identify with Harry and Hermione, and approve of their actions, from the explanation of why they do not deserve to go to jail. These are not the same. That is why the excuse-justification distinction also provides that excused acts alone require knowledge of the circumstance, but justifiable acts are still justified when performed in ignorance to the circumstances at hand.186 Because Harry and Hermione's actions are unjustifiable, the question of culpability specifically abstains from the issue of the motives, which are indeed moral. I base this determination of morality on underlying natural law,187 natural rights,188 or human rights notions189 - any construction of the bundle of ineffable rights each of us has an entitlement to as a human being. In this case, the highest right, life itself, is the one implicated. But I am also saying that protecting one of these rights is not necessarily sufficient to legally justify violating laws without also being an act that, normatively, our society wants to encourage. The violation, even if morally justified must also be carried out in a manner that society sees as acceptable behavior in order to be legally justified. This is to be distinguished from the many subsequent violations of law in The Order of the Phoenix, where the actions of Harry and company are justified. They are justified in a legal sense because they not only advance this class of liberty, but are also acts that society wants to encourage, notwithstanding their supposed illegality. The authority of the Ministry of Magic deteriorates in The Order of the Phoenix, culminating in the removal of Cornelius Fudge, the Minister of Magic. But why does it happen at that stage and not sooner? [463]
At what point does a once-legitimate regime cross the line of legitimacy, changing from a just government occasionally issuing bad edicts to a completely unjust government? The turning point, I believe, is when the government - the Ministry of Magic - begins punishing justifiable "crimes." Were Harry and Hermione to be punished for their acts in saving Buckbeak and Black, the government would still maintain its legitimacy. Although punishment might also be excused, in part or in full, because their actions were not justified, such excuse is, in a sense, only a privilege. Excused acts are not unlike acts of civil disobedience; they are morally justified or even compelled, but the actor may face the consequences for their actions.190 But legally justifiable acts entitle their actors to the fruits of justification: no punishment.191 But in The Order of the Phoenix Harry and Hermione are subjected to punishment for violating laws that they were justified in disregarding. While excuse and justification are both exceptions to the general law, justifications, because they are acts society wishes to see repeated, entitle their actors to avoid punishment. Avoiding punishment is merely a privilege or possibility for acts that are potentially excusable, because these acts - as they are not acts society wishes to see repeated - require an individual determination. While it is easy to see that the Ministry of Magic has lost its claim to rightful authority into The Order of the Phoenix, the point at which this happens, or begins to happen, is difficult to identify. The excuse-justification distinction in punishment, however, can help us identify when the loss of legitimacy in authority begins - in both the wizarding world and our own mundane Muggle world. I have used scenes from Harry Potter to introduce first-year law students to the role of intent and assent in contract formation. Many of these students come to law school with a concept of law as something that is imposed on individuals from outside; that is, their concept of law is better suited for a course in Criminal Law or Torts than for the course in Contracts, where duties are not imposed, but are instead assented to. The usefulness of the Harry Potter excerpts arises from an analogy between contract formation and the magical effects produced in the books. Both contract and magic require an expression of intent in order to "make the magic happen." I find that exploring the [464]
uses and limits of intent in both Contracts doctrine and in Harry Potter excerpts is an enjoyable and productive exercise for my classes. The first exercise illustrating the importance of intent is based on the termination of the master/house-elf relationship. In The Chamber of Secrets, the house-elf Dobby, at risk of great personal harm, comes to Harry before his second year at Hogwarts to warn him that someone intends to kill him during the school year, but Dobby cannot reveal the identity of the culprit. House-elves are servants of magical families and institutions.192 One of the terms of the relationship is that house-elves do not own clothing, dressing instead in rags. If given clothing, the master-servant relationship is severed, and the house-elf is "freed." After Harry defeats Lord Voldemort, Harry and Dumbledore receive a visit from the villainous Lucius Malfoy, accompanied by Dobby, in Dumbledore's office. Harry realizes, with hints from Dobby, that Malfoy is behind the attacks, and develops a plan to reward Dobby for his efforts. The dissolution of the master-servant relationship comes about when the master makes a gift of clothing to the house-elf.193 Harry hides one of his socks in a book belonging to Malfoy, and returns the book to him.194 Upon finding the sock, Malfoy tosses it aside, where it is caught by Dobby. Dobby is released and no longer bound by Malfoy's orders. In fact, Dobby uses his new freedom to protect Harry from Malfoy's rage at having "lost [his] servant." However, the act of giving the sock was not, from Lucius' point of view, intended to signify his intent to terminate Dobby's servitude.195 How is it that it nonetheless carries sufficient weight to affect that result? On the one hand, this privileging of objective act over subjective intent might be seen as consistent with the common law of contract. [465]
In the case of Lucy v. Zehmer,196 studied by many
first-year law students, a seller's allegedly "joking" delivery of a
promise to sell real estate is held to constitute a binding acceptance
of the buyer's offer to purchase, regardless of the seller's true, subjective
intent.197 It
is an elementary principle of contracts that the relevant intent is
the objective, expressed intent of the actor, not his secret, subjective
intent.198 Because
all of the actors in this scene know that the delivery of a sock constitutes
release of the house-elf from his servitude, the act itself is perhaps
sufficient for Dobby to reasonably conclude that Malfoy intends to free
him.
On the other hand, an objective
expression of intent must be reasonably readable as assent to be bound
before it may be legally acted on by the other party.199 An "offer," which is obviously made in
jest, in anger, or by mistake, cannot be "snapped up" by the other party
to his advantage.200
This seems to be applicable to the Dobby facts, and would thus give
Malfoy a "defense" to Dobby's claim to freedom.201Emphasis of act over intent is seen in other aspects of the Harry Potter mythology as well. In another house-elf plotline, in The Goblet of Fire, Hermione seeks to "free" the house-elves working at Hogwarts. She knits small articles of clothing, which she then conceals in the student dormitory, hoping that the elves will find them and be "freed." In this case, problems arise with the intent expressed by both Hermione and the elves. First, although Hermione clearly intends to grant the house-elves their freedom, how does she act as an agent of Hogwarts in this manner? She clearly does not have express authority to act for Hogwarts, which depends greatly on house-elves for domestic chores and it is difficult to see how she could have an implied authority to release the elves, as no reasonable person would think that a student would be empowered to make personnel decisions [466]
for a school. Perhaps the author means to imply that the mere objective act of giving clothes creates the magical effect of granting freedom, without regard to the intent of the donor or her authority to make the gift. But if this is so, why could Harry not free Dobby from Malfoy's service by simply giving him the sock himself, rather than staging the elaborate deception at the end of The Chamber of Secrets? Second, it turns out that, unlike Dobby, the majority of the elves working at Hogwarts do not want to terminate their relationship with the school. To avoid the risk of finding an article of clothing, they refuse to clean the student dorms, forcing Dobby, who is working for Hogwarts as an employee rather than an indentured house-elf, to do all the work himself. Are we to conclude that the master202 has the power to terminate the relationship at will?203 Could the elves not refuse to accept the clothing, and continue as indentured servants at Hogwarts, a role they evidently find palatable?204 Or, again, is the author's meaning that the act of receiving clothing has magical effect independent of the subjective intent of either the donor or the recipient of the gift? Finally, we see this privileging of objective over subjective intent in the selection process for the Triwizard Tournament in The Goblet of Fire. Although Harry has not entered his name into the Goblet, his name nonetheless emerges from the Goblet as one of the Hogwarts Champions. Dumbledore tells Harry that he must compete, as the selection of his name has created a binding "magical contract." Of [467]
course, because a contract requires the assent of both parties, how can it be that Harry is bound to compete?205 From these texts, it would appear that in the Potter universe, magic depends solely on the satisfaction of certain formalities - the delivery of an item of clothing to a house-elf or the appearance of one's name from a list of candidates suffice to bind the actor regardless of intent.206 On the surface, this would appear to be consistent with the objective theory of contract formation. However, a closer look at both worlds reveals that this is not the entire story. Much of the law of contract formation exists to deal with the shadowy boundary of expression of intent.207 Doctrines of mistake,208 misunderstanding,209 fraud210 and others provide exceptions to the basic rule of objective intent.211 Thinking about these aspects of the Harry Potter stories can provide useful justifications for these exceptions to a strict rule of objective intent; in large part because the magical world of Harry Potter does not seem to allow for such examples. Examination of these scenes can reveal the harshness of the rule of objective intent taken to extremes, and can illuminate for the law student and for the reader the necessity of these amelioration doctrines that the law has developed. While J.K. R |
