1. Harry Potter and the Law

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University of Louisville – School of Law
Legal Studies
Research Paper No. 2007-05

Thomas Jefferson School of Law Legal Studies
Research Paper No. 829344

Harry Potter and the Law

Jeffrey Thomas University of Missouri-Kansas City School of Law

Danaya C. Wright
University of Florida Levin College of Law

James Charles Smith
University of Georgia Law School

Aaron Schwabach
Thomas Jefferson School of Law

Joel Fishman
Duquesne University

Daniel Austin Green
Liberty Fund, Inc.

Timothy S. Hall
University of Louisville - Louis D. Brandeis School of Law

Andrew P. Morriss
University of Illinois College of Law; PERC - Property and Envir onment Research Center; George Mason University - Mercatus
Center

Benjamin Barton
University of Tennessee, Knoxville - College of Law




This paper can be downloaded wit hout charge from the SSRN Electronic
Library at:
http://ssrn.com/abstract=829344

2005 Research Paper Series





























This paper can be downloaded without charge from the Social Sciences Research
Network Electronic Paper Collection at http://ssrn.com/abstract_id=829344




Jeff Thomas, Danaya Wright, James Ch arles Smith, Aaron Schwabach, Joel
Fishman, Daniel Austin Green, Timot hy S. Hall, and Andrew P. Morriss, Benjamin
Barton, Harry Potter and the Law, TEXAS WESLEYAN L. REV. (forthcoming 2006)

Harry Potter and the Law

Harry Potter and the Law
1
Contents
Introduction: the Significance of Harry Potter by Jeffrey E. Thomas
……………………………
How Rowling’s Law of Families is not Family Law by Danaya Wright
………………………….
Family Life and Moral Charac ter by James Charles Smith
……………………………………..
Unforgivable Curses and the Rule of Law by Aaron Schwabach ……………………………..
Punishment in the Harry Potter Novels by Joel Fishman
……………………………………….
Status, Rules and the Enslavement of the House-Elves by James Charles Smith………….
Excuse, Justification, and Author ity by Daniel Austin Green
…………………………………..
Magic and Contract: The Role of Intent by Timothy S. Hall …………………………………
Rule of Man (or Wizard) in the Harry Potter Narratives by Jeffrey E. T
homas
……………..
Making Legal Space for Moral Choice by Andrew P. Morriss ……………………………….
Harry Potter and Dick Whittington: Similari ties and Divergences by Timothy S. Hall
…….

Introduction: the Significance of Harry Potter (Jeffrey E. Thomas)

J.K. Rowling’s Harry Potter novels are narratives bef itting the conference on The Power
of Stories: Intersections of Law, Culture & Literature , co-sponsored by Texas Wesley
University School of Law. While not dir ectly about legal themes, Rowling creates a
“magical world” complete with laws and legal institutions.
1 Hundreds of millions of
readers have immersed themselves in this world. As of April 2005, more than 270
million copies of the Harry Potter books had been sold worldwide.
2 The books have been
translated into 62 languages 3 and sold in 200 countries. 4 More than 10 million copies of
the most recent installment, Harry Potter and the Half-Blood Prince , were printed for the
first printing, which may be the largest first edition printing ever for a general interest
hardcover book.
5 And apparently, children are r eading these books. Some 60% of
American children between the ages of 6 and 17 have read at least one of the Harry Potter
1 See , e.g. , Susan Hall, Harry Potter and the Rule of Law: the Central Weakness of Legal Concepts in the
Wizard World , in R
EADING HARRY POTTER : CRITICAL ESSAYS at 147-62 (Giselle Liza Anatol, ed. 2003)
(Contributions to the Study of Popular Culture, Nu mber 78); Joseph, Paul R. and Lynn E. Wolf, The Law in
Harry Potter: A System Not Even a Muggle Could Love , 34 U. T
OL . L. R EV . 193 (2003); William P.
MacNeil, “ Kidlit” as “Law-and-Lit”: Harry Potter and the Scales of Justice, 14 L.
& LIT. 545 (2002). 2 Sara Nelson, We’ve Got Harry’s Number , Pub. Weekly, April 4, 2005, at 4. Of that number,
approximately 102 million copies are in print in the U.S. Carol Memmott, “Potter” Print-Run Record
Goes “Poof!” , USA Today, Mar. 31, 2005, at __.
3 Memmott, supra note 1. 4 Nancy Gibbs, The Real Magic of Harry Potter , Time, June 23 ,2003, at 60. 5 Edward Wyatt, They’re Just Wild About Harry , N.Y. Time, Mar. 31, 2005, at E2. USA Today reported
that this was a record, which was more than 4 million more copies than the previous record set by the first-
run print for the fifth book, Harry Potter and the Order of the Phoenix . See Memmott, supra note 1. The
N.Y Times apparently tried to verify this claim, but found that there were “few authoritative sources.”
Wyatt, supra.

Harry Potter and the Law
2
books. 6 These numbers led Time to declare the Harry Pott er books “the most popular
series ever written.” 7

The sheer size of the Harry Potter ph enomenon is enough to make it worthy of
consideration, but its cultural significance is more than its numbers. While children’s
literature may be discounted by some law and li terature scholars (this conference being a
notable exception), children’s literature is culturally significant because children are in
the process of developing thei r moral selves, and therefore may be more influenced by
stories than would adults.
8 Moreover, there are millions of adults who are devoted Harry
Potter fans as well. Eighteen percent of Am erican adults have read at least one Harry
Potter book.
9 Fans, adults and children alike, were so devoted that they bought nearly 5
million copies of Harry Potter and the Order of the Phoenix (the fifth book) within the
first 24 hours of its release.
10

This collection of essays about the law a nd Harry Potter explores the intersections
between law, culture and the Harry Potter stor ies. The collection begins with a group of
essays that, consistent with some of the previous legal literature,
11 are about the
limitations of law and legal institutions as depicted in the Harry Potter narratives. The
essays by James Charles Smith
12 and Danaya Wright 13 begin by considering the depiction
of families in the narratives, and show the limited role of law for family relationships.
The essay by Benjamin H. Barton
14 considers a more legalistic institution, the Ministry of
Magic, an institution depicted with majo r failings. The essay by Aaron Schwabach 15
6 How Things Add Up For Harry Potter , Baltimore Sun, June 6, 2004, 2F. 7 Gibbs, supra note 2. 8 See Lana A. Whited, with M. Katherine Grimes, What Would Harry Do? J.K. Rowling and Lawrence
Kohlberg’s Theories of Moral Development , in T
HE IVORY TOWER AND HARRY POTTER , at 182-208 (2003)
(exploring the way that the Harry Potter narratives allow children to explore the stages of moral
development in the model developed by Harvard psychologist Lawrence Kohlberg). For one reader’s
description of “growing up” with Harry Potter, see Kaavya Viswanathan, Growing Up With a Dose of
Magic , N.Y.
TIMES , July 31, 2005, at 4. 9 How Things Add Up For Harry Potter , supra note 5. 10 Wyatt, supra note 4; see also How Things Add Up for Harry Potter, supra note 5. 11 See Susan Hall, supra note 1; Joseph, Paul R. and Lynn E. Wolf, supra note 1. 12 John Byrd Martin Professor, University of Georgia School of Law. Email: jim@uga.edu. B.A. 1974,
Saint Olaf College; J.D. 1977, University of Texas. I would like to thank my daughters, Nicole and Kristin,
for encouraging me to read the first book in the se ries, The Sorcerer's Stone. After that, I was hooked.
13 Professor of Law, University of Florida Levin Colle ge of Law, Gainesville, Florida. I would like to
thank Jeffrey Thomas for his hard work putting together this symposium and the Levin College of Law for
its support of my work in this and related areas.
14 Associate Professor of Law, Univ ersity of Tennessee College of Law. B.A. 1991, Haverford College;
J.D. 1996, University of Michigan . The author gives special thanks to Indya Kincannon, Tom Galligan,
Glenn Reynolds, the participants of faculty forums at The University of Tennessee College of Law, and the
Law and Literature Conference, Gloucester, UK, 2005 , the University of Tennessee College of Law for
generous research support, and the Honorable Diana Gribbon Motz.
15 Professor of Law, Thomas Jefferson School of Law. J.D., 1989, Boalt Hall; B.A., 1985, Antioch
College. I’d like to thank my daughters Veronica and Jessica Schwabach, my sisters Karen and Jennifer
Schwabach, and my spouse Qienyuan Zhou for their patience with this project and many long discussions
on arcane points of Potter lore, and I’d especially like to thank Jeffrey Thomas for coming up with the
whole mad scheme in the first place and seeing it th rough. Harry himself couldn't have been more
dedicated.

Harry Potter and the Law
3
looks at the operation of the legal system through the lens of the “unforgivable curses”
and contends that they show an arbitrariness co ntrary to the rule of law. Similarly, Joel
Fishman’s
16 essay explores the arbitrariness of punishment in the narratives. A second
essay by James Charles Smith takes an intere sting middle ground. It explores the legal
status and wizarding conventions applicable to house elves, and points out the ambiguity
in the narratives as to whethe r the treatment of house elves is good or bad. Likewise, the
essay by Daniel Austin Green
17 uses the narratives to expl ore the roles of excuse and
justification in their relationship with legal authority and rule of law.

The next several essays find some positive aspects to the depiction of law and legal
institutions in the narratives. A second essay by Timothy S. Hall
18 shows how the rule
used to free Dobby the house elf can be used as a pedagogical tool to illustrate the
importance of intent in contract la w. The essay by Jeffrey E. Thomas
19 suggests that the
negative and satirical depictions of law and le gal institutions helps readers to focus on the
importance of individual accountability in making moral decisions. The essay by
Andrew Morriss
20 also examines moral decisions. He contends that in spite of legal and
institutional limitations, the wizarding world al lows for individual moral choice, which is
a recognition of the importance of individual liberty.

