The Politics of Harry Potter: Corrupt Law and Totalitarian Government
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
The Wizengamot in Harry Potter and the Order of the Phoenix – Image used pursuant to the Fair Use doctrine.
We take it for granted that if the State does something to harm our interests that we can often appeal against that decision somehow, whether to the department involved or to the courts.
We assume that we can vote for our representative in the national Parliament, that any time we are accused of a crime that the State will give us a fair hearing and that if we are found guilty the punishment will be reasonable. This is the norm across most of the world now, but it is not unfortunately the position for someone we all know very well. In JK Rowling’s famous books, the Ministry of Magic has an incredible amount of power with very few ways of ensuring it is used properly. This lack of control on the Ministry is arguably what makes it so easy to infiltrate and take over without the wizarding community realising or having an opportunity to protest, but is also a problem much earlier in the Harry Potter series. It is a good study in how not to organise a state, and it’s through using examples from the series that we can really begin to understand how important it is that executive and legislative power is controlled by and accountable to the people, and that there are limits on what power it can have over us.
State censorship & freedom of speech
““All right, Fudge is leaning on the Prophet…””
The First Amendment of the USA, the Article 10 of the European Convention of Human Rights, Article 10 of the UK’s Human Rights Act, Article 5 of the German Basic Law… there’s hardly a constitution, human rights Act or international agreement on human rights that doesn’t fiercely protect freedom of expression. The ability to contribute to debate in society is the foundation of democracy, and protecting everybody’s right to publish their views is the surest way to make sure that the voices of minorities are heard. Obviously most states put some limits on this freedom for reasons of state security or to prevent the encouragement of crimes, but these limits are strictly monitored by constitutional or international courts – and of course the people. And political expression is the most heavily protected of all, since it is so incredibly important for democracy and for being able to criticise the government. It is actually impossible to bring any type of claim in the UK against somebody for something they said in Parliament, because the courts refuse to question anything said there.
Contrast the Daily Prophet. For one, it seems to be the only newspaper anybody takes seriously, at least to begin with. This is a real problem for different political views being represented in the wizarding world and for ensuring there is proper scrutiny of government. Secondly, it seems to be under significant control from the Ministry of Magic throughout much of the books, especially when many wizards – including Fudge – doubt the truth of Harry and Dumbledore’s story that Voldemort has returned and are determined to ignore the signs that he is back. It makes publicly contradicting the Ministry very difficult if the one well-known paper is being censored – Harry is in fact only left with the Quibbler, which is then immediately banned from Hogwarts. There aren’t any of the protections of free speech we would expect from our own governments.
We see undue interference with Hogwarts too, during Umbridge’s time as High Inquisitor at Hogwarts. Of course the State has to ensure that the education of its young people is up to scratch, but it doesn’t justify many of the Educational Decrees passed that year- or the refusal to teach Harry and his fellow students how to combat Dark Magic. The UK might be worried about the government giving too much autonomy to free schools, but too much control is just as much of a problem.
Democracy & Accountability
Almost everyone in the wizarding world, and most of JK Rowling’s readers, agree that Dumbledore would have made an infinitely better Minister for Magic than Cornelius Fudge. After the mistake of appointing Fudge, you would hope that choosing the new Minister would be done carefully and by at least consulting the wizarding community – after all, Voldemort is back. And yet we are simply introduced to Scrimgeour, and equally to Thicknesse when Voldemort manages to infiltrate the Ministry. As there had never been an open election or even discussion about a new Minister it’s easy enough for Thicknesse simply to be presented as the new Minister without anyone daring to speak out.
It’s this way in which the Ministry simply decides what it is going to do in near secrecy and then presents it to the people which makes it so easy for things to go wrong very quickly. There seem to be enough Muggle-born wizards and witches that the Muggle-Born Registration Committee would not have come into place so very easily if there had been a way to oppose or block the initiative publicly (remember, Voldemort is trying not to draw attention to the fact that he is running the Ministry so he does everything within the Ministry’s usual powers). Without a Parliament, which must approve legislation and can ask the Minister how his policies are working, it’s much harder to stop abhorrent policies being introduced. And without political parties, which can argue about new policies, even the simplest decision is out of the hands of the people – who’s to say that the wizarding population wouldn’t like Ali Bashir to be able to sell flying carpets in the UK? Instead legislation is left to the Ministry, and even individual members of specific Departments. We know Arthur Weasley wrote the Misuse of Muggle Artefacts Act, because he put in a loophole specifically designed to allow him to perform magic on his Ford Anglia.
Just as worrying is the complete secrecy surrounding the Department of Mysteries. Whatever we might think our governments wrongly keep secret in the name of national security, it doesn’t involve prophecies about us that we don’t have the right to see, instruments which can turn back time and brains in jars (hopefully!).
And of course, any discussion of accountability in the wizarding world has to take note of Lucius Malfoy’s influence over the Ministry – from Buckbeak’s trial to being given prime Quidditch World Cup tickets as a thank you for a charitable donation. We have so many worries about lobbyists, political donations and those with a direct line to the President’s/ Prime Minister’s office in the real world that it shouldn’t be surprising that a Ministry with much less accountability has the same problems, but it is concerning all the same.
“‘Oh, so that’s why he wasn’t prosecuted for setting up all those regurgitating toilets! What an interesting insight into our justice system!’”
