In more ways than one, the muggles of Harry Potter ain’t got it easy. Their owls seldom deliver post, their best sweets wouldn’t be worthy of Honeydukes and attempts to step on to Platform ¾ are most likely to result in a hefty nosebleed.
When it comes to law-making, however, muggles may trump the wizarding world.
At least, that’s the thinking of lawyer Shouvik Kumar Guha, a professor at India’s National University of Juridical Sciences. He teaches the future law-makers of his country real-life legal principles using examples from JK Rowling’s magical novels. Or, to be more precise, examples where the standard of wizarding law-making doesn’t quite match the muggle world – from the slavery of house-elves to the shortfalls of the Wizengamot.
We should make this clear now: Guha loves Harry Potter – he’s a self-confessed “massive” fan of JK Rowling. He isn’t directly attacking the books through his course. In fact, Guha suggests his module supports Rowling’s representation of magical law as something incredibly flawed – something Hermonie Granger alluded to in The Deathly Hollows.
Are you planning to follow a career in Magical Law, Miss Granger?” asked Scrimgeour. “No, I’m not,” retorted Hermione.“I’m hoping to do some good in the world!
“Throughout her books, Rowling has tried to portray the limitations of law – just how unfair things could be,” Guha explains. “As a teacher of law, criticism of the subject isn’t damaging in itself. We need to discuss it.”
So, let’s do just that. Let’s delve into the biggest questions the wizarding courts need to answer. Prepare to analyse the world of Harry Potter just as JK Rowling intended: closely scrutinising its representation of legal principles…
Does Azkaban really offer any hope of rehabilitation?
It’s no Nurmengard, but the island prison guarded by soul-sucking dementors raises some serious ethical dilemmas. And not just for wizards: as its name suggests – ‘Azkaban’ originates from a mix of the infamous San Francisco prison ‘Alcatraz’ and Hebrew word ‘Abaddon’, meaning the depths of hell – the magical jail highlights problems muggle prisons have contended with in the past.
It comes down to the question of rehabilitation. After all, could a stint in Azkaban have any hope of reforming an offender?
“The only way to escape Azkaban seems to be either death or insanity! What hope is there for reform?” says Guha. “It highlights what can happen when prison isn’t seen as part of a process.”
While most would agree there’s no prison programme that could transform the likes of Bellatrix Lestrange – we doubt she’d ever be trusted outside the prison walls, even with an electronic tag strapped to her ankle – it’s here we have to think what impact Azkaban has on prisoners incarcerated for lesser crimes.
How would they handle being so marginalised from society? And what is Azkaban’s effect on juvenile offenders who are sent to the same hellish prison as adults? The books offer a grim answer.
“It’s such a bad environment that when a despot like Lord Voldemort comes to power, where does he look for supporters? Azkaban! And not just for the prisoners, but for the guards – who also join him!” exclaims Guha.
“In Azkaban, obviously there’s a lot of resentment from prisoners. The entire environment gives way to outrage against the system. And that can be used by people who are involved in criminal activities of their own – people like Voldemort.
“The point is even if you’ve got a person inside prison who originally hoped to go back to normal life after serving their sentence, that [marginalised] person becomes more of a threat to society if there’s a breakout.”
The scaly hand of a dementor
Fortunately, however, Azkaban did undergo significant changes after the events of the books. It may not have been completely closed down like its Alcatraz namesake, but, according to JK Rowling, Kingsley Shacklebolt abolished the use of dementors as guards during his time as Minister of Magic.
Better still, ever since the soul-suckers were replaced by aurors, Rowling says there hasn’t been a single escape since. For once, all is well.
Can justice ever be served in the Wizengamot?
Given a bit of thought, even the likes of a Longbottom (sorry, Neville) could realise the wizarding high court has some serious flaws.
Firstly, there’s its membership: not only is it suggested in the books that the Ministry of Magic influences who sits on this court, but the actual Minister for Magic can appoint himself as Chief Warlock of the Wizengamot. And that’s a huge problem when considering the concept of judicial independence – the idea that the courts shouldn’t be influenced by the government.
Why? Well, as we see in The Deathly Hallows, if the government/Ministry of Magic and the courts aren’t separated, the system can be abused by politicians, with the rights of ordinary people taken away. Just think how Dolores Umbridge revelled in persecuting muggle-borns after the ministry came under Voldemort’s control.
However, there’s another huge problem with the Wizengamot in regards to its defence barristers: they don’t really exist.
While many countries, such as the UK, give those accused of a crime the right to legal aid and representation, the Wizengamot has little interest in making sure defendants can muster a proper argument. As Potter fans will know, in The Order of The Phoenix, the Wizengamot tried to prosecute Harry Potter for the crime of performing underage magic – without any kind of representation.
Fortunately, in that case, Dumbledore arrived in time to dismantle the prosecution’s argument and see the charges dropped. But if help hadn’t suddenly apparated for Harry, what would have happened? A teenager with little to no understanding of wizarding law would have been forced to defend himself with scarce hope.
