? about MoM Political and Legal Systems - and Death &Justice

[alhewison]

No: HPFGUIDX 37054


 Brenna wrote:
 
> And what happened to "innocent until proven guilty"? Hagrid is 
> hauled of to Azkaban without any preface, Harry receives an 
> expulsion threat for magic that Dobby did, and Fudge doubts 
> Harry because of a tabloid  article! <<
> 
Pippin wrote:

> And Sirius was imprisoned without trial. The broad powers of 
> Crouch as Head of Magical Law Enforcement and   judge of the 
> Council of Magical Law are reminiscent of the Scottish legal 
> system which was based on Roman models. "Innocent until 
> proven guilty" is a principle of English common law and did not 
> apply in Scotland as late as the 18th century.
 
snip 

> One may theorize that the wizarding courts are also based on 
> Roman models. Dumbledore, whom I assume is English, 
> applies the "innocent until proven guilty" standard to his 
> governance of Hogwarts, but  that does not mean it is a principle 
> of wizarding jurisprudence as a whole.
> 
I've wondered instead if they use the principle of "justifiable" 
internment -(my words not an English Legal Phrase). Certainly in WW2, 
against terrorism in Northern Ireland, and more recently with regard 
to the Bin Laden threat, the British Government have legalised 
Internment without trial (and without charge) to intern those whom it 
believes to be a threat to its National Security. This is obviously a 
hugely contentious issue as it goes against all our Fundamental 
Freedoms, but it has been used. 

I think that Sirius was caught in a time of war - as although the 
events took place after the fall of Voldemort, the Wizarding World 
would still not have adjusted to its Peace Time status. I don't 
believe that this justifies spending 12 years in Azkaban, but it 
might explain how such an iniquitous act could have happened.

My argument for internment has perhaps more difficult explaining the 
imprisonment of Hagrid, when National Security was not at stake, but 
perhaps the wizarding world is more woolly in its definition of this. 
If the Wizarding World is very small, then any threat to its 
children - the next generation - would be seen as a threat. (Ok, I 
think I've gone off on a bit of a tangent to try and prove my point 
and failed!!).

I think the issue of Harry's expulsion is slightly different - as it 
was only a threat. Interestingly, the threat wasn't used against him 
when almost immediately he was under threat of expulsion for driving 
the car to Hogwarts. You'd think perhaps that Dumbledore etc would 
have viewed Harry's involvement in the car incident as more serious 
than Ron's, as he had so recently blotted his copy book. Yet this 
wasn't even mentioned (I think that the school must have been 
informed although the evidence almost points to the contrary).

Onto a slightly different and hugely contentious issue. For me, 
Capital Punishment is simply too abhorrent, and the taking of life 
too wrong to be used in anything other than "extreme circumstances". 
I'm not even sure I know what I mean by extreme circumstances. I 
don't know what sort of a person living today could fulfill this 
criteria - without being martyred, and almost more dangerous dead 
than alive.

One reason that we don't have Capital Punishment in Britain (it still 
exists on our statute books for 3 crimes including treason and for 
some reason Arson in a Naval Dockyard) is that we have seen so many 
Miscarriages of Justice. Just imagine if the Wizarding World had 
tried Sirius, and they had had the Death Penalty. The evidence would 
have pointed overwhelmingly towards Sirius' guilt. Ok, he could have 
said he was innocent - but his only proof is living in a sewer as a 
rat, hardly compelling when judged against the more tangible and 
readily available evidence against him. For me, sanctioning the 
judicious murder of even one individual who is later proven to be 
innocent highlights the fundamental problem with such an 
extreme "Punishment" - there can be no going back. 

I do accept that in the Wizarding World containing "villains" is much 
more problematic given their extra powers, and could be used as a 
justification for using Capital Punishment. And yet even here, Sirius 
(and of course Crouch junior) are the only known prisoners to have 
escaped from Azkaban; so certainly until recently the wizarding world 
had a secure place to incarcerate even the most dangerous of 
criminals rather than kill them. All is of course different at the 
end of GoF, when it seems that they are once again in a State of War -
 even if the likes of Fudge cannot bear to admit it.

Ali

Who is hoping that people will not flame her too much for voicing her 
own personal views, but interested in the other view point.