This group of essays concludes by returning to one of the themes of the Power of Stories
conference, the Dick Whittington story.
21 A second essay by Timothy S. Hall 22compares
the Harry Potter narratives to the Dick Whittington story, which reflects an interesting
cultural evolution from Tudor to modern time.

16 Assistant Director for Lawyer Services, Duquesne University Center for Legal Information/Allegheny
County Law Library, Pittsburgh, PA ; M.A., Ph.D., University of Wisconsin-Madison, 1969, 1977; M.L.S.,
Queens College (CUNY), 1973
17 B.S., 2001, University of Tennessee at Chattanooga; M.A., 2005, The New School for Social Research;
J.D. expected January 2006, Benjamin N. Cardozo School of Law.
18 Associate Professor of Law, Loui s D. Brandeis School of Law at the University of Louisville.
19 Vice Provost for Faculty Affairs, As sociate Dean for Academic Affairs, and Professor of Law, University
of Missouri – Kansas City School of Law. Email: thomasje@umkc.edu
. B.A., 1983, Loyola Marymount
University; J.D., 1986, University of California, Berkel ey (Boalt Hall). I am grateful to my family, who are
all Harry Potter fans, for their input and assistance. I also wish to thank for research assistance Lawrence
MacLachlan, Associate Director, and Nancy Morgan, Ma nager of Public Services, both of the Leon E.
Bloch Law Library.
20 Galen J. Roush Professor of Business Law and Regulation and Director, Center for Business Law &
Regulation, Case Western Reserve Univ ersity School of Law. Email: andrew.morriss@case.edu
. A.B.
1981, Princeton; J.D., M. Pub. Aff. 1984, University of Texas at Austin; Ph.D. (Economics) 1994,
Massachusetts Institute of Technology. Thanks to Olivia Odell for able research assistance, to Dean Gerald
Korngold for research support, and to Julia Morriss for setting me straight about a number of details of the
Harry Potter novels. This article draws its basic theme from Andrew P. Morriss, Why Classical Liberals
Should Love Harry Potter , 50 I
DEAS ON LIBERTY 12 (November 2000) and Calibrating Moral Choice: A
Classical Liberal Reading of the Role of Law in the Harry Potter Series (unpublished manuscript on file
with author).
21 The conference was held in Gloucester, England, where the Dick Whittington story originated some 400
years ago. For more about the Dick Whittington story, see [cross reference to articles in the symposium –
e.g. Hershoff]
22 Associate Professor of Law, Loui s D. Brandeis School of Law at the University of Louisville.

Harry Potter and the Law
4
Family Wealth and Moral Character (James Charles Smith)

The Harry Potter series opens in the first book, The Sorcerer’s Stone, with a picture of
family life in the Muggle world. Harry has lived with his relatives, the Dursleys on
Privet Drive, since he was orphaned in infanc y at the hands of Lord Voldemart. It is
summer, and Harry must endure life with the Du rsleys awhile longer before he may leave
to attend Hogwarts, the wizarding school. Each subsequent book starts at the same scene,
one year later, preceding a nother Hogwarts school year.

A large part of the humor of the series is seeing how poorly the Dursleys treat Harry.
Their mistreatment of Harry is highlighted by a contrast. The Dursleys are raising
another son, their biological s on, Dudley, who appears close to Harry in age. They lavish
attention, praise, and wealth on Dudley. Ha rry on the other hand is mostly ignored.
When the parents do notice him, they mete out criticism and punishment to a boy who is
kind hearted and basically well behaved.

In their shabby treatment of Harry, do the Du rsleys observe or violate recognized norms
of family life? Behavioral norms are of many types, and they have multiple sources.
23
One often-used classification distinguishes le gal norms from cultural and societal norms
that are extralegal.
24 Today most parents who raise multiple children follow, or attempt
to follow, an ethic of equal or equitable treatment. 25 Few parents strive for “strict
equality,” recognizing that each child is unique and different, with needs and desires not
necessarily identical to those of siblings.
26 Also, parenting strategi es evolve over time as
parents gain experience (i.e., the kids “break them in”) and their circumstances change. 27
For this reason, a first child’s handling is usually not precisel y the same as that afforded
subsequent children.
28 Nevertheless, most parents genera lly seek to apportion fairly their
attention, encouragement, a nd resources among the children. 29 From this standpoint, the
Dursleys plainly violate widely shared norms . Most parents would not treat Harry the
way they do, even if he has entered the family not as a biological child but as a nephew,
adopted through an informal mechanism. This explains Dumbledore’s justifiable outrage
in The Half-Blood Prince when he visits the Dursleys to retrieve Harry.

Harry’s mistreatment by his Muggle family does not amount to a legal wrong. Notice that
Dumbledore did not threaten the Dursleys w ith legal proceedings, either in Muggle or
Wizard tribunals. The ethic of equitable treat ment is societal and lacks a legal basis in
Anglo-American family law.
30 Family law has many facets; it is an amalgam of legal
23 16 International Encyclopedia of the Social and Behavioral Sciences, Norms 10714-10720 (2001). 24 E.g., Robert Ellickson, Of Coase and Cattle: Disput e Resolution among Neighbors in Shasta County, 38
Stan. L. Rev. 623 (1986).
25 Benjamin Spock, The Common Sense Book of Baby and Child Care (1946). 26 NO NOTE IS NECESSARY HERE. 27 See id. 28 NO NOTE IS NECESSARY HERE. 29 See Jeffrey P. Rosenfeld, Disinheritance and Will Contests, in FAMILY SYSTEMS AND
INHERITANCE PATTERNS 77 (Judith N. Cate s & Marvin B. Sussman eds., 1982).
30 Ira Mark Ellman, et al., Family Law: Cases, Text, Problems 459-475 (4 th ed. 2004).

Harry Potter and the Law
5
rules and principles. 31 My focus is the lens of property law – in particular, family
property norms – although it is plain that th e Dursleys also have not violated non-
property-based family law norms.

Harry Potter gives an illustration of how parents distribute pr operty within a family.
What Mr and Mrs Dursley do is legal, but unf air. The law does not have an equality
principle when it comes to how parents choos e to spend money on their children. Dudley
is given everything. Harry is given little pr operty -- he wears old clothes and sleeps in a
cupboard under the stairs.

The Harry Potter books give us a reason why Harry is given so little. The Dursleys
refuse to accept him because he’s not their natural child. He's a nephew, who they feel
has been thrust upon them as a consequence of his parents' poor choices, which led to
their deaths.
32 But the legal rule is the same. Th e Dursleys could choose to treat Dudley
much better than Harry, even if both boys were their biological sons. The English
doctrine of inheritance known as primogeniture
33 illustrates the point. Primogeniture
epitomized classic English favoritism to the el dest son, who inherited the parent’s real
property to the exclusion of all other siblings.
34 England did not abolish primogeniture
until 1925. 35 Since then, the social attitudes th at had sanctioned the practice have
withered, but have not evaporated completely. 36 Today parents may disinherit children,
treating them differently after death, 37 just as they may treat them differently during life.

The only limit the law places on parents' freedom to discriminate in allocating resources
unevenly is the duty of support. Here the Durs leys comply with that standard, as it's
commonly interpreted. He has clothes, food, a nd a place to sleep inside. That's all he
needs. It doesn't matte r how much Dudley gets.

Rowling employs a common literary theme in portraying Harry and Dudley. Dudley is
the favored son, but the neglected, discriminated- against child turns out to be the winner.
31 See generally id. at 3-20. 32 This fits the story into the classic literary mold of the orphan, who receives scant care and attention but
fights to overcome all the odds. See Timothy S. Hall, Harry Potter and Dick Whittington: Similarities and
Divergences, infra at __.
33 See Mark A. Senn, English Life and Law in the Time of the Black Death, 38 Real Prop. Prob. & Tr. J.
507, 558-60 (2003).
34 From our modern perspective, primogeniture strikes us as harsh and unfair. Perhaps it was, but the
practice served economic and social needs of the societ y that followed it. Primogeniture certainly does not
prove that families did not love and nurture their other children. Didn’t most English families seek to
provide suitable opportunities for all other children? For younger sons, the traditional channel was military
service and clergy. For daughters, obtaining proper marriages was the norm. FRANCES GEIS & JOSEPH
GEIS, MARRIAGE IN THE FAMILY IN THE MIDDLE AGES 142-45 (1987).
35 Administration of Estates Act, 1925, 13 Halsburg's Statutes of Eng. 38, 70 (3d ed. 1969). 36 See Karen Rowlingson & Stephen McKay, Attitudes to Inheritance in Britain (2005): Deborah A. Batts, I
Didn't Ask To Be Born: The American Law of Disinhe ritance and a Proposal for Change To a System of
Protected Inheritance 41 Hastings L.J. 1197, 1215-1216(1990).
37 Judith G. McMullen, Father (Or Mother) Knows Best: An Argument Against Including Post-Majority
Educational Expenses in Court-Ordered Child Support, 34 Ind. L. Rev. 343, 354-62 (2003).

Harry Potter and the Law
6
Harry follows in the footsteps of Dick Wittington 38 and fictitious characters such as
Oliver Twist, 39 Jane Eyre, 40 and Cinderella. 41 The years of misery inflicted upon Harry
by the Dursleys helped to forge Harry's char acter and humble nature. In contrast, the
Dursleys showered Dudley with everything. Yet one almost feels sorry for the spoiled
brat. His corpulence is a ma nifestation of excessive weal th. Family wealth does not
build character. Rather, it has the opposite effect, leadi ng to sloth and decadence.

