The Law of Harry Potter
What are the criminal consequences of a curse? Can a person commit a tort by unfair Quidditch play? How can the law of the Muggles be harmonized with the law of the Wizarding World? For a long time, attorneys struggled over these issues without much legal guidance. But that problem has now been fixed by Aaron Schwabach (law, Thomas Jefferson), who has posted an article on SSRN analyzing the law of Harry Potter: Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World. According to the abstract:
The astounding success of the Harry Potter series of children’s fantasy novels is an unexpected cultural phenomenon, but a welcome one for lawyers and legal academics: Harry’s story is a story about law, and about a society trying to establish a rule of law. There is law in every chapter, and on almost every page, of all six books. Sometimes the legal questions hang in the background, while at other times they are the focus of the story: We see numerous trials, and the author gives us statutes, regulations, school rules, and even international agreements to consider.
Harry’s world is administered, ineptly, by the Ministry of Magic. 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 some Muggle governments in similar circumstances, adopted an ad hoc and inconsistent approach to justice. It imprisons people, and sometimes executes them, without a trial. It keeps careful tabs on law-abiding citizens, but is unable to track down terrorists. It reaches inaccurate results in about half of its criminal trials, in large part because defendants are not represented by counsel. This article attempts to examine the problems with the wizarding word’s legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death.
There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry’s world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry’s regime as well as under relevant British (Muggle) and international law.
All the more reason to attend Hogwarts Law School . . . although I heard that Dean Dumbledore might have played some magic tricks on their statistics, thus making their U.S. News ranking of #6 somewhat dubious. But I’m sure that Brian Leiter will get to the bottom of it.
Hat tip: Larry Solum