Law, Human Rights and democracy in the Wizarding World

[lenmachine]

No: HPFGUIDX 31073

I have to say that I find this entire line of discussion fascinating. 
Usually, people don't get to thinking about the judicial systems of 
fictional societies, so this is very exciting !

First, though, I have to disagree with those like Susanna and 
Elizabeth that the only conclusion to be drawn from what little we've 
seen of the MoM is that it is in fact a dictatorship. First of all, 
we have precious little information about the governmental structure 
itself. Second, what little we see takes place during one of the 
darkest moments in wizard history (more on this later). Third, I 
don't see the MoM necessarily bearing the hallmarks of a 
dictatorship, or any sort of autocracy. I know little about political 
science, so I can't really defend this position very knowledgeably -- 
anyone out there with a poli sci degree who can elucidate this 
issue ? It's just that I see no indication whatsoever that Fudge, 
Crouch, or *anyone* possesses absolute governmental power. (Cindy 
brought up some good points in this regard.)

Susanna said:

> > 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. 

Seeing Crouch act as both judge and prosecutor didn't shock me that 
much, really. I spent two summers in France with my law school's 
study-abroad program, and we watched a few trials while we were there 
(I say "few" because they can hear nearly 10 trials in an hour !). 

In criminal trials in France -- yes, the country of Montesquieu -- 
only the judges question the defendant. They even have their 
own "special" police to perform some investigations for them. French 
avocats (attorneys) and procureurs (prosecutors) do not take as 
active a role in the trial process as do the American lawyers or 
British barristers.

While this may seem shocking at first (at least to Americans), the 
reality is that a French defendant is only charged with a crime in 
the face of overwhelming evidence. Admittedly, this is not always the 
case in the HP world. Not only that, most sentences are suspended in 
favor of probation. Again, not the case in HP. And, of course, French 
judges are not necessarily government ministers. My point was that 
the role of judge and prosecutor can combine, even in a modern, 
developed society.

However, one has to keep in mind that we are comparing modern legal 
systems *during peacetime* with three short descriptions of legal 
proceedings (and, if you count it, Buckbeak's "trial") in the wizard 
world *during strife*. Even in our supposedly "more enlightened" 
times, I fail to see many differences between Crouch's way of doing 
things and FDR's "military commissions" or Bush II's "military 
tribunals." In fact, I think that JKR is uncanny in her depictions of 
the reponses of policymakers to the threat of war and the treatment 
of war criminals.

Cindy wrote:

> Crouch Sr. sounds like the head of the judicial branch.  

Although now that he's head of the Department of International Magic 
Cooperation, maybe he's more like an American Secretary of State ? :-)

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

Argh ! Tell me about it !! :-) Like I said, JKR's depictions are 
*uncanny*. :-)


Sincerely,

Emily A. Chen