Collapsing Liberalism’s Public/Private Di vide: Voldemort’s War on the Family.
(Danaya Wright)

Were I a sociologist,
42 I would spend a great deal of time expounding upon the different
types of families that J.K. Rowling has created in her Harry Potter series, 43 from the
uptight middle-class Dursleys, to the interracial families of Hagrid and Lord Voldemort,
to the upper-crust Black family, and to the ch aotic working-class Weasley family. But as
a legal scholar setting out to ex plore themes of law in Harry Potter, I am acutely aware of
the absence of family law conflicts
44 in these different family st ructures and relationships.
There is no divorce, there is no wrangli ng over custody of children, and there is no
apparent legal intervention in the inter-gener ational transfer of wealth. If there is
marriage, it is something that has occurred in the past and either resulted in successful
couples like the Weasleys, the Malfoys, the Du rsleys, and the Potters, or it resulted in
unsuccessful relationships that ultimately en ded long before the books began, as with the
marriages of Voldemort’s parents the Riddles (which ended by death), and Hagrid’s
parents (which ended by separation). Yet th e series begins with an event that is
quintessentially legal: the placement of th e orphaned Harry with his aunt and uncle
Dursley.

38 See Timothy S. Hall, Harry Potter and Dick Whittington: Similarities and Divergences, infra at __;
Stephen Alton, Rags to Riches Stories, __ Tex. Wesleyan L. Rev. __ (2005); Helen Hershkoff, The Dick
Whittington Story: Theories of Poor Relief, Social Ambition, and Possibilities for Class Transformation, __
Tex. Wesleyan L. Rev. __ (2005).
39 Charles Dickens, Oliver Twist (1838). 40 Charlotte Brontë, Jane Eyre (1847). 41 The fairy tale Cinderella has multiple versions, dating back at least to China in 860 A.D. Modern culture
identifies most closely with the Disney classic animated movie, Cinderella (1950). Prior to Disney, the
best known versions was French author Charles Perrault, Cendrillon (Cinderella) (1697).
42 I am not a sociologist, but my partner is, so I feel that enough of sociology’s methodology has rubbed off
that I can allege all sorts of wild conclusions about what sociologists might do. Sociology, according to a
friend, is the process of “taking the obvious and putting it into impenetrable prose.” I can only hope that
legal scholarship isn’t even more impenetrable than sociological scholarship.
43 There are currently six, out of a proposed seven, books in the series: Harry Potter and the Sorcerer’s
Stone ( 1997) (hereafter SS) , Harry Potter and the Chamber of Secrets (1998) (hereafter CS), Harry Potter
and the Prisoner of Azkeban (1999) (hereafter PA), Harry Potter and the Goblet of Fire (2000) (hereafter
GF) , Harry Potter and the Order of the Phoenix (2003) (hereafter OP), and Harry Potter and the Half-
Blood Prince (2005) (hereafter HBP).
44 Although in other sources I critique the single-mi nded focus of family law on the marriage/divorce,
property, and child custody triad, even more remote areas of family law, like health care coverage, housing,
elder care, adoption, inheritance, and the like are rarely explicitly raised in the Harry Potter books. While
the books are rife with criminal law and contract law issues, there are very few even tangential family-law
issues raised by the events of the novels. See Danaya C. Wright, “’Well Behaved Women Don’t Make
History:’ Rethinking English Family, Law, and History,” 19 Wisc. Women’s Law Journal 211 (2004).

Harry Potter and the Law
7
Rowling’s obvious fascination with different family structures and her relatively strong
sense of an isolated, private s phere that is free of state intervention seems in keeping with
traditional liberal values of the public/private divide.
45 Yet her rejection of state
interference in the private sphere of the family does not correspond to an autonomous
state that is focused on the public sphere. Wh ere liberalism separates the private world of
the family from the public world of the state, Rowling has created strong families and a
weak state which seems to be subsumed into a series of family dynasties. Thus, while
she does not have family law – i.e. state in tervention in the family – she instead has
created a family-based state. In exploring this collapsed public/private divide we begin
by considering the relation between fam ilies and family law in these books.

Book I begins with Harry’s plac ement with the Dursleys. Here we have an infant child
whose parents have been killed by Lord Vold emort left on the doorstep of his aunt and
uncle’s house, just like countless orphans in nineteenth-century English literature.
46 But
unlike nineteenth-century England, the m uggle world of Harry Potter has rigid
procedures for the placement and adoption of orphans.
47 Although the law might
presume that placement with blood relatives woul d be in the best interests of an orphaned
infant, there would be home visits, trips to the judge, and reams of paperwork before
Harry would spend his first night with the Dursleys in muggle England today.
48 But in
Rowling’s world, a single wi zard, Professor Albus Dumbledore, even without the
imprimatur of the Ministry of Magic, and before most people even knew of the Potters’
deaths, makes a unilateral decision that Harry should be taken to his aunt and uncle, that
“[t]hey’re the only family he has left now” a nd, most important, that “[i]t’s the best place
for him.”
49 That decision, moreover, is not tran smitted through a court document, nor are
any instructions for Harry’s upbringing give n to his new caregivers. As Dumbledore
explains: “I’ve written them a letter.”
50

This event sets the tone for the remainder of the books: family law, at least the family law
of the muggle world, is noticeably absent fr om the wizarding world Rowling has created.
But in the absence of family law, how do intra-familial decisions get made? For instance:

45 See traditional political and feminist theory on the rhet oric of the public and private spheres. See e.g.
Linda Kerber, “Separate Spheres, Female Worlds, Wo men’s Place: The Rhetoric of Women’s History,” 75
J. Am. Hist. 9 (1988); Wright, id. at 234-239.
46 Rowling is clearly alluding to the wealth of nineteenth-century orphan novels in the Bildungsroman
genre. Jane Eyre, Emma, The Mill on the Floss, Oliver Twist, Great Expectations, Wuthering Heights,
Tristram Shandy , and many many other nineteenth-century novels are coming-of-age stories of young
children, mostly orphans, raised by relatives, stranger s, institutions, and the streets. Rowling has created
the same kind of Dickensian world for Harry Potter as existed for David Copperfield and Oliver Twist.
47 Although England was a late entry into the adoption arena, an orphaned child like Harry would be
evaluated by experts, processed thro ugh the judicial system, and placed with his relatives only if they made
the effort to adopt him.
48 See Adoption, 5(3) Halsbury’s Laws of England (4 th ed.), 501-700 (2001) amended by Adoption of
Children Act of 2002.
49 Sorcerer’s Stone , 16. Moreover, we learn in Half Blood Prince that it is the best place for Harry because
Dumbledore has bewitched the house, not because there is some inherent protective force there, or because
blood relatives are in the best interests of children. Rather, Dumbledore has artificially made it the best
place for Harry. See HBP, 55
50 Id .

Harry Potter and the Law
8
• What law requires each wizard child to attend wizarding school at age 11?
• Children are signed up to attend Hogwarts at birth. By whom? Parents or the
Ministry or the Headmaster?
• Does Harry have gold in Gringotts because someone liquidated his parents’
estates? Who? – Muggles or the Ministry of Magic?
• Do house-elves have families other than the ones they work for?
• Did Hagrid’s parents get divorced or did they informally separate?
• Is there any official state involvement in Ne ville Longbottom’s living
arrangement with his grandmother? Why doesn’t Harry live with his
grandparents? Does he have any?
• Do adult wizards marry? What kind of ceremony (religious or civil)?
• Although a parent or guardian ’s signature is needed before a child can visit
Hogsmeade, why is no signature required to send a child to Hogwarts? Harry’s
decision to attend did not involve the approval of the Dursleys.
• Could Harry have chosen to live with hi s godfather, Sirius Black, had Sirius not
been in hiding?

These questions, and many more, suggest th at the wizarding world is fundamentally
different from the muggle world in its use of st ate intervention in family relationships and
family structure. Does a wizard child exist in the wizard world like a child in a village,
51
where village elders simply make decisions about appropriate family arrangements, such
as what happens to the Potte rs’ wealth upon their death, Harry’s placem ent with his aunt
and uncle, and whether Hagrid would stay with his muggle father or go off to France with
his giant mother? The appare nt absence of state action forces us ask even more
fundamental questions about the relationship between the family and the state: namely, to
what extent does the presence of wizardry and magic alter the family? And conversely,
to what extent does wizardry and magic affect the state?

Because of limited space in this collection of essays, I only have time to highlight certain
themes and events that help us see how Row ling has essentially flipped the public/private
divide on its head. First, I would suggest that many authors, and female authors in
particular, are uncomfortable with st ate intervention in family disputes.
52 In many of the
classic English novels of the ninetenth centur y, a genre Rowling is clearly alluding to in
51 See Hillary Rodham Clinton, It Takes A Village and Other Lessons Children Teach Us , arguing that
children today are raised better by a wide network of family and community adults.
52 In my previous research on the development of English family law I was struck by a noticeable
distinction between how female authors treat state interv ention in the family and how male authors treat it.
See Danaya C. Wright, “The Crisis of Child Custody: A History of the Birth of Family Law in England,”
11 Colum. J. of Gender and the Law 175 (2002). Fo r instance, throughout most of the nineteenth century,
female authors like Anne Brönte ( The Tenant of Wildfell Hall), Elizabeth Gaskell (Wives and Daughters ),
Margaret Oliphant ( The Marriage of Elinor ), and Mrs. Henry Wood ( East Lynne), to name just a few,
created plots involving family discord among husband and wife, all of which ended in informal, non-legal
solutions. Male authors, on the other hand, including Thomas DeQuincey ( The Household Wreck), Charles
Dickens ( Bleak House ), and Anthony Trollope ( He Knew He Was Right), often used lawyers, courts, and
legal rules to create family tension and to sometimes resolv e it. The assertion of legal rights to their child is
the focal point of Trollope’s He Knew He Was Right, even though final resolution occurred through the
death of the father.

Harry Potter and the Law
9
many of the scenes and events of her books, state intervention in family affairs is
virtually unknown. Instead, novelists
used dramatic plotting to create and solve family
tensions. Often, an offending husband died by falling through a weak tread on the stairs,
or an errant wife slowly di ed of brain fever. Death is a novelist’s easy solution to
discord, especially in a world in which cri tics decried depictions of family discord
because it was believed to encourage family r upture, and therefore social instability, in
the world of the readers.