It’s little surprise Guha considers this far from fair. He says a trial without a proper defence rejects the premise that the state must prove its case against a person to a certain level. After all, how can somebody be proved guilty beyond a reasonable doubt if the defence doesn’t have the opportunity to present such doubts?
“But even when there is representation in Harry Potter, it’s very problematic, to say the least!” Guha adds with a laugh. “For instance, Barty Crouch Jr – he was the prosecutor against his own son! If that’s not a conflict of interest, I don’t know what is. Sure, he wanted to prosecute his son, but conflict of interest works both ways!”
How can wizards like Sirius Black prove their innocence?
Throughout the books, Harry’s animagus godfather is pursued by the Ministry of Magic, accused and convicted of murdering of 12 Muggles and one wizard. But there’s just one problem with this: he didn’t do it. As fans will know, it was actually Peter Pettigrew behind the bloodshed, with best friend Black framed for these crimes.
However, in the wizarding world, there seem to be few ways to exonerate an innocent person. In fact, Minister of Magic Cornelius Fudge was happy to ignore new evidence in Black’s case – testimony from the likes of Harry Potter claiming that Pettigrew was still alive during the events of The Prisoner of Azkaban. And not only that, but Fudge also soon held Black responsible for a mass Azkaban breakout without a scrap of proof.
As you’re probably guessing, legally, this would be very problematic in the muggle world. “In Harry Potter, there are few ways to prove your innocence – there’s no retrospective DNA testing or even a system set up for that,” explains Guha. “There’s nothing like the Innocence Project [the organisation that has freed more than 362 wrongfully convicted people, including Making a Murderer’s Steven Avery in 2003].”
However, Black’s case doesn’t only highlight the need for a wizarding appeal system, but the sort of people who would need it the most: the poor. Because even if there was a route for legal redemption, Sirius was left without so much as a knut to fight his conviction.
“This is actually a real problem in the muggle world too,” admits Guha. “I’m yet to find a rich person who has been wrongly convicted and has served a long sentence only to be proved innocent later.”
In other words, Sirius Black’s only real hope of freedom was stumbling on a serious stash of galleons. Or at least becoming the subject of a major Netflix true-crime documentary.
What actually breaks an unbreakable vow?
The concept sounds simple enough: the unbreakable vow is an oath a witch or wizard makes to another that, if broken, causes them instant death. However, as muggle lawyers will tell you, the legalities can get more tangled than a clump of devil’s snare.
“What happens if person A and person B have entered where A vowed to kill C, But then C dies of natural causes. What happens to the unbreakable vow? Is the contract nullified?” poses Guha.
In the muggle world, he explains, such a contract would get torn up due to the legal concept of frustration, where both parties can walk away from a contract if it is ruled to be impossible.
But in the wizarding world? We’re not exactly sure, even though we’ve seen a similar scenario play out on screen. We’re talking here, of course, about Yusuf Kama, the wizard from Fantastic Beasts: The Crimes of Grindelwald who had sworn to kill the person Corvus Lestrange IV loved the most: his son. However, it turned out that Corvus’ son was killed by Leta Lestrange years before.
Yet, Yusuf doesn’t die also. He has apparently not broken the terms of his unbreakable vow. How? Is it just that Yusuf hasn’t yet killed the person Corvus loved the most who is still alive? Or is it because of the muggle concept of frustration has come into play after all? But if so, who established the concept in the wizarding world?
Maybe the answer is hidden deep away in the department of mysteries, but for now it remains a case not even Hermione Granger could crack.
How much power should the Ministry of Magic have to free house-elves?
That’s right: turns out Dobby the house-elf is actually a touch point for some serious legal and ethical issues.
“All of us agree that slavery is as bad as it gets. And we can all be happy when Dobby gets released by his master,” says Guha. “But we need to think about rehabilitation.
“I’m talking here about how Hermonie Granger kept leaving clothes around Gryffindor tower in a bid to free slaves without their knowledge – she didn’t know what would happen when they get released. Obviously freeing people like Dobby who want to be freed is great – but what about those who don’t? What about Winky?
“Who should tell those elves what to do? How much power should the state really have over the individual when it’s against a person’s free will?”
Although most would agree that it’s morally justifiable to free any kind of slave – even house-elves like Kreacher – Guha says this moral argument about individual control has a problematic modern-day parallel unrelated to slavery.
“There are examples of controversies in India of indigenous tribes who live in the outskirts of society,” he explains. “It’s a real point of concern how indigenous people can come into touch with ‘civilised people’ – how ‘civilisation’ is forced on them with unexpected consequences.”
So, is it okay to introduce laws that you think will help somebody’s life at the risk of destroying their culture? What is the role that a responsible government should play?
Not even the wisest of wizards could tell you. But they would, however, realise that the consequences of meddling with individual freedoms should be considered very carefully – at least as much as granting those freedoms in the first place. To paraphrase one of Hogwart’s finest students, many lawmakers – and S.P.E.W. – need to sort out their priorities.