FLINT-y Pensieve/Good & Evil/Fourth Man Revisited

[elfundeb at aol.com]

No: HPFGUIDX 38425

Cindy on the FLINT-iness of the Pensieve scene:

> The reason, then, that all of this strikes me as FLINT-y is that 
> there is so much missing or wrong.  Defendants don't have lawyers 
> (or, at least, lawyers with dialogue).  We have the role of judge 
> and prosecutor roled into one.  We have Bagman interacting with a 
> biased member of the jury.  We have the audience murmuring and 
> jeering.  We have the defendant's mother sitting next to the judge.  
> We have no recusal of the defendant's father (and no, bellowing "You 
> are no son of mine!" doesn't count).
> 
I didn't have a problem with the impression JKR leaves of a primitive legal 
system; I believe that was intended.  The WW seems to have always operated 
apart and largely invisible from the English world from which our notions of 
justice arise.  Further, rounding up and trying a large number of suspects at 
the conclusion of a reign of terror is a practice with a very long history 
(the execution of Robespierre and his cohorts during the French Revolution 
comes to mind) and dispensing with due process is very common in such 
situations; it's quite simply a reaction to the fear the terrorists have 
provoked.  Someone has already remarked that that's exactly what the U.S. did 
after 9/11.  In that regard, the attention given to the process at the 
Nuremberg trials and the extent to which the defendants there were given the 
kind of procedural safeguards we've come to expect in Britain and the U.S. is 
truly remarkable.

Given the small-town nature that the wizarding world seems to have, and the 
fact that the WW is sometimes quite medieval in its outlook, I would not be 
surprised if in the ordinary course prosecutions might have been handled in a 
relatively informal manner, with a defendant confronting his own witnesses in 
person (as we don't see an actual trial, only a plea bargain attempt and two 
verdicts/sentencings, we don't know if the defendants were given the 
opportunity to question the witnesses who testified against them).  So I 
didn't really expect lawyers.  Similarly, the fact that Crouch apparently 
served as judge and prosecutor doesn't bother me; the jury is still the trier 
of fact.  The jury seems to have been quite large (as I read it, the entire 
right hand side of a room containing at least two hundred witches and 
wizards), so it wasn't just one or two people dispensing justice.  Jurors 
conversing with a defendant or a member of the audience standing up to 
comment on what a witness is saying (Dumbledore on Snape) also shows that the 
process is still not very advanced.  Personally, I think the DE trials taxed 
the WW's resources to a great degree, and corners had to be cut.

Cindy's right that clearly the tribunal as presented shows that the WW has 
made little attempt to cleanse the proceedings of conflict of interest.  But 
I think that, too, was intended.  The conflicts of interest that pervade 
these proceedings is very consistent with the impression we've been given 
that there's just a bit of corruption in the MOM.  So we as readers know that 
wizarding justice is deeply flawed, allowing and even encouraging us to 
question the correctness of the verdicts reached.  So I'm free to believe 
that Ludo Bagman is evil despite his acquittal, and that Malfoy's Imperius 
defense succeeded because he paid off the right jurors, as he paid off the 
governors of Hogwarts to have Dumbledore removed.  But IMO, this doesn't make 
the proceedings FLINT-y.  

But there are also elements that are unbelievable, such as not giving the 
defendants at Crouch's trial the same opportunity to testify in their own 
defense that Bagman was allowed.  It's one thing to have a process in which 
the defendants have few rights.  It's another to not even have a consistent 
procedure.  Personally, I think JKR just rushed through this, but I really 
don't know what to believe.  In Bagman's case, Crouch kept getting cut off by 
the crowd so that the jury never even knew what the proposed sentence was 
that they were voting on, and as a general matter the idea that Crouch 
offered the cases up to the jury to decide, in a single vote, on a verdict 
and a sentence of his own choosing, is somewhat troubling. 

> Now, I assume that there are legal systems in the world where this 
> sort of kangaroo court happens.  Unless JKR really intends to send a 
> message that wizarding justice is a farce, I would have expected her 
> to change a few things to make these scenes more realistic and 
> believable.  

I may be a cynic, but I didn't find anything unrealistic about the bias shown 
in the Pensieve.  Biased proceedings happen right across town from me, in the 
form of congressional hearings.  During the recent Enron hearings one of the 
congressmen flat-out told one of the Enron executives that his testimony was 
unbelievable, then asked Sherron Watkins leading questions in order to elicit 
the testimony he wanted.  IMO, that's not much different from what Crouch did 
at his son's trial, except that Congress doesn't have the power to put people 
in prison.

David observed:

> I suspect that the Pensieve scenes show a Wizarding World which is 
> trying to be fair, and more or less thinks that it is fair.  Perhaps 
> these are not show trials but they are more like children in the 
> playground inventing frontier justice as they go along?  

