On Jurisprudence (was:Re: On the perfection of moral virtues)

[lizzyben04]

No: HPFGUIDX 169698

->
Goodlefrood:

<snipping history>
>
> Habeas Corpus simply means produce the body, and was rather
> for the opposite of keeping people out of dungeons. It was >
originally designed to get them out from dungeons once they
> were already there. The basic concept was to avert injustice,
> but was based at the time on Christian values, as I believe
> has been pointed out elsewhere today.
>> Oh, and I think the Greeks might have something to say about
> where democracy came about, although the barons no doubt would
> be pleased to know they are thought so highly of ;-)
>
> Basically then I disagree with the entirety of the above quoted
> material for my above set out reasons.
>

Lizzyben:

Well, I wasn't really aiming at a discussion of the details of
Anglo-American legal jurisprudence. What it basically boils down to
is that, as you've stated, that protections like habeas corpus were
created in order to "avert injustice." The Magna Carta averts unjust
rulers, by making all rulers bound to obey the law. The Constitution
averts injustice by guaranteeing basic rights to all citizens,
including the right to a fair trial, free speech, & equal protection
under the law. As such, these documents create basic ideals of
fairness & justice, which the legal system is later built around &
upon. That's not to say that the legal system meets these goals, but
at least the ideal is there in the foundational documents. 

There's no indication at all that such protections against injustice
exist in the WW. The Wizengamot has all the protections & safeguards
of the Spanish Inquisition. People can be jailed (and tortured) based
on one person's word, without trial, & without a chance to present
evidence. You can even be thrown into Azkaban based on the mere
*suspicion* that you've done something wrong. Meanwhile, people like
Malfoy or Snape, who have powerful allies, avoid imprisonment
altogether despite their crimes.

There's no real justice, only a system based on fear & favoritism. The
WW is a nation of "men, not laws," where who you know matters much,
much more than the regulations. This does not foster justice - it
fosters a lawless society. When people don't feel that they can appeal
to an impartial judge for justice, they begin to take matters into
their own hands & seek revenge instead - and we see this happen over &
over in the WW. From Hagrid on down, wizards commonly will seek
"revenge" for past slights or crimes - cause there's no getting
justice for them. In this society, might makes right, and power &
influence is what matters. It is a society that is rotten at its core.

We can see this operate in microcosm at Hogwarts. DD himself
encourages Harry & co. to violate the rules, as he himself violates
the laws w/regularity. DD rips the cup away from Slytherin at the last
moment to give it to his own House. Points are awarded & docked based
on blatant favoritism. The punishment for an infraction depends mostly
on whether you were discovered by Snape or McConegal, & whether you
are Harry or Draco. It's totally capricious, arbitrary, & unjust; and
the kids quite rightly begin to ignore the "laws" entirely - and take
matters into their own hands. Revenge & grudge matches ensue, just as
they do in the WW at large.


Goddlefrood:
> In your opinion perhaps, but they do have laws. There is a
> plethora of legislation in many forms, Codes, Decrees and
> Statutes to name but three types. These suggest that, although
> there is corruption, the basic precept is not dissimilar to
> our own. That the legal system in the WW does not work is not
> a matter I would contend.
>

Lizzyben:

Who makes those laws? There's no indication that there's any kind of
actual legislature, or that the wizarding population at large has any
voice in how the laws are formed. And the "laws" themselves seem more
like petty regulations, of cauldron size & the like, rather than
precepts to create a healthy society or a true judicial system. The
laws seem quite similar to Umbridge's "decrees" at Hogwarts and are
probably written in the same manner - some bureaucrat or official
makes an arbitrary decision, and now it's law. If people don't like
it, what can they do? Nothing, really. There's no elections, no
opportunity to vote or to have a voice in the process. If people think
that Fudge is a bad Minister, what options do they have to change
things?  The newspaper just reports MOM propaganda. They can't vote
him out, because the Minister is appointed from within the Ministry.
So normal people just live with it, while powerful people will plot to
use their MOM influence in order to get the desired laws & leaders.
It's a bit 1984-ish, a bit Stalinist - a totalitarian state, really.

Goddlefrood:

> During the first rise of Voldemort imprisonment without trial
> was possible and I am sure there were necessary promulgations
> by the Minister, or more probably Barty Crouch Senior, to the
> effect that witches and wizards could be imprisoned without
> trial. Cough :: Guantanamo Bay :: cough.
>
> I have lived under a state of emergency twice in the past 7
> years. They are not a great deal of fum and paranoia is rife.
> Just because you are not paranopid does not mean *they* are
> not out to get you. The WW most probably would have been
> similar in that when a state of emergency is declared basic
> rights and freedoms that might otherwise be taken for granted
> fly out of the window.

