Harry Potter and the Due Process Clause

Harry potter cover.jpgDon’t worry, no spoilers here.

I stayed up way past my bedtime last night finishing the final Harry Potter book. I found it very satisfying. But this is a law blog, and I am a geeky law professor, so the phenomenon I will note is how extensively these books develop the theme of procedural fairness — a marvelous lesson for the children who are its target audience.

Time and again throughout the series, the Ministry of Magic that rules wizards in England falls far short of what we would consider the minimum of due process. There are repeated sham hearings that have the trappings of even-handed court proceedings, but they are rigged and hollow. In an earlier book (Harry Potter and the Order of the Phoenix, also the movie currently playing in theaters), Harry himself is accused of an infraction against wizarding rules; the Minister abruptly changes the time for his hearing before the Wizengamot — a sort of legislature with judicial functions, it seems — hoping that Harry’s principal advocate, the wise Albus Dumbledore, will miss it. The same phenomenon happens constantly at Hogwarts, the wizarding school. Various teachers and headmasters make arbitrary and capricious decisions and issue unjust punishments.

Sometimes this sort of unfairness is perpetrated by the clear bad guys, the evil followers of the story’s villain, Voldemort. More often, however, leaders of the Ministry of Magic or of Hogwarts are simply acting bureaucratically. They may not support Voldemort at all, but they treasure form over substance and obedience to the letter of the rules rather than any adherence to its spirit. Most of all they seek to preserve their own power against perceived threats — often petty threats far less serious than the real dangers posed by Voldemort’s followers. The fact that there is an official hearing, an examination of witnesses, and a vote provides no guarantee of substantial fairness.

Early in the first semester of my civil procedure course I plan to have the students read the classic procedural due process cases (Goldberg and Mathews) and think about the attributes that do — and should — constitute fair procedure. I think I will use the Harry Potter books as an example.

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7 Responses

  1. Joe Miller says:

    Yes … JK Rowling as the Vindicator of Lon Fuller.

  2. Catherine says:

    Interesting to hear you use the word “satisfying.” The same word that I, and so many others, are using.

    I just posted my own reveiw…I’d love to hear what you think!


  3. susan franck says:

    Another way to think about this is through the lends of administrative law. Think about Delores Umbridge, a Ministry official, who (as the movie clearly showed) was quite happy to break internal agency rules and resort to the Crucio! curse when it suited her purpose of exactracting information. Perhaps the muggle-based Adminsitrative Procedures Act might have a Ministry counterpart so that Umbridge would have been guilty of regulatory conduct that was (in the words of Jim Chen) ACAD – arbitrary, capricious and an abuse of discretion.

  4. For the full treatment, see my colleague’s piece: Ben Barton, Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 (2006) (reviewing HP and the Half-Blood Prince).

  5. Christine Corcos says:

    Those of us in the law and humanities field have been tracking Harry Potter scholarship for a while. I try to keep up with Harry Potter material both at the Law and Humanities Blog (look under the index term “Harry Potter”) and at the Law and Magic Blog (also under the term “Harry Potter”). The August 23 issue of Legal Times also had an article by Andrew Fois called “Due Process for All Wizards”: here’s the lead. “Harry Potter’s story shows our world — especially our children — what can happen when government power goes unchecked by law.”

  6. SERJ says:

    it’s great…when do you show the alst Harry Potter in theather /movie??

  7. SERJ says:

    it’s great…when do you show the alst Harry Potter in theather /movie??