Though Rowling is not writing in nineteenth-cen tury England, her world of wizardry and
magic evokes a very different type of social structure from the twenty-first century
Muggle world. It is very much a world in wh ich state power is weak and families tend to
their own business. For in stance, as we learn in Half-Blood Prince, Harry inherits No. 12
Grimmauld Place from his godfather because of Sirius’ self-executing will. Unlike
muggle wills, which require extensive probate and administration procedures, and which
cannot guarantee that the true “will” of the deceased will be done, in the wizarding world
a spell identifies who the true benefici ary will be. Dumbledore tells Harry while
Kreacher is loudly exclaiming that he “won’t, won’t, won’t” go to “the Potter brat,” to
“Give him an order.” “If he has passed into your ownership, he will have to obey. If not,
then we shall have to think of some ot her means of keeping him from his rightful
mistress.”
53

Fortunately, Kreacher does obey Harry’s order to “shut up,” Harry is so identified as the
true beneficiary, and thus No. 12 Grimmauld Place will not fall into the hands of
Bellatrix Lestrange, Sirius’ closest relative and murderer. But had Harry’s order not
worked, because Sirius’ will was defective, the house would have passed not by
wizarding laws of intestacy, but by “Black family tradition.” Dumbledore explains that

the house was handed down the direct line, to the next male with the name of
‘Black.’ . . . While [Sirius’] will makes it perfectly plain that he wants you to
have the house, it is nevertheless possibl e that some spell or enchantment has
been set upon the place to ensure that it cannot be owned by anyone other than a
pureblood.
54

It would seem that “dead hand control”
55 is far more alive and well in the wizarding
world than in the muggle world. 56 But more important than de ad hand control is the fact
that wizarding families exist as autonomous in stitutions that, in many respects, make their
own rules and solve their own problems w ithout oversight by a bureaucratic or
53 HBP, 52. 54 Id. at 50. 55 Dead Hand Control is a common theme in property and trusts law for exploring the appropriateness of
legal rules that permit deceased landown ers to control the disposition, use, and alienation of land long after
their deaths.
56 This is just one example of many in which Rowling has bypassed the opportunity for state intervention in
family matters in favor of the benevolent interventio n of Albus Dumbledore, or in favor of self-executing
spells that insure the orderly disposition of family matters. For example, Harry’s notice to attend
Hogwarts, Dumbledore’s defense of Harry’s use of underage magic, and the emancipation of Dobby by
tossing him a sock are all events with legal significance that do not entail formal legal intervention.

Harry Potter and the Law
10
therapeutic state. It’s not clear whether there is no divorce because the presence of magic
insures that wizards don’t make mistakes in choosing spouses, or because the presence of
magic provides a mechanism interior to the fa mily structure for fixing mistakes of this
sort. But in any event, magic has apparently made the family unit more autonomous than
is true in the muggle world.

At the same time, the strength of the wi zarding family is mirrored by a weak and
ineffectual state. As explored by other participants in this collection,
57 Rowling has
created her incompetent and somewhat corrupt Ministry of Magic as a scathing critique
of state institutions. Is it any wonder, given the weak, pompous, and easily-swayed
Minister Cornelius Fudge, the pedantic bureaucrat Percy Weasley, the dictatorial
counselor Dolores Umbridge and the empty- headed Barty Crouch that Rowling does not
involve the state in matters of family creation or family breakdown? When the state does
become involved, as it does in the operati on of Hogwarts in Book 5, we see not only
distrust, but downright corrupt ion as Dolores Umbridge invok es a new ministry directive
every time she feels thwarted by the power of the headmaster or the lack of cooperation
by the students. The ministry dominates the press and attempts to dominate the
educational system in order to control publ ic opinion and academic freedom. Throughout
all six books, Rowling has created a state that cannot be trusted with the simplest of
matters, much less with the all-important decisions like the custody of the orphaned
Harry.

In Half Blood Prince , however, Rowling evinces a dramatic shift from her incompetent
state in the first five books, to a state that is exquisitely unsuited to fighting the new war
being waged by Lord Voldemort. It is perh aps most telling that Rowling begins Book 6
with a meeting of the Muggle Prime Minister an d the new Minister of Magic, rather than
with the usual depiction of Harry’s tedious, miserable life on Privet Drive. The shift
from the private realm of the Dursley family to the public realm of the state signals a
change in emphasis from the relatively isolat ed and autonomous spheres of family and
state to a brave new world in which the private and public worlds merge over a new type
of war: a private war against families. Lord Voldemort is not training an army to fight on
a battlefield for a nationalistic ca use. Instead, he is striking strategically at the heart of
individual families in a targeted war agains t the tenuous power of a weak state made up
of independent wizarding families held toge ther only by their common characteristic –
magic. The public/private divide that we are accustomed to in the modern Anglo-
American world is clearly not Harry’s worl d in which Voldemort’s murderous powers are
aimed at the individual families of numer ous Hogwarts students and Rufus Scrimgour
himself asks Harry to become a spokesperson for the Ministry only because his family
has made the ultimate familial sacrifice. In the wizard world, power resides in the
individual family units and not in the state.

But while it might be easy to understand Rowling’s personal objections to state
interference in the family from her history as a “welfare mother,” her incompetent state
becomes downright destructive of the so cial order by Book 6 when it cannot keep
wizarding families safe. Consider the ridiculous instructions the Ministry distributes to
57 See Ben Barton’s piece in this Symposium

Harry Potter and the Law
11
families to develop codes to identify the person they are letting into their home as truly a
family member. The absurdity of asking each other pre-established secrets rather
reminds one of the U.S. government’s admonition to buy plastic sheeting and duct tape in
preparation for another terrorist attack.
58 As the evil effects of Voldemort’s power strikes
not at the Ministry but at individual families, the state’s inability to battle the diffuse and
personalized attacks of Voldemort’s war highl ights the incongruity of the public/private
divide in the wizarding world.

Rowling has rejected family law, i.e. the in terference of the state in the private sphere,
partly because the state is corrupt and incompet ent, but also because such interference is
dangerous. When the Ministry is actually pr otecting Lord Voldemort, and Lucius Malfoy
has the Minister’s ear, the r eader realizes that the only wa y to protect one’s family and
loved ones is through private action and persona l courage. Despite the many references
to Voldemort’s prior rise to power as essentially fomen ting a war between good wizards
and Voldemort’s death eaters, we quickly re alize that this war is not like military
operations between feuding nations. Rather, it is a series of personalized, private attacks
in which success comes from essentially private actions: Lily’s sacrificing her life for
Harry’s, Barty Crouch Jr’s mother giving up her life for her son, and Draco’s mother
extracting an unbreakable vow from Snape to pr otect her son. People are killed not as
soldiers in a traditional war, but as vendetta s against muggle fathers, inter-family feuds
(Bellatrix Lestrange and Sirius), and warped notions of the master-servant relations by
the sycophantic Nagini and Wormtail. Power li es not in the traditional liberal state, but
in the autonomous building blocks of social order – the family.

Rowling has flipped the traditional feminist mantra, “the personal is the political,”
59 in
which personal decisions and personal relati ons are seen as fundamental expressions of
public ordering, to “the politic al is the personal.” In Rowling’s world, the war the
Ministry is fighting is an upside down attack on private families. Thus, just as she has
rejected the fallible state in favor of a natu ralized ordering in the wizarding world that,
through spells and community acceptance, ma kes the private world of the family a
thoroughly separate realm from the public worl d of the state, she has made the public
state a tool in the war of private, inter-familial power struggles.

Rowling’s rejection of state intervention in family disputes clearly comes from a
profound distrust of the state’s motives as well as a rejection of state authority to
intervene in the personal r ealm of family decisionmaking. Certain things occur in
Rowling’s world almost by nature , as though it’s just a matter of cosmic law that wizard
children would be signed up for Hogwarts at birth. Others are structured by consensus
among the relevant parties, as the spells over the Black family home that would keep it in
the bloodline. And other matters, like Harry’s placement with the Dursleys, is a matter of
almost-divine intervention by a benevolent bys tander. The state not only can do no right,
58 Mary Delach Leonard, “Yellow Alert: Are You Prepared for a Terrorist Attack? Do You Know where
your Flashlight is?” Everyday Magazine, St. Louis Post-Dispatch (February 15, 2004).
59 The “personal is the political” is a common feminist slogan, explored in depth by Catherine MacKinnon
in “Privacy v. Equality: Beyond Roe v. Wade,” in Feminism Unmodified 93, 100 (1987) (noting that “[t]he
private is the public for those for whom the personal is the political.”)

Harry Potter and the Law
12
and therefore must be kept away from the important realm of family autonomy, but it
actually does harm within the private realm of the family by having become a tool for the
personal war Voldemort has waged. Traditional liberalism sees the family as the building
block of social order. In the wizarding wo rld the family unit is the locus of power and
consequently the target of Voldemort’s attacks. To a great extent, the state has become a
pawn in Voldemort’s war to destroy the fa mily. Voldemort’s war logically focuses on
attacking individual families because his fear of weakness and dependence makes him
challenge the strongest magical power, the po wer he constantly overestimates, which is
the love of family.
60

Harry Potter and the Half-Crazed Bu reaucracy (Benjamin H. Barton)

As perhaps the best selling and most in fluential children’s novels of all time,
61 it is well
worth considering what Rowli ng’s vision of the wizarding wo rld tells us about our own
culture? In this essay I brie fly discuss some of what Rowling tells us about government
in the Harry Potter novels through her de piction of the Ministry of Magic.
62 In a nutshell,
Rowling has very little use for central govern ment, and through satire and later, darker
commentaries, draws a portra it of government as a non-democratic, inefficient, and
frequently flatly dishonest, bureaucracy.

