Law, Human Rights and democracy in the Wizarding World

[Gabriel Rozenberg]

No: HPFGUIDX 31146

[Elizabeth Dalton wrote:]

>I take back what I wrote earlier about the wizard world being a 
>dictatorship.
>(I'm tempted to go back to my earlier diagnosis of anarchy, and to throw 
>that
>label at the British system as described by Gabriel, but as an American, I 
>think
>I should just shut up about the failings of other people's political 
>systems.)

Actually, "elected dictatorship" pretty much sums it up in Britain, at least 
on the surface. However, the system has hidden strengths.

>On reflection, I know there are laws and a method for passing them. Arthur
>Weasley is apparently not in violation of laws regarding enchanted Muggle
>artifacts, for example, as long as he doesn't actually *fly* that car of 
>his.
>(Of course, according to Molly, he *wrote* that law, including the loophole 
>he's
>exploiting.) And he's working on some kind of "Muggle Protection Act" as 
>well.
>So apparently Arthur's position in the Ministry is such that he can author 
>laws
>and advocate for their passage.

This certainly does suggest there is some kind of external body which 
approves the law, but I'm not sure JKR really has one in mind. British laws 
tend to start with departmental ministers and are put together with their 
civil servants. Then Parliament has a look at them. Since ministers have an 
a priori majority in the Commons, the Lords can be overruled, and the Queen 
may not use her veto, the bill will pass. So the legislature is not actually 
very important when it comes to making laws. An MoM system where ministers 
just wrote laws as they wanted would not feel so very jarring to the British 
mind as to the American.

Of course, the balancing power in the UK is that of the Commons to choose 
the ministers (and the people to choose the Commons). If that's the case 
there ought to be some body which could choose to kick out rogue ministers 
if they went Bad. Once again I'd like to press my theory that the body which 
does this, which is the closest the wizards have to a legislature, is a 
dormant witenagemot which meets only in times of crisis. This would explain 
the apparent absence of MPs or whatever but would also explain why the 
ministers do feel constrained to act within the rule of law. It would also 
be appropriately archaic.

[cindysphynx wrote:]

>As I indicated, I'm in the camp that believes the wizarding world is
>not a dictatorship.  So let's see if any of my U.S.-based theories
>haven't been entirely gutted.
>
>Cindy wrote:
>
> > >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.
> > >
>
>
>Gabriel wrote:
>
> > 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.
>
>
>Doesn't that prove my point that Fudge is not a dictator?  He
>expresses doubt that he can secure the highest honour for Snape,
>which is something that wouldn't trouble a true dictator at all.

Indeed. However, I think my point was that he might not be a dictator but 
still have far more control over his department (ie, Magic) than, say, that 
Alcoa man has over the US economy. To my mind Fudge's comment sounds like 
he'd have to grapple with a favours-for-favours _bureaucracy_ than with a 
legislature of any kind. I'm sure the MoM is highly bureaucratic, partly 
because if it were more efficient then it would be too powerful. Getting 
things done would in part require skilful handling of of personal loyalties 
and personalities.

>Gabrielle [sic!!] wrote:
>
> > 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.
> >
>
>I need to gather up the other lawyers on the board for a frontal
>assault to beat back the assertion that trials are much fairer in
>Britain.  :-)  For instance, the judge's ability to overrule the jury
>in the U.S. exists as a safeguard for the defendant.  IIRC, the judge
>can overrule a guilty verdict and free the defendant, but can never
>pronounce the defendant guilty if the jury has found otherwise.  Many
>people also believe that having public trials and allowing media
>access is also of benefit to the defendant in many cases, as it
>prevents "railroading."  I could bore everyone senseless with a list
>of criminal law safeguards in the U.S. that may (or may not) be
>present in Britain.  But I can't get on board with the idea that the
>British way is "much fairer."  Not yet, anyway.  :-)

I put that in to provoke you :-). Largely of course both countries have fine 
judicial systems, and I take the point about overruling only ever going in 
one direction. I'm not too convinced about "railroading" however. In the UK, 
the judge will often rule that certain evidence may not be revealed to the 
jury (eg, past convictions of the accused). If the press were allowed to 
print such things it would clearly remove a safeguard on the innocent. Oh, 
and we do _of course_ have "public trials and media access"; the difference 
is that in the UK nothing can be reported subjectively until the case is 
over.

>I think that we can surely agree, however, that trials in the U.S.
>and in Britain are *much* more fair than wizarding trials.
>

Indeed. It does seem like the MoM runs the trials. That's not an encouraging 
thought. However, the jury did at least have the chance to rule for Bagman 
despite what seemed like a somewhat one-sided trial (judge v accused with no 
lawyers to be seen).

>Cindy wrote:
>
> > >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.
> >
>
>Gabrielle wrote:
>
> > But he's a minister! Seems unlikely.
>
>
>I don't think I expressed myself well there.  I meant that when
>Crouch Sr. was the Head of Magical Law Enforcement during the
>Voldemort years, he was akin to our friend John Ashcroft, the U.S.
>Attorney General and head of the Department of Justice.  I have no
>idea how that correlates to the British legal system, but I'd love to
>know.
>
>Cindy

Oh, no, I don't really think you do.

But before that. As regards Crouch Sr: rereading GoF, I think you're 
probably right to see Crouch in an Ashcroft role. But Ashcroft is surely not 
the head of the judicial branch in the US? I thought that was Rehnquist/the 
Supreme Court. I think that Crouch's role, rather than showing that there is 
a separation of powers in the wizarding world, actually implies far more 
that there is no such thing. It adds to the view that the MoM is an 
executive which enforces the law through its own courts, as well as passing 
new ones here and there. Hence my starting salvo, that the attempt to impose 
a US model (ie, of three separate branches of government) just won't work 
here.

Now, just in case you were wondering how it correlates, here goes. The 
Attorney General is appointed by the Prime Minister. He's the government's 
chief legal adviser. He's usually a member of the Commons like most 
ministers. We do not have a Department of Justice. The head of the judicial 
branch is the Lord Chancellor, and he advises the PM who advises the Queen 
on the selection of senior judges. (Odd but true. He advises the Queen 
direct on appointing junior judges. The Queen never refuses the advice of 
any of her ministers btw.) The Lord Chancellor may sit in criminal cases as 
the most senior member of the judiciary, despite being speaker of the House 
of Lords (to which he will have been appointed, normally by a previous Prime 
Minister) and a member of the (executive) Cabinet. The office of the Lord 
Chancellor, having been around since the year 605, is something of a mess, 
as you can now see. The LC embodies the (admittedly, rather controversial) 
'fused powers' of the UK system which Americans simply refuse to believe can 
coexist with democracy and the rule of law. I think this kind of antiquated 
medieval mishmash is just the thing JKR has in mind.

Gabriel

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