When the government makes a mistake or acts illegally, the first point of call is the courts. And we also depend upon the courts to dispense criminal justice fairly and consistently. In a significant part of the world at least, we know we can depend upon the impartiality of the courts in enforcing the law against both us and the government. And yet in Harry Potter’s world we see that even if there is a judiciary – the Wizengamot – the proceedings are presided over by the Minister for Magic. This violates the hallowed principle of the separation of powers – that the three branches of the State (judiciary, legislature, executive) should have separate roles and be able to hold one another to account.
We also see instances where ‘justice’ isn’t exactly consistent. Harry receives a warning letter for a spell being performed by Dobby in the Dursleys’ house, is not even told off for blowing up his aunt and is temporarily expelled for performing defensive magic. We also see inconsistent law enforcement when Willy Widdershins escapes prosecution for turning in the DA. Whilst we might allow plea bargains with gang members in the real world, and so Karkaroff’s release makes some sense, turning spy for the Ministry on a completely different issue is somewhat different and much less justified because it’s irrelevant to his crime.
Buckbeak’s ‘appeal’ is also a travesty of justice- bringing an axe to the hearing makes it very clear that the decision has already been made. And when Sirius escapes Azkaban the Ministry decides that the Dementor’s Kiss can be performed on him, a change of sentence that was never approved by any judicial body. Imagine if the government decided that an escaped murderer would be killed if found! This is even before we find out in the fourth book that Mr Crouch ordered Sirius to be sent to Azkaban without a trial in the first place.
Even for those who do make it into a courtroom, we see in the Pensieve and in Mary Cattermole’s hearing that Dementors are present at hearings. There is little that could do more damage to the ability to give a calm defence than having Dementors present. Worse yet, if you are convicted then they become your jailors, depriving you of every happy thought. If there is anything which can count as cruel and unusual punishment, that is it.
Equality & Prejudice
“‘Dobby has never been asked to sit down by a wizard — like an equal –‘”
The wizarding world is not a good place to be different. Giants, centaurs, house elves, werewolves, goblins and Muggle-borns are just some of the groups we see are treated as second-class citizens or even slaves by at least some of the wizarding community. Learning that Hagrid is half-giant even makes Ron do a double-take, and Harry’s tolerance towards all magical beings is seen as naïve by many and downright stupid by some. He’s often having to play catch-up to learn all the prejudices which wizards are simply brought up to know and even believe themselves.
It’s obvious that the law can only achieve so much in this area – many countries have outlawed many types of discrimination but that doesn’t stop people from continuing to discriminate. What cannot however be argued with is the fact that laws can protect minorities, and can start the process of changing people’s attitudes. In contrast however, the Ministry bans non-human magic creatures from carrying wands, permits house elves to be enslaved for generations at a time (“‘I is looking after the Crouches all my life, and my mother is doing it before me, and my grandmother is doing it before her’”) and does nothing to help wizards who face prejudice due to being a werewolf. And this is even before we get started on the Muggle-Born Registration Committee.
Perhaps also quite telling is the fact that Squibs (those born into wizarding families who can’t do magic) are simply not discussed, and usually leave to join the Muggle world. We only meet Argus Filch, who was given a job by Dumbledore – very much a tolerant wizard, since he has hired a centaur, a half-giant and kept a part-goblin on the staff (Flitwick) in his time as headmaster. Whether or not they would be happier living with Muggles, it is strange that it seems common for Squibs to be entirely cut off from their families. After all, it’s not as if you can discover this at birth – Neville’s family were worried about him until the age of 11. Surely by that point they’re a proper part of the family, magic or not?
The lack of support from the Ministry for any sort of rights for non-human magical creatures stands in contrast to really quite progressive equality laws we see worldwide now. And it’s especially important to note that since centaurs or giants cannot exactly live with humans, the only people they can have any interaction with are wizards. The Ministry surely has a duty to show them respect, at the very least?
Enforcement & detection
A counterpoint to the over-interference of the Ministry of Magic is its complete inability to enforce its own laws. Students may be banned from performing magic in front of Muggles, but the incident with Dobby and the pavlova would seem to suggest that the Ministry is in no position to know who has cast a spell even if they know where it was cast (short of performing Prior Incantatem on every wand nearby). This leaves the job of enforcing the rule against students performing magic during the school holidays up to the parents – and you can bet that the Malfoys aren’t enforcing it! It’s unfair on students like Harry and Hermione, who wouldn’t be able to get away with practising Charms during the holidays as they live in non-Magic households, whereas the Ministry wouldn’t pick up on the Weasley boys hexing each other at home (if their parents allowed it!) because they live in a magical household.
Perhaps it’s for the best that the Ministry doesn’t have such a strict control on who is performing what magic where. However, as in the real world this lack of knowledge does have its problems. We hear about the Ministry struggling to know who was acting under the Imperius curse and who was not during Voldemort’s first rise to power. It is the same problem we have with rape and sexual assault claims – you’re being asked to assess the intention with which somebody acted and your decision on whether someone is lying or not is both very difficult and hugely important.
State powers of enforcement are crucial to the law’s effectiveness, and we can see how important this is in the wizarding world too. In a world where power is based on skill with a wand rather than access to a gun, the Ministry has big problems:
“‘The trouble is, the other side can do magic too, Prime Minister.’”
Perhaps the thing we can best learn from Harry’s world is that State power has to be strong enough to enforce the law without being so strong that we have reason to fear the State – in fiction and in reality.