There are several notable features of Rowling’ s portrait of the Ministry of Magic. The
first is what the Ministry is not. The Ministry is not democr atic. At no point in any of
the six Harry Potter books is an election mentioned. To the contrary, in Book Six
Cornelius Fudge is replaced as Minister of Magic with a reference to his being “sacked,”
all with no reference to an election.
63 In conjunction to suggestions that Dumbledore had
been recruited to be minister of magic at one point, 64 and had later been fired from the
Wizengamot, 65 Rowling has repeatedly skipped ov er opportunities to have elections.

The Ministry is not a classic execu tive, legislative, or judicial body.
66 There does appear
to be a law-making function, but the descri ptions of that process sound more like
administrative rule-making than any kind of de liberative or democratic legislative action.
Similarly, there is a “Minister of Magic” th at heads up the various departments of the
ministry, but the minister resembles an agen cy head more than a President or Prime
Minister.

60 There are many similarities in the orphan status of Voldemort and Harry, but Harry has found substitute
family in Sirius, the Weasleys, and Professor Dumbledore, where Voldemort found none. I predict that the
fatherly love Dumbledore bestowed on Harry will give him the magical power to defeat Voldemort.
61 See supra notes 1-6. For a discussion on the influence of these novels, see cross reference to other
essays .
62 This essay assumes a baseline of Harry Potter knowledge. The uninitiated may wish to consult The
Leaky Cauldron, at http://www.the-leaky-cauldron.org/.
63 See J.K. ROWLING , HARRY POTTER AND THE HALF -B LOOD PRINCE 15-18 (2005). 64 See J.K. ROWLING , HARRY POTTER AND THE SORCERER ’S STONE 64-65 (1997). 65 See J.K. ROWLING , HARRY POTTER AND THE ORDER OF THE PHOENIX 95 (2003). 66 The Wizengamot, where Harry is tried in book five, appears to be the main adjudicatory body in the
wizarding world.

Harry Potter and the Law
13
These statements of what the Ministry is not help us to hone in on what Rowling’s
Ministry of Magic most closely resemb les: a modern, western bureaucracy. The
interesting thing about Rowling’s depicti on is that she conflates government and
bureaucracy to the point that in the wizardi ng world there is no government outside of
bureaucracy. Given the genera l unpopularity of bureaucrats and bureaucracy, this choice
alone is quite striking.

When we consider Rowling’s portrait of th e bureaucrats themselves, however, we see a
truly dark vision of central government. The most obvious example is Cornelius Fudge, a
classic “self-interested” bureau crat if there ever was one.
67 When we first meet Fudge he
is a caricature of a politician/ bureaucrat. He grants Harry special treatment in both Books
3 and 4 based on his fame, but overall seems to be a genial “bungler.”
68 A dark side to
Fudge’s favoritism is also suggested: the acc ess and power of the Malfoy family. The
end of Book Four, and then Book Five, show a substantially different picture. Fudge
transforms from a mocking portrait into an out-of-control dictator: he marginalizes
Dumbledore and does everything in his power to destroy and discredit Harry. Much of
these actions are out of a paranoid fear that Dumbledore and Harry want to depose him.
It is clear that all that matters to Fu dge is his own power. He sees every new
development in light of that goal.

Similarly, Delores Umbridge is another powe r-hungry bureaucrat. Umbridge’s rule over
Hogwarts is both hilarious a nd disturbing. She changes the rules with impunity, and is
willing to do anything to increase her presti ge within the ministry and her control over
Hogwarts. The most glaring examples are her torturing of Harry for lying, and the
decision to set dementors loose in Little Whinging.

Probably the saddest bureaucrat is Percy Weas ley. He starts the books as a flawed, but
likable social climber and rule-lover, but as a Weasley we have a natural affinity and
sympathy for him. By Books five and si x, however, he has abandoned his friends and
family in the blind pursuit of prestige and pow er. Since he is a character we originally
root for, the transition is a pa rticularly stark vision of what government does to those who
join too wholeheartedly.

Lastly, consider the “good” bureaucrat, Arthur Weasley. He cares about his work and is
honest. We are told that he is very low in the pecking order, that he is poorly paid, and
that his office is all the way down a dead end hall. The symbolism is clear: there is no
quicker route to a dead end in governme nt than being honest and decent.

Not only does Rowling criticize bureaucracy and government, she strips away many of
the modern defenses of the bureaucratic st ate. First and foremost defenders of
67 The study of the self-interested bureaucrat began, in earnest, with W ILLIAM A. NISKANEN ,
BUREAUCRACY : SERVANT OR MASTER ? 22 (1973); see also W ILLIAM A. NISKANEN , JR., BUREAUCRACY
AND
REPRESENTATIVE GOVERNMENT 36-42 (1971). For a short version of the public choice work on self-
interested bureaucr ats since Niskanen, see Benjamin H. Barton, an Institutional analysis of Lawyer
Regulation: Who Should Control Lawyer Regulation – Courts, Legislatures or the Market? , 37 G
A. L. REV .
1167, 1183-84 (2003).
68 See S ORCERER ’S STONE , supra note __, at 65.

Harry Potter and the Law
14
bureaucracy tend to rely upon democratic institutions and elected officials to check any
self-interested behavi or within government. 69 Rowling defeats this notion by eliminating
any elections.

Another defense disagrees that bureaucrats tend to be self-interested, and argues that
bureaucrats tend to naturally care about the areas they govern.
70 Rowling’s portrait of
bureaucrats themselves, however, bars this defense.

Lastly, the wizarding world lack s even the potential check of a free press. In Book Five
Rowling makes clear that the Daily Prophet is at least heavily influenced (if not flatly
controlled) by the Ministry of Magic. Th e Daily Prophet is a willing participant in
trashing the reputations of Harry and Du mbledore and suppressing the idea that
Voldemort had returned. The lack of a free press is quite important: there is no way for
the public to even really di scover governmental abuses.

In short, Rowling presents a uniquely dark vi sion of central government. Since I assume
that the wizarding world is a method of commenting upon our current government and
society I find this portrait somewhat distur bing. There is obviously a great deal of
modern skepticism about government, but Rowl ing presents a relatively extreme version
of the libertarian critique of government.

As for the ramifications, it is always hard to tell. That being said, do not be surprised to
find a substantial uptick of distrust of govern ment and libertarianism as the Harry Potter
generation grows into adulthood.

Unforgivable Curses and the Rule of Law (Aaron Schwabach)

Harry’s story is a story about law, and about a society trying to establish a rule of law.
The Ministry of Magic’s muddli ng misrule is not quite dictatorship, but it is not fair and
just, either. Under the stress of the first war against Voldemort’s Death Eaters the
Ministry regime, like some Muggle governments in similar circumstances, adopted an ad
hoc and inconsistent approach to justice.
71 In the years of peace since Voldemort’s first
downfall, it failed to build working legal structures. Now the Death Eaters are placing the
Ministry under stress again, and even the good guys seem to follow personalities rather
than rules.

One inconsistency in the Ministry’s legal re gime is the treatment of the Unforgivable
Curses. The use of any of these curses on a human being is punishable by life
69 See, e.g., Daryl J. Levinson, Empire-Building in Constitutional Law , 118 H ARV . L. REV . 915, 933-34
(2005) (noting political oversight as a check on self-interested bureaucracies).
70 See, e.g., A NTHONY DOWNS , INSIDE BUREAUCRACY 50-84 (1989). 71 See, e.g., Paul R Joseph & Lynn E. Wolf, The Law in Harry Potter: A System Not Even a Muggle Could
Love, 34 U.
TOLEDO L. REV . 193 (2003); William P. MacNeil, “ Kidlit” as “Law-and-Lit”: Harry Potter
and the Scales of Justice, 14 L.
& LIT. 545 (2002); Susan Hall, “Harry Potter and the Rule of Law: The
Central Weakness of Legal Concepts in the Wizard World,” in R
EADING HARRY POTTER : CRITICAL ESSAYS
147, (Westport, CT: Giselle Li za Anatol ed., Praeger 2003).

Harry Potter and the Law
15
imprisonment in Azkaban. 72 The three Unforgivable Curses are the Imperius Curse,
which allows the user to control the actions of the victim; the Cruciatus Curse, which
causes unbearable pain; and the Killing Curse, which causes instant death. Yet these
spells are not necessarily worse, from a mora l perspective, than Memory Charms or the
Dementor’s Kiss.

The Imperius Curse

Barty Crouch Jr., a Death Eater impersona ting Hogwarts professor Mad-Eye Moody,
demonstrates the Unforgivable Curses to Ha rry’s fourth-year Defense Against the Dark
Arts class. At first he uses spiders, not humans, as subjec ts for all three curses, thus
complying with the prohibition against the us e of the curses on humans – but later he
demonstrates the Imperius Curse on the students . Apparently either a Hogwarts professor
or Dumbledore as Hogwarts headmaster has th e authority to authorize this use of the
curse for educational purposes, or else Du mbledore has chosen to disregard wizarding
law.
“Dumbledore wants you taught what it feels like,” Crouch says. 73 Crouch might be
lying, but he is teaching at Hogwarts under false pretenses as part of an absurdly
elaborate plan to restore Lord Voldemort, a nd being caught in a lie would expose him; to
lie unnecessarily would be a f oolish risk. It seems more likely that Dumbledore has
actually agreed to Moody’s demonstration of the Curse.
74

Unlike the Cruciatus and Killing Curses, the Imperius Curse can be overcome by its
victim. The Curse is not completely effectiv e on Harry the first time Crouch uses it, and
by the end of a single class session Harry is able to resist it completely.
75 Later, he
successfully resists the Curse when it is used against him by Voldemort.76 Crouch has
escaped his own father’s Imperius Curse, and Barty Crouch Sr. in turn manages to escape
Voldemort’s Imperius Curse.
77 But Broderick Bode, a Ministry employee, struggles
unsuccessfully, against an Imperius Curse placed on him by Lucius Malfoy. 78 There is a
disturbing subtextual message here: Some wizards’ wills are stronger than others.

