Law, Human Rights and democracy in the Wizarding World

[cindysphynx]

No: HPFGUIDX 31047

Susanna wrote:

>snip great observations about duties and powers of Minister of 
Magic> 

>So far, this wouldn't represent a particular problem, but things get 
> a bit more difficult when we turn our attention to the legislative 
> body (parliament), which is blatantly absent. Now, there must be 
such 
> a thing as magical law, because there is a Magical Law Enforcement 
> (an analogon to Muggle police), and you can't enforce a law that 
> doesn't exist. 

I think there *must* be some sort of Magical Congress or Parliament, 
but that we just haven't seen it.  There are other political figures 
you'd expect to see who haven't made an appearance yet.  For 
instance, one would think someone would be the mayor of Hogsmeade.  
But for all of the trips to Hogsmeade and the presence of the 
dementors, there is no communication by or appearance of the mayor.  
In fact, the notice on the door of Honeydukes in PoA informing 
visitors that the dementors will be patrolling is from MoM, not the 
local authorities in Hogsmeade.

Also, Fudge tells Snape in PoA that he'll try to arrange for Snape to 
receive Order of Merlin, First Class, if Fudge can manage it.  This 
suggests that *someone* has authority over Fudge in these matters -- 
probably the wizarding legislature.  I don't think Fudge is 
necessarily supposed to be a dictator.  I think he is just sort of 
representative of the most of the government, rolled up into one 
person for convenience and simplicity.  

The other reason I don't think the wizarding world is a dictatorship 
is that Crouch Sr. had substantial powers as the Head of Magical Law 
Enforcement.  He, not the Minister of Magic, made a number of 
critical decisions (aurors could use unforgivable curses).  Since the 
wizarding world was in a war with Voldemort, Crouch Sr.'s power to 
direct the war effort suggests that he, not the Minister of Magic, 
might be the commander in chief.  

Susanna again:

> And things get downright scary, at least for someone who has grown 
up 
> in a democracy and sticks to its values, when it comes to 
> jurisdiction: There are no independent courts in the British 
> wizarding world. Not only that, but the person who in Muggle terms 
> would be the Minister of Interior Affairs (Crouch Sr.) acts as 
judge 
> AND public prosecutor in a trial where life sentences to Azkaban 
are 
> at stake. Not to mention that the defendants don't even have a 
lawyer 
> but must defend themselves. 
> 

It is certainly true that due process is, um, truncated in the 
wizarding world.  Hagrid and Sirius both get hauled off to Azkaban 
without trials, and Hagrid went there during peacetime on skimpy 
evidence indeed.  

I'm not ready to pronounce wizarding justice as a complete disaster, 
though.  There were three "trials" in GoF, but only one was really a 
trial (Bagman), and the defendant was acquitted.  Karkaroff's 
pensieve scene wasn't a trial, but an interrogation, and MoM kept up 
its end of the plea bargain by releasing him.  Crouch Jr.'s 
appearance sounds like a crude version of a sentencing, not a trial.  
Crouch Sr. says they have heard the evidence, and he asks the 
jury "to raise their hands if they believe, as I do, that these 
crimes deserve a life sentence in Azkaban."  

I do wonder, however, whether the terrible shortcomings in the 
wizarding justice system are by design (to keep it simple)or are just 
due to some lack of understanding about how some of these things are 
supposed to work.  In the U.S., a judge or prosecutor who polls the 
jury by stating his or her own personal view of the defendant's guilt 
will cause a mistrial.  I believe it is also considered bad form to 
chain the defendant in the presence of a jury that is deciding the 
defendant's fate. I don't know about the British justice system, but 
I'd be surprised if British legal proceedings look anything like 
these.  Does anyone know?

Susanna again:

> Which brings us inevitably to the conclusion that the three powers 
of 
> legislation, executive and jurisdiction are by no means separated, 
> but concentrated in one single institution: The Ministry of Magic. 

Hmmm.  Well, if the Ministry of Magic is equivalent to the U.S. 
government, then it might very well have separation of powers after 
all.  Crouch Sr. sounds like the head of the judicial branch.  Fudge 
would be head of the executive branch. The "missing links" are the 
leaders of the legislative branch, who (in the U.S.) are so dull that 
it doesn't surprise me that JKR might decide not to clutter the books 
with them.  :-)

Cindy (resisting the strong urge to compare Crouch Sr.'s handling of 
criminal justice during wartime and John Ashcroft's handling of same)