Lizzyben:

But when the novels begin, it's been 11 years since Voldemort was at
large. He's been defeated, the death eaters are in jail or dispersed,
and wizarding society has gone back to normal. The WW is not in a
state of emergency, nor is it at war. Basically, for 13 years the WW
was at peace. Yet they still have this draconian system in which
"basic rights & freedoms" are thrown out the window. That's not a
reflection of any temporary state of "martial law," that's simply how
this society operates.

Goddlefrood:

<snipping human rights legislation>
>Once more I say the Human Rights legislations are recent
> developments and would have had no bearing at all on the
> development of the WW and its rights. It is difficult to
> separate the concept, but not impossible. I try not to
> impose my personal values on a system like the WW, which
> is corrupt and very different from anything seen in the
> real world for centuries, in terms of its legal system,
> and other of its values, actually.


Lizzyben:

I'm familiar w/human rights legislation and international law. If they
have no bearing on the WW, they SHOULD. Just as treaties like the
Geneva convention guarantee some minimum rights for POWs, the WW
should have some minimum rights for prisoners in their own society.
They should have some legal precepts that guarantee that a human being
is entitled to certain basic rights & protections. They just don't.
It's a very backward, cruel society.

> > lizzyben04:
>
> > If the sentient beings are so content & happy, why do we
> > keep hearing about "goblin rebellions"? (Unlike Harry, I
> > paid attention during History of Magic!)
>
> Goddlefrood:
>
> As did I. The last one which is dated occurred in 1612, iirc.
> The goblins are now looking after the majority of wizarding
> world money and also fulfilling the role of bookmakers. Of
> the sentient beings they seem the most trusted, but they
> are far from integrated. Kemper said it well in his recent
> post, so I have little to add, but to commend that post of
> Kemper's to you (generic).
>
> Elves do not seem overly displeased with their lot, but of
> course we do not know how they became enslaved. 

Lizzyben:

Goblin rebellions are highlighted so many times that I think it's got
to have some relevance to the final novel. They've fought many times
against discrimination & prejudice, and the newspaper says that there
are still subversive goblin groups who are working against the MOM.
(HP Lexicon). The goblins will probably join Voldemort, just like the
giants did, because they didn't get the rights they want under the
MOM. As for elves, Dobby didn't seem to happy with his lot, nor did
Kreacher. They are slaves, and while they might not mind being
servants, they do mind being forced to serve wizards that are cruel to
them or don't respect them. But what options do they have? None -
except perhaps turning on the WW. Here again, the injustice &
oppression of the WW practically guarantees that they'll always have
enemies or traitors waiting to turn on them.

Goddlefrood:
>
> The Order was not an army, the DA wasn't either, it was an
> ironic name based on Fudge's paranoia, a joke in other words,
> little more nor less. The MoM has not taken any counter
> measures to the Order at all, and as I said earlier, why
> on earth would it seeing as they are on the same "side".
>
> Supreme Mugwump, etc.

Lizzyben:

The Order isn't an army, but it is a totally independent, powerful
organization that the MOM has no control over. They don't like that
very much; as shown when they used Umbridge to try to sabotage the
group's activities. If & when V was defeated, the MOM would still be
worried about DD's power. It's a temporary alliance of convenience,
nothing more. And these 3rd party groups keep springing up because the
MOM is so corrupt, weak & undemocratic. The DA, the Order, & goblin
groups were all created because people were upset about the MOM's
authoritarian actions. Without elections, 3rd party groups are the
only way for normal people to get reform or subvert the MOM's
authority. In order to maintain power, the MOM needs to stamp out
these types of groups wherever possible.

Goddlefrood:

> Jealousy may creep in. The Order is not subverting the MoM,
> IMO. That's not to say I think the MoM has any great virtue,
> but while it may be corrupt and have little separation of
> powers to boot, at least it is now trying to do what is right,
> rather than what is easy, in my reading of it. Doesn't mean
> I like the underlying ethics of the matter, but then it is all
> just fictional and highly amusing.

Lizzyben:

Well, I guess they're now trying to do what's right, but are so
corrupt & inefficient that they have no idea how to go about it. And
they do do "what is easy" when they lock up patsies like Scrimcrour
for PR purposes instead of finding the actual Death Eaters. They also
try to persuade Harry to plug for them, again for PR purposes, to give
the appearance that they've accomplished something. It's all about the
image over the reality, and giving the appearance of protection over
actually protecting people. The underlying ethics of the WW are a
mess, a total mess. And I guess it is amusing on some level until you
consider - this is the society that Harry is being asked to die for?
This is the society that our heroes are risking their lives & their
futures for? Doesn't seem fair to me. I'd probably be joining
a goblin rebellion. :)