72 J.K. ROWLING , HARRY POTTER AND THE GOBLET OF FIRE 217 (New York: Scholas tic 2000)[hereinafter
G
OBLET OF FIRE ]. The presumably coined name “Azkaban,” with its vaguely Turkic or Arabic sound, raises
disturbing echoes of Orientalism in other works of British children’s literature, most notably the codedly
Islamic Calormenians in C.S. Lewis’s Narnia stories. On Orientalism generally, see Edward Saïd,
Orientalism (New York: Vi ntage Books, 1979).
73 GOBLET OF FIRE 230; see also Lana A. Whited & M. Katherine Grimes, “What Would Harry Do? J.K.
Rowling and Lawrence Kohlberg’s Theories of Moral Development,” in T
HE IVORY TOWER AND HARRY
POTTER : PERSPECTIVES ON A LITERARY PHENOMENON 182, 194 (Lana A. Whited ed., U. of Missouri Press
2002)(paragraph ending with “Hermione is destined to be Head Girl.”)
74 The Ministry, however, was apparently not informed of this in advance and would not have approved:
The ministry stooge Dolores Umbridge, who takes over the class in Harry’s fifth year, says “It is my
understanding that my predecessor not only performed illegal curses in front of you, he actually performed
them on you[.]”
J.K. ROWLING , HARRY POTTER AND THE ORDER OF THE PHOENIX 243 (New York:
Scholastic 2003)[hereinafter O
RDER OF THE PHOENIX ](emphasis in original). 75 GOBLET OF FIRE 232, 661. 76 GOBLET OF FIRE 661. 77 GOBLET OF FIRE 688. 78 ORDER OF THE PHOENIX 585.

Harry Potter and the Law
16
The moral logic behind the Unforgivability of the Imperius Curse is straightforward: the
Imperius Curse is a crime against free will. What is surprising is not that the Imperius
Curse is Unforgivable, but that the Ministry so openly tolerates other crimes against free
will, particularly the en slavement of house elves,
79 although enslavement is universally
recognized as a crime 80 and has been illegal in England for centuries. 81

Dumbledore places free will at the apex of hi s value system: “It is our choices, Harry,
that show what we truly are[.]”
82 A number of philosophical reactions to this statement
are possible: The characters, most of wh om are children, are often moved by forces
beyond their control or know ledge; and many philosophers, from fundamentalists to
postmodernists, question the very existence of free will.
83 But for lawyers what is more
worrying is that Dumbledore, like the Minist ry he sometimes opposes, also discriminates
against house-elves: “Kreacher is what he has been made by wizards, Harry,” said
Dumbledore. “Yes, he is to be pitied. His existence has been as miserable as your friend
Dobby’s.”
84

This soft racism undermines Dumbledor e’s earlier assertion. Dobby, despite his
suffering, has not chosen to harm anyone, wh ile Kreacher has, despite other options,
chosen to ally himself with Death Eaters, to injure Buckbeak, and to betray Sirius to his
death. To place all of the blame for Kreach er’s crimes on wizarding society seems to
deny the validity of Kreacher’s choices. Ju st as the Ministry’s message is “Everyone
should have the freedom to choose their ac tions – except house-elves,” Dumbledore’s is
“Everyone is responsible for the consequences of their exercise of free will – except
house-elves.”
85

The Cruciatus Curse

Crouch next demonstrates the Cruciatus Curse, which causes pain.
86 He knows the
illegality of this spell particularly well – he was sentenced to Azkaban for life, in a “trial”
79 Much has been written elsewhere about the house-elve s, whose plight and narrative treatment present one
of the most disturbing aspects of the wizarding world. See, e.g., Farah Mendlesohn, “Crowning the King:
Harry Potter and the Construction of Authority," in T
HE IVORY TOWER AND HARRY POTTER : PERSPECTIVES
ON A
LITERARY PHENOMENON 159, 181 (Columbia, MO: University of Missouri Press, Lana A. Whited ed.
2004).
80 See, e.g., International Covenant on Civil and Political Right s, art. 8, G.A. Res. 2200A (XXI), Dec. 16,
1966, in force Mar. 23, 1976.
81 See Sommerset v. Stuart, 12 George III A.D. (1771-1772) Lofft, 20 How. St. Tr. 1. 82 CHAMBER OF SECRETS 333. 83 See, e.g., G IANNI VATTIMO , THE END OF MODERNITY : NIHILISM AND HERMENEUTICS IN POSTMODERN
CULTURE (Baltimore: Johns Hopkins University Press, 1991) 84 ORDER OF THE PHOENIX 832 (Albus Dumbledore). 85 Yet the fact that house-elves do have free will and choose the consequences of their actions is shown
when both Dobby and Kreacher, for very different reas ons, choose to act against their masters’ wishes and
interests.
86 GOBLET OF FIRE 214-15. One incident involving the Cruciatus Curse demonstrates the degree to which
the Ministry apparently feels exempt from its own rule s: In Harry’s fifth year Dolores Umbridge threatens
to use the Cruciatus Curse on Harry before a dozen witnesses – one of whom is the ambitious Draco
Malfoy, who could be expected to use knowledge of Umbridge’s commission of such a serious crime to his
advantage. O
RDER OF THE PHOENIX 746.

Harry Potter and the Law
17
at which, despite the glaring conflict of interest, his own father acted as a sort of
combination of prosecutor and sentencing j udge, for using the Cruciatus Curse on Frank
and Alice Longbottom (the parents of Harry’s friend Neville).
87

The Cruciatus Curse presents an easy case for Unforgivability. Like sla
very, torture is
universally recognized as a crime,
88 and there is no legitimate use for a curse that does
nothing other than cause pain and, in so me cases, insanity: The Longbottoms are
permanently incapacitated. In the following y ear Harry and his friends meet them, in one
of the series’ most emotionally affecting s cenes, while visiting their former professor
Gilderoy Lockhart in the Closed Ward at St. Mungo’s Hospital for Magical Maladies &
Injuries. The Longbottoms are barely able to communicate with, let alone relate to, their
son Neville or his grandmother, Frank’s mother . Neville’s mother attempts to reach him
by giving him candy bar wrappers.
89

Rather than legal questions, the Cruciatus Curse provides questions about Harry himself.
Harry wishes that “he knew how to do the Cr uciatus Curse… he’d have Snape flat on his
back like that spider, jerking and twitching…”
90 Later, after Bellatrix Lestrange kills
Sirius Black, Harry actually does use the Curse on her. 91 No one except Bellatrix
witnesses Harry’s use of the Curse, so he is spared a life sentence in Azkaban –
but his
choice of that particular curse rather than one that would have rendered her unconscious
(or even killed her) raises a serious question here, especially for younger readers: If Harry
used the Curse, knowing that it was both wrong and illegal, is Harry still good? And if
he’s flawed – if he has a touch of evil in his personality – is it still okay to root for him?

The Killing Curse

The third of the Unforgivable Curses, and th e least convincing in its Unforgivability, is
the Killing Curse ( Avada Kedavra). The illegality of murder is even more universally
recognized than the illegality of torture and en slavement. But not all killings are murder,
and the wizarding world apparently acknowle dges the legality of some killings; the
Ministry’s regime even seems to have a d eath penalty. The Ministry’s Aurors kill on
occasion: The real Mad-Eye Moody makes a wry comment to Dumbledore regarding
Moody’s part in killing a Death Eater named Rosier,
92 and other Aurors apparently rack
up an even higher body count than the grim Moody: Sirius Black (sent to Azkaban,
87 GOBLET OF FIRE 594-96. 88 The United Kingdom is a party to numerous treaties forbidding torture, including the European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment, Nov. 26, 1987, Europ.
T.S. No. 126; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; Inte rnational Covenant on Civil and Political Rights, supra
note 80; see also Universal Declaration of Human Rights, art. 5, G.A. Res. 217 A (III), Dec. 10, 1948.
89 ORDER OF THE PHOENIX 512-515. 90 GOBLET OF FIRE 300 (ellipses in original). We see other ev idence of Harry’s capacity for cruelty: “All he
wanted to do was cause Malfoy as much pain as possible.” O
RDER OF THE PHOENIX 413. And Harry
attempts, unsuccessfully, to use the curse on Snape after Snape kills Dumbledore. J.K.
ROWLING , HARRY
POTTER AND THE HALF -B LOOD PRINCE 602 (New York: Scholastic 2005)[hereinafter H ALF -B LOOD
PRINCE ]. 91 ORDER OF THE PHOENIX 810. 92 GOBLET OF FIRE 589.

Harry Potter and the Law
18
without a trial, by Barty Crouch Sr. 93) tells Harry that Moody, in apparent contrast to
some other Aurors, “never killed if he could help it.” 94 In passing Sirius also mentions
another Death Eater, Wilkes, being killed by Aurors.95 Ron tells Harry that “loads [of
giants] got themselves killed by Aurors.” 96

Sirius, Moody and Ron, however, do not explain how the Aurors killed these giants and
Death Eaters. Perhaps they are licensed by the Ministry to use the Killing Curse,
although if they were permitted to do so, surely the Aurors Kingsley Shacklebolt and
Nymphadora Tonks would use the curse in their battle with a large group of Death Eaters
near the end of the fifth volume.
97