This is an interesting thought.  I get the sense that in setting up the 
system an attempt was made to be fair; it's clear that some innocent people 
were being controlled with the Imperius Curse, and certainly the MOM would 
have wanted to sort this out correctly.  (Crouch/Moody says in class that it 
was "some job for the Ministry, trying to sort out who was being forced to 
act, and who was acting of their own free will."  Of course I think he's 
laughing under his sleeve at how many DEs walked free.)  But the snippets of 
trials that we see reflect such obvious bias and inconsistencies that it 
seems unlikely that the participants (and the public, if the proceedings were 
not secret) were not aware that the desire for fairness had succumbed to a 
stronger desire to put away the suspects for good (unless, of course, they 
were popular and successful Quidditch players, or had a lot of money and 
prestige, etc.).  Dumbledore suggests just that when he cannot answer Harry's 
question about the possible innocence of Crouch Jr.

Eloise on sorting and the Slyths:

> Now, the House system *is* troublesome, I agree, in that it does seem that 
> it 
> must reinforce whatever traits are inherent to the members of each. I 
> personally think that the point of the sorting is to sort students 
> according 
> to their natural inclinations, their temperaments and abilities. It does 
> not 
> then dictate what they decide to do with these. However decisions by 
> members 
> of any house to act in a way that seems to be outside the prevailing norm 
> for 
> that house must be extremely difficult. OTOH, perhaps it is only when we 
> know 
> our own nature fully, when it has been allowed to develop, that we are 
> fully 
> capable of deciding how to use our lives. This seems to be the path Snape 
> followed.
> 
[snip]

> As I have pointed out, one of the advantage of the view that sees the 
> dualism 
> in HP not so much as a good/ evil conflict, but a conflict of world views, 
> one of which recognises such moral values (the Light side), and one which 
> does not ( the Dark side) is that it allows for grey actions such as this 
> on 
> the part of people who are supposed to be on the side of right.
> 
Your points are excellent.  In fact, it was my own concern that the sorting 
system left the Slytherins outside of the crucible of morality that led me to 
develop my theory (which sank like a stone) of the Ignatian sorting hat that 
could project the effect of each alternative on the student, in order to 
prevent the possibility of sorting someone into Slytherin who would have 
developed a moral conscience had that person been sorted elsewhere.  So Snape 
was properly sorted into Slytherin; given his mindset when he arrived at 
Hogwarts, he could only make the "right" choices after having been fully 
exposed to the amoral universe in which an examination of conscience is 
unnecessary in making personal choices.

Cindy on my attempt to jettison Avery from the Fourth Man hovercraft:

> I thought the brilliance of the
> Fourth Man Theory is that it identifies Avery as the Fourth Man in 
> the Pensieve.  If you break that link, you have gutted Fourth Man.  
> You are back to the Dark and Primitive Pre-Fourth Man Era, in which 
> no one even *tried* to figure out whether the Fourth Man in the 
> Pensieve scene would be important.  In fact, most everyone assumed 
> he was a throw-away character, because he didn't even have a name.
> 
I probably should stay out of this, since I watched the development of Fourth 
Man Avery from the distant sidelines, but I thought the theory grew out of 
the realization that there were two seeming red herrings hanging out in GoF:  
a nameless, faceless presence who added nothing to the Pensieve scene, and a 
mysteriously highlighted character in the graveyard scene with no apparent 
narrative importance other than to take Voldemort's Crucio hit.  Fourth Man 
Avery simply linked those two together.  

And Fourth Man Avery is not dead yet, though he seems to require help from 
Evil! Fudge to succeed, and I'm not sure that Fudge (even if he is evil and 
not merely aiding evil by being ineffectual) would be able to quell the 
outcry that might arise among the WW populace, still IMO deeply scarred by 
the events of the Voldemort era, if he were to release, not just a convicted 
DE, but one convicted of a post-Voldemort-era crime.

But the primitive, pre-Fourth Man era will not return even if Fourth Man 
Avery was buried at sea.  Think of it this way:  A new, post-Fourth Man Avery 
era (or perhaps a parallel Fourth Man without Avery universe) provides ever 
more opportunities for not one, but two complete backstories -- Avery, if 
relieved of the burden of the Pensieve trial, has big blanks on his slate now 
waiting to be filled.  And as for Fourth Man, I'd bet my last dollar we 
haven't heard the last of him.

Lastly, Eloise on the Burrow:

> (BTW, one of my chidren's books states that weasels live in the *burrows* of 
> other animals. What's the name of the Weasleys' house? I wonder who it used 
> 

How about the Pettigrews?  After escaping the sewers, Peter the rat went back 
to his old childhood home, and found a new wizard family living there, one 
with young children eager to adopt him for a pet. . . .

Debbie, not sure if it was a good idea to work from home today


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