Law and the Potter mythos

Specialist critique of literature is often extremely interesting for revealing possibilities of what the author intended (or raising ones not intended). In this light I've just been enjoying some scholarly papers I found via the Social Science Research Network. Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World (Aaron Schwabach, Thomas Jefferson School of Law, TJSL Legal Studies Research Paper No. 05-13, Roger Williams University Law Review, 2005) and Harry Potter and the Half-Crazed Bureaucracy (Benjamin Barton, University of Tennessee College of Law, Michigan Law Review, Vol. 104, May 2006) both look at the legal system within the Harry Potter mythos.

The Schwabach paper focuses on the law, and application of it, relating to the Unforgivable Curses, comparing this with British and international law on equivalent issues such as torture and the death penalty. Schwabach concludes that legal framework within the Potter mythos can be interpreted as that of a society which has made imperfect laws in the confused aftermath of a war. He argues, furthermore, that the Potter books will raise a generation tuned into the analysis of legal/moral quandaries. I'd like to think so, but unless such difficulties are explicitly highlighted in the narrative, I think it's likely that many such problems will slip by under the usual action story convention that a hero's violent actions against villains are rarely questioned. An example of this was raised a while back by Shami Chakrabarti: see Harry Potter is a war criminal (Paul Rodgers, The Independent, 26 August 2007), which discusses the considerable problem of Harry being allowed to get away with using the supposedly unforgivable Crucio curse on Amycus, a minor baddie, for the pretty trivial reason of his spitting on a teacher Harry likes.*

The Barton paper, on the other hand, leads with

What would you think of a government that engaged in this list of tyrannical activities: tortured children for lying;1 designed its prison specifically to suck all life and hope out of the inmates; placed citizens in that prison without a hearing; ordered the death penalty without a trial; allowed the powerful, rich, or famous to control policy; selectively prosecuted crimes (the powerful go unpunished and the unpopular face trumped-up charges); conducted criminal trials without defense counsel; used truth serum to force confessions; maintained constant surveillance over all citizens; offered no elections and no democratic lawmaking process; and controlled the press? You might assume that the above list is the work of some despotic central African nation, but it is actually the product of the Ministry of Magic, the magicians' government in J.K. Rowling's Harry Potter series.

and reads Rowling's portrayal of the Ministry of Magic as an intentional indictment of government, finding in it a libertarian message.

Another paper by Schwabach, The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright (Aaron Schwabach, Thomas Jefferson School of Law, University of Pittsburgh Law Review, Vol. 70, 2009, TJSL Legal Studies Research Paper No. 1274293) is an up-to-the-minute exploration of copyright and intellectual property issues of derivative fiction. Its case studies are the dispute between Larry Niven and Elf Sternberg over the latter's use of Niven's kzinti in "slash" fan fiction; Marion Zimmer Bradley's change of heart over fan use of settings in her Darkover mythos; and the recent legal dispute concerning JK Rowling and The Harry Potter Lexicon. The last piece provides an extensive overview of Harry Potter clones and parodies, and I was delighted to see it cites a JSBlog posting about Tanya Grotter in a footnote.

Addendum: * I've just been informed that within the HP mythos, during the first Voldemort crisis, Unforgivable Curses were authorised by Crouch for use against Voldemort and his followers, and so this technically still applies to Harry's use of Crucio on Amycus. However, this doesn't make the problem go away; given the extent to which the wrongness of the curses is stressed, it's reasonable to assume very strict "rules of engagement". The subsequent exchange between McGonagall and Harry makes it clear he has majorly overstepped those rules

"... Potter, that was foolish!"
"He spat at you," said Harry.
"Potter, I – that was very – very gallant of you – but don't you realise –?"
"Yeah, I do," Harry assured her.

Realise what? That unless she keeps quiet about it, he's at the very least up for the equivalent of a court martial? That the incident passes without further analysis suggests that Harry, as postulated by Shami Chakrabarti, has indeed got away with a war crime.

- Ray