Law, Human Rights and democracy in the Wizarding World

[Gabriel Rozenberg]

No: HPFGUIDX 31075

I think most US people on-list are in danger of assuming too much that 
government works the same in the US as everywhere else. There is no doctrine 
of the separation of powers in Britain, although the independence of the 
judiciary is if anything greater here than in the US. Moreover, the -- 
admittedly, reasonable -- US assumption that local deomcratic institutions 
will exist and run local things just doesn't translate into the mad, 
confused world of British local government.

On the assumption that the wizard governing system takes at least some cues 
from the UK, some alternative suggestions follow!

>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.

Well, primitive societies have law without clear legislatures; other 
societies (eg pre-revolution France) will have legislatures that only meet 
every few hundred years or whatever. Wizard law could be the sort of thing 
that doesn't get changed much. Perhaps an Estates-Generale/ Jedi council 
(/OoP??) might exist, meeting only in times of crisis. A thought.

>
>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.

Except that lots of towns in Britain don't have mayors. There are hardly any 
directly elected mayors in this country; though there are quite a few Lord 
Mayors, who are wholly ceremonial figureheads. Smaller British conurbations 
tend to be run by an unwieldy mix of parish councils (centred around the 
local church), town councils and county councils. All of which have 
overlapping responsibilities. This doesn't matter much since Hogsmeade is 
clearly a unitary authority operating outside the realms of local GB 
government; whichever county it's in (the film has somewhere in Yorkshire as 
I recall but there's of course much evidence that Hogsmeade is in Scotland) 
will have no control over it. Internally however if it copies other town 
councils it will be like a little legislature with a dominant coalition in 
control of policy. Moreover, it will be bureaucratic and yet without little 
power: see below!

>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.
>

This is unsurprising, since town councils tend to have their powers usurped 
by central government in Britain whenever the central government feels like 
it. THe council is often reduced to the role of implementing orders from on 
high. The fact that Hogsmeade Town Council seems to have no control over the 
dementors isn't that surprising. On the other hand, police forces are all 
local in the UK and there isn't a 'National Guard' as such. So I think the 
most likely equivalent for the dementors would be the Army, which a town 
council wouldn't have much say over.

>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.
>

All government Ministers have similarly broad powers. If a government 
minister wanted to get someone knighted, he'd send a note over to the Prime 
Minister and ask if he could sort it out. It might happen if the PM felt he 
owed him a favour, etc. Patronage powers in Britain are rather a black book, 
and many are pretty random. I think here Fudge sounds precisely like someone 
on a level with other UK Gov ministers. Perhaps he is one. (He tells the PM 
about Black, so he has some sort of access.)

>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.
>

Or he could've been in Fudge's War Cabinet. Since Churchill at least the PM 
in times of war has picked 4 favcoured Cabinet ministers to form an inner 
cabinet which can make quick decisions. That would give Crouch quite enough 
influence. We don't really have a singe c-in-c like the US (well we do, but 
since she's the Queen, and follows the advice of her ministers, whatever 
that means, executive power can be dispersed through many or held by one 
depending on circumstance.)

>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.
> >
>

Yes, I don't recognise this as especially British, although the Home 
Secretary is doing his best to give us Azkabanian justice. So maybe this is 
a military tribunal as a consequence of a time of war. Against, er, 
Buckbeak. Hmm.

>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?
>

Indeed: in fact trials are much fairer in Britain, since the press is 
stopped from printing anything which could prejudice the jury; the judge 
can't overrule the jury's verdict as I think sometimes happens in some US 
courts; etc.

>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.
>

Pretty probable. In the UK the executive controls the legislature anyway. 
Sad but true.

>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.

But he's a minister! Seems unlikely. Although, it has to be said, the Lord 
Chancellor is a minister and also head of the judiciary, in one of these 
fabulous hangovers of constitutional history. So maybe.

>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.  :-)

I can't see any need for a strong legislature for wizards. It's a small 
community. Provided they stick to general laws (eg: wizards shouldn't go 
round killing muggles, etc) I think the wizarding world is happy to leave 
the day to day work of standardising cauldrons to the executive.

Which reminds me of what I think JKR might have in mind a little with all of 
Percy's pernickitiness: Brussels/ the European Commission. That's a pretty 
untrammelled executive if you're looking for one, and it's well known for 
its ludicrously bureaucratic and soulless international standardisations of 
commercial products. The parallels stick out a mile. I think that its a 
pretty straightforward parody, although not one very obvious to US readers 
perhaps.

hmm, only my second post on-list, slightly long I feel -- sorry!

Gabriel

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