"Literature shapes law," declares Aaron Schwabach. "For every real-life model of advocacy, adjudicative, and rule-making roles that the average first-year law student has, there are a hundred fictional models, from Atticus Finch to, well, Albus Dumbledore."
So begins "Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World," a tour-de-force exploration of the "deeply flawed legal regime" that governs the world of Harry Potter, published in 2005 (and thus before the release of the seventh and concluding volume). Snicker if you like, but Schwabach's assertion that "For millions of readers, especially younger readers, the legal regime of Harry's world will form expectations about legal regimes in Mugglespace," is entirely defensible.
But feel free to chuckle merrily too. Schwabach, a law professor at Thomas Jefferson College of Law in San Diego, has loads of fun. His juxtaposition of the memory-destroying Memory Charm curse used in the Potter-verse with the "flashy-things" employed by the good guys in "Men in Black" and the casual wiping of droid minds in "Revenge of the Sith" is a virtuoso display of comparative fantasy/sci-fi legal analysis. I would say there's not enough of this kind of work being done today, but a review of the footnotes in Schwabach's authoritatively annotated paper suggests I would be sadly mistaken if I did so.
Schwabach's focus is on the inconsistencies that plague how the Ministry of Magic government enforces the "unforgivability" of some curses -- notably, the torture-inflicting Cruciatus, Avada Kedavra (the Killing Curse), and the enslaving Imperio -- while turning a completely blind eye to others, such as the Dementor's Kiss and the Memory Charm. There's also the troubling issue of how Wizardry law and Muggle law intersect, particularly insofar as concerns the right to due process, a fair trial, legal representation, et cetera, all of which appear to be rather cavalierly treated by the Ministry of Magic regime.
Just as in the Muggle world, these different legal systems interact, when necessary, through international law. Wizards have their own structures of international law, which have adopted rules such as the International Statute of Wizarding Secrecy. International human rights law, however, seems to mean little more to the Ministry of Magic than does British Muggle law. Executions, let alone executions ordered by administrative officials without any judicial determination of guilt, are forbidden by Protocol 6 to the European Convention on Human Rights, to which the United Kingdom became a party in 1999. While (depending on which chronology is accepted) Protocol 6 might not have been in effect for the United Kingdom at the time of the execution of Crouch (assuming that soul-destruction falls within the definition of execution), the more general provisions of the International Covenant on Civil and Political Rights would still have prevented execution without due process and by such cruel means.
OK, that might not be as funny as Schwabach's treatment of the raw deal given to Buckbeak the hippogriff or the footnote citing Foucault in his discussion of Harry's use of the Cruciatus curse on Bellatrix Lestrange. But Schwabach's treatment of how wizardry law does or does not compare to British and international law suggests a subversive parallel reading. What if, instead of the Potter-verse, Schwabach's real target for analysis was the Bush administration-verse, with its justifications for torture and extrajudicial detentions?
This reading, I would argue, is supported by Schwabach's conclusion.
An entire generation, perhaps many generations, of future lawyers, litigants, lawmakers, judges, jurors and citizens is confronting these questions. What is the rule of law? Should it be absolute? What limits should be placed on government power, and on private power? When is it right to disobey not only unjust laws, but just ones? Will the author present us with answers in the final volume, or only with more questions? The latter will almost certainly be more useful to the reader than the former; we have already seen that the Ministry's regime is not one to emulate, but ultimately each society, and perhaps each generation, must re-create the rule of law for itself.
Each generation must re-create the rule of law for itself. With memories of a nominee for the position of attorney general of the United States refusing to tell the Senate Judiciary Committee whether he considered "waterboarding" to be "torture" still fresh in our minds, Schwabach's challenge is practically Dumbledorian in its understated wisdom.
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