On the other hand, there are many other ways to kill people, with and without magic. The
Death Eater Peter Pettigrew manages to kill a dozen Muggles with a single curse, by
causing an explosion.
98 A wizard named Benjy Fenwick is found in pieces; 99 whatever
killed him, it wasn’t the Killing Curse, which leaves its victims “unmarked, but
unmistakably dead.”
100 Giants kill each other by purely physical violence; 101 centaurs use
apparently non-magical bows and arrows. 102 In Harry’s first year at Hogwarts Professor
Quirrell tries to kill him by casting a spe ll on his broom, hoping that Harry will fall off. 103
Hermione, as a first-year student, is able to set Snape’s clothes on fire, another potentially
lethal spell.
104 In his third year Harry threatens to k ill Sirius Black, a threat that everyone,
including Black, seems to find credible, 105 while in his sixth year he nearly kills Draco
Malfoy with a dangerous but not Un forgivable curse, Sectumsempra. 106 Devil’s Snare, a
magical plant that strangles its victims, can be used for murder: It endangers Harry, Ron
and Hermione in their first year,
107 and, disguised as a gift, is successfully used to murder
Broderick Bode in the Closed Ward at St. Mungo’s. 108 Magical creatures, like Salazar
Slytherin’s basilisk, can be used to kill. 109 A snake possessed by Voldemort bites and
93 GOBLET OF FIRE 526. 94 GOBLET OF FIRE 532. 95 GOBLET OF FIRE 531. 96 GOBLET OF FIRE 430. 97 ORDER OF THE PHOENIX 801-03. 98 J.K. ROWLING , HARRY POTTER AND THE PRISONER OF AZKABAN 208, 363 (New York: Scholastic
1999)[hereinafter P
RISONER OF AZKABAN ]. 99 ORDER OF THE PHOENIX 174. 100 GOBLET OF FIRE 216. 101 See, e.g., O RDER OF THE PHOENIX 430. 102 ORDER OF THE PHOENIX 759. 103 HARRY POTTER AND THE SORCERER ’S STONE 189-91, 288-89 (New York: Scholastic 1997)[hereinafter
S
ORCERER ’S STONE ]. 104 SORCERER ’S STONE 191. 105 PRISONER OF AZKABAN 341-43. 106 HALF -B LOOD PRINCE 522-23. Draco’s life is saved by the timely intervention of Snape. 107 SORCERER ’S STONE 277. 108 ORDER OF THE PHOENIX 546. 109 J.K. ROWLING , HARRY POTTER AND THE CHAMBER OF SECRETS , e.g. 317-20 (New York: Scholastic
1998)[hereinafter C
HAMBER OF SECRETS ].

Harry Potter and the Law
19
nearly kills Arthur Weasley. 110 Sirius Black is apparently killed when a spell knocks him
through the veil of death in th e Department of Mysteries. 111

The killing of another human being is Fo rgivable in some instances, apparently,
112 but
not when the method used is the Killing Cu rse. There is some sense to this, when
extremely dangerous instrumentalities ar e involved. At common law and in many
jurisdictions today, murder committed in certa in ways, such as by the use of bombs or
poison, is treated as first-degree murder regardless of intent. In California, for example,
murder committed by explosive device is first-degree murder
113 and carries a mandatory
sentence of either death or life without parole. 114 The Killing Curse may be banned for
the same reason bombs are banned: Not because it can kill, but because, for those able to
use it, it makes killing too easy. However, ther e is considerable evidence that the Killing
Curse is difficult to use: Barty Cr ouch Jr. tells Harry’s class that “Avada Kedavra’ s a
curse that needs a powerful bit of magic be hind it – you could all get your wands out now
and say the words, and I doubt I’d get so much as a nosebleed.
115

Although there is a not inconsiderable amount of killing and attempted killing in the
novels,
116 the Killing Curse, in fact, is used rela tively rarely. Voldemort uses it to kill
Harry’s parents in a s cene often revisited thr oughout the series; he also uses it to kill
Frank Bryce, a Muggle,
117 and Bertha Jorkins, a witch, 118 and attempts to use it to kill
Harry. 119 Barty Crouch Jr., posing as Mad-Eye Moody, uses it on a spider. 120 Wormtail
110 ORDER OF THE PHOENIX 463. 111 ORDER OF THE PHOENIX 805-06. 112 See generally, e.g., Hall, supra note 71. Certain affirmative defens es may be accepted, however: Lupin
tells Harry that “The law’s on your side… Even underage wizards are allowed to use magic in life-
threatening situations.” O
RDER OF THE PHOENIX 123 (Remus Lupin). And Barty Crouch Jr. implies that
acting under the control of another (such as via the Imperius Curse) is a defense. G
OBLET OF FIRE 213.
This defense is apparently unavailable to house-elves. Hall, supra note 71 at 155-56, points out that Amos
Diggory’s interrogation of Winky the house-elf (G
OBLET OF FIRE 133-38) misses the crucial question: Was
Winky acting of her own free will, or under orders (whi ch, as a house-elf, she would have been unable to
disobey)?
113 Cal. Penal Code § 189. 114 Cal. Penal Code §190.2(4). 115 GOBLET OF FIRE 217. Crouch might be wrong; two of his students might succeed. Harry shows a
natural aptitude for the Dark Arts, and Herm ione is an exceptionally skillful witch.
116 In addition to the examples above, see also Jann Lacoss, “Of Magicals and Muggles: Reversions and
Revulsions at Hogwarts,” in T
HE IVORY TOWER AND HARRY POTTER : PERSPECTIVES ON A LITERARY
PHENOMENON 67, 80 (Columbia, MO: University of Missouri Press, Lana A Whited ed. 2004); Anne
Hiebert Alton, “Generic Fusion and the Mosaic of Harry Potter,” in H
ARRY POTTER ’S WORLD :
MULTIDISCIPLINARY CRITICAL PERSPECTIVES 141, 143 (New York: RoutledgeFalmer, Elizabeth E.
Heilman ed. 2003).
117 GOBLET OF FIRE 15, 666. 118 GOBLET OF FIRE 655, 666. (Jorkins could have been killed by Wormtail using Voldemort’s wand, as
Cedric was.)
119 In addition to his oft-discussed failure to kill Harry as a baby, Voldemort uses the Killing Curse against
Harry in Harry’s fourth and fifth years. G
OBLET OF FIRE 663; O RDER OF THE PHOENIX 813. In the first
instance Harry is saved by his own quick reaction and the fact that his wand is linked to Voldemort’s; in the
second he is saved by Dumbledore.
120 GOBLET OF FIRE 215-16.

Harry Potter and the Law
20
uses Voldemort’s wand and the Killing Curse to kill Cedric Diggory. 121 And Snape kills
Dumbledore with the Killing Curse. 122

The Killing Curse is most often used by Voldemort; Pettigrew performs it with
Voldemort’s wand, even though he presumably has another wand – the one taken from
Bertha Jorkins. In the battle at the Depart ment of Mysteries, the Death Eaters use many
spells against Harry’s gang, but none uses Avada Kedavra except, at the end,
Voldemort.
123 It may be that the Killing Curse is to o difficult, or takes too much out of its
user, to make it useful in combat by any but the most skilled wizards – in which case
outlawing it seems less necessary, but makes moral sense in that it protects the weaker
wizards from the stronger.

The Dementor’s Kiss and Other Executions

While the illegality of the Imperius and Cruciatus Curses makes both legal and moral
sense, and the illegality of the Killing Curse might at first seem to be justified by its
extreme dangerousness, the Ministry’s use of the Dementor’s Kiss and Memory Charms
undermines whatever logic there is to the Unforgivable Curses regime.

The Dementor’s Kiss sucks the soul from the victim’s body, leaving an empty shell
without memory or personality.
124 The Kiss is not a spell; it can only be performed by
dementors, not by wizards. However, dement ors perform the Kiss at the direction of
wizards: Cornelius Fudge sends dementor s to perform the Kiss on Sirius Black
125 and a
dementor accompanying Fudge performs th e Kiss on Barty Crouch Jr., with Fudge’s
apparent consent.
126 Dolores Umbridge sends dementor s to Little Whinging to perform
the Kiss on Harry.127

The Dementor’s Kiss is a de facto death pena lty, yet the Ministry inflicts it on wizards
without due process, for reas ons of political expedience.
128 The situation of house-elves
is, not surprisingly, even worse. Not only do they have no right to due process; their
121 GOBLET OF FIRE 638. 122 HALF -B LOOD PRINCE 596. 123 ORDER OF THE PHOENIX 787-813. 124 The effects are unmistakable: “‘Of course they didn’t get his soul, you’d know if they had,’ said Harry
[to Aunt Petunia], exasperated.” O
RDER OF THE PHOENIX 34. 125 PRISONER OF AZKABAN 416. 126 GOBLET OF FIRE 702-03. 127 They nearly suck out Dudley’s soul, as well, but Harry manages to save himself and his cousin with the
Patronus Charm. O
RDER OF THE PHOENIX 17-19. For this use of magic Harry undergoes what appears to be
a criminal trial before the Wizengamot. Id. at 137-51.
128 Harry has no faith in the Ministry’s commitment to due process: “I bet you anything Fudge would’ve
told Macnair to murder Sirius on the spot…” P
RISONER OF AZKABAN 404 (ellipses in original). When
Sirius is later captured, Fudge does, in fact, have Macnair bring dementors to suck out Sirius’ soul. As with
the Barty Crouch Jr. affair, Fudge’s concern seems to be for appearances rather than justice: “This whole
Black affair has been highly embarrassing. I can’t tell you how much I’m looking forward to informing the
Daily Prophet that we’ve got him at last.” Id. at 416-17 (Fudge to Snape). Later, when the Death Eater
Barty Crouch Jr. is captured, Fudge himself brings a dementor into Hogwarts to suck out Crouch’s soul,
thus preventing Crouch from giving testimony that might have been politically embarrassing to Fudge.
G
OBLET OF FIRE 703-04.

Harry Potter and the Law
21
execution apparently does not even require the authorization of the Ministry. Their
enslavement gives their masters the power of life and death over them: Sirius tells Harry
about his “dear Aunt Elladora [who] started the family tradition of beheading house-elves
when they got too old to carry tea-trays[.]”
129

Memory Charms

Similarly, the use of memory charms undermines the logic of the Unforgivable Curses.
It’s surprising, even dist urbing, that the innocuous-soundi ng Memory Charm, which can
erase or modify memories, is not Unforgiv able. The Ministry of Magic routinely
dispatches Obliviators to modify the memo ries of Muggles who’ve witnessed magical
events. This rather cavalier attitude to ward Muggles is presented without evident
disapproval, as part of th e ordinary work of the Mi nistry. The pompous Gilderoy
Lockhart’s use of Memory Charms against other wizards and witches, however, is
presented as skullduggery, and he gets his comeuppance when his own Memory Charm
backfires and wipes out his memories.

Memory Charms are dangerous. Mr. Roberts, the Muggle owner of the land on which the
Quidditch World Cup takes place, cannot help noticing that his clients are wizards; his
memory is modified repeatedly.
130 Later, Roberts and his fa mily are captured by Death
Eaters and tossed high in the air for some ti me. The next day, as Harry, Hermione and
the Weasleys are leaving, Roberts has “a st range, dazed look about him, and he wave[s]
them off with a vague ‘Merry Christmas.’”
131 Arthur Weasley assures the children that
Roberts will recover, but we don’t find out wh ether he is correct because we never see
Roberts again. But when Bertha Jorkins disc overs that Barty Crouch Sr. is concealing his
son, the Death Eater Barty Crouch Jr., in his home, Crouch Sr. uses such a powerful
Memory Charm that Jorkins’ memory is permanently damaged.
132

Despite the dangers, the use of Memory Charms against Muggles is not limited to the
Ministry’s Obliviators. “When the worst happe ns and a Muggle sees [a magical beast],
the Memory Charm is perhaps the most useful repair tool. The Memory Charm may be
performed by the owner of the beast in question….”
133

The good guys use Memory Charms, too. Kingsley Shacklebolt, an Auror and member
of Dumbledore’s secret Order of the Phoenix, surreptitiously modifies the memory of a
student, Marietta Edgecombe, to prevent her from incriminating Harry. During the multi-
character confrontation in which this takes place, both Shacklebolt and Dumbledore
intervene to prevent a teacher, the ev il Dolores Umbridge, from shaking Ms.
Edgecombe.
134 Yet Dumbledore speaks approvingly, even admiringly, of Shacklebolt’s
modification of Ms. Edgecombe’s memory ; Dumbledore shows no awareness of the
hypocrisy inherent in protecti ng the student from mild physical abuse while applauding
129 ORDER OF THE PHOENIX 113 (Sirius Black). 130 GOBLET OF FIRE 78 (unnamed Obliviator.) 131 GOBLET OF FIRE 145 (Arthur Weasley). 132 GOBLET OF FIRE 685. 133 SCAMANDER , supra note ERROR ! BOOKMARK NOT DEFINED ., at xx. 134 ORDER OF THE PHOENIX 616.

Harry Potter and the Law
22
the violation of her mind. The modification of Ms. Edgecombe’s memory is not harmless,
however: Harry sees her “clutching her robe up to her oddly blank eyes, staring straight
ahead of her.”
135 She apparently recovers later, although as with Roberts we don’t see
enough of her to be certain.

The Ministry is obligated under internati onal wizarding law require it to keep the
wizarding world secret from the Muggle population as a whole.
136 The Ministry’s post
hoc use of Memory Charms is a sloppy way to fulfill this obligation and, arguably, does
not actually fulfill it at all: By the time the Memory Charm is used, the breach of the
Statute of Secrecy has already occurred.

The inconsistencies in the Ministry’s Unforgiv able Curses policy are self-serving; spells
very dangerous to the public (both Muggle and magical) but usef ul to the Ministry are not
banned, while spells useful to the Ministry’s opponents and not particularly useful to the
Ministry are banned. At presen t the Ministry is serving itself rather than any broader
constituency; the interests of wizards might be better served by permitting the use of the
Killing Curse in self-defense, and would certainly be better served by banning the
Dementor’s Kiss. The interests of Muggles are not taken into account at all; their
memories are erased and tampered with at will to cover up sloppy work by the Ministry.
It remains to be seen whether the next y ear will bring about any improvement in the
Minstry’s rule, let alone a genuine rule of law.

Punishment in the Harry Po tter Novels (Joel Fishman)

J. K. Rowling depicts punishment both by H ogwarts teachers and to a lesser extent
governmental criminal punishment in the Harry Potter novels.
137 The narratives,
however, neither define nor explain how or why certain punishments are determined.
Given that a wide range of philosophical arguments for and against punishment
(retribution vs. non-retribu tivist; consequential vs. non- consequential philosophies),
138
one might expect some level of consistency in the narratives. However, the narratives are
anything but consistent in the use of punishment,
139 which leaves the reader uneasy about
135 ORDER OF THE PHOENIX 617. 136 International Statute of Wizarding Secrecy of 1692. See C HAMBER OF SECRETS 21; S CAMANDER , supra
note
ERROR ! BOOKMARK NOT DEFINED . , at xvi; K ENNILWORTHY WHISP , QUIDDITCH THROUGH THE AGES
16 (London: WhizzHard Books 2001). Only a few Muggles are privileged to know of the wizarding
world’s existence; this group includes the Prim e Minister and immediate relatives of wizards. See
S
CAMANDER , supra note Error! Bookmark not defined. , at xx; P RISONER OF AZKABAN 37-38, 44, 208. 137 When students first enter Hogwarts before they enter the Great Hall for the sorting, Professor
McGonagall informs them: Ayour triumphs will earn your house points, while any rule breaking will lose
house points. @ (S
ORCERER ’S STONE , 114). The giving and taking away of points are consistently discussed
throughout the books because of the need to see who will win the House Cup at the end of the year. The use
of criminal punishment is limited to books 3 to 6, but only in certain scenes that relate to Azkaban prison,
the trials of the Death Eaters, and a couple of isol ated incidents like Morfin receiving three years in
Azkaban for his attack upon Muggles (H
ALF -B LOOD PRINCE , 210-11) and then later a life sentence for
killing the Riddles ( Id., 367).
138 A READER ON PUNISHMENT (R. A. Duff and David Garland, eds. Oxford University Pr., 1994); L UCIA
ZEDNER , CRIMINAL JUSTICE , ch. 6 (Oxford U. Pr. 2004) (Clarendon Law Series). 139 Rowling does not explain how sentencing in the crimin al justice system is meted out to criminals except
for the Unforgivable Curses which results in lifetime imprisonment. It is unclear if there are any other

Harry Potter and the Law
23
punishments in the wizarding world, and perhaps questioning punishment in
contemporary society.

The narratives extensively portr ay the use of punishment within the school setting. Like
most boarding school stories,
140 rewards and punishments play an important role in how
students relate to each othe r as shown in the inter-house rivalries, Quidditch, and the
competition for the annual House Cup. The students are awarded points for good
behavior and points taken away for bad behavi or. There appears to be no specific code or
guidelines for punishment within Hogwarts School. Teachers are permitted to give or
take away points for good work, misbehavio r, or for no apparent reason, usually ranging
from one to sixty points, depe nding on the seriousness of the in fraction or the bias of the
teacher. Professor Snape constantly takes points away from Harry, Ron, and Hermione
(although she is always winning points from othe r teachers for her smartness); even Prof.
McGonagall as head of Gryffindor gives and takes points away as needed to the main
protagonists, e.g., 150 points taken away in Sorcerer’s Stone for being caught out after
dark;
141 while Dumbledore gives b ack 170 points at the end of the volume for Gryffindor
to win the House Cup.

Detention also plays a part in the punishment s, such as Ron Weasley’s having to polish
armor without using magic in Chamber of Secrets, Harry’s having to write his sentences
in his own blood for Dolores Umbridge in Book 5, or James Potter and Sirius Black’s
double detention for using an illegal hex upon another student in Half-Blood Prince.

Dolores Umbridge is an exam ple of a particularly mean and biased teacher from the
standpoint of Harry and his fr iends. Harry receives at least two weeks of detention from
her causing him to miss his Quidditch matches: “I think it a rather good thing that you are
missing something that you really like to do. It ought to reinforce the lesson I am trying
to teach you.” Her imposing of “writing lines” using a pen that drew blood as ink served
as a punishment for both Harry and othe r students who talked back to her.
142 This results
in scar in the back of his hand, “I will not tell lies” after a period of time. Unknowing the
type of punishment he was receiving, Hermi one, at one point, says “At least it is only
lines...It’s not as if it’s a dreadful punishment, really....”
143 Harry knew if he told them he
would see a “look of horror” upon their faces. Even worse, from Harry’s point of view, is
Umbridge’s punishment of lifetime banishment from the Quidditch team for Harry and
the Weasley twins for fighting Malfoy and other Slytherins.
144 (Lifetime is, of course, in
the eye of the beholder. Once Umbridge is gone , Harry is back on the team as captain in

wizards imposing criminal sentences except for the Minister of Magic and the wizengamot, the types of
crimes for which sentences are handed out, and the various types of sentence imposed.
140 Deborah De Rosa, Wizardly Challenges to and Affirmations of the Initiation Paradigm in Harry
Potter ,H
ARRY POTTER ’S WORLD : MULTIDISCIPLINARY CRITICAL PERSPECTIVES 163-84 (Elizabeth E.
Heilman, ed. 2003).

141 J. K. ROWLING , HARRY POTTER AND THE SORCERER ’S STONE 243-44 (1997). 142 J. K. ROWLING , HARRY POTTER AND THE ORDER OF THE PHOENIX 248, 266-67 (2003). 143 Id. 269. 144 Id . 416-17.

Harry Potter and the Law
24
book six.)

Outside of school, the narratives portray the criminal justice system as arbitrary, but also
sometimes as incompetent. The Ministry of Magic can recognize when illegal use of
magic occurs, but cannot determine always who has done it. This leads to unfair
punishment for Harry in two important instances. In Chamber of Secrets, Dobby’s use of
the hover charm results in Harry’s receivi ng a warning letter from the Ministry
forbidding underage wizards to use magic a nd also a violation of section 13 of the
International Confederation of Warlocks’ Statute of Secrecy.
145 In Order of the Phoenix ,
at the Harry’s trial, Minister Fudge does not give credit to Harry’s claim that a house-elf
had committed the crime until Dumbledore offers to have Dobby appear as a witness.
Nor did the Ministry know that he had used magic to counter the appearance of
dementors in Little Whinging until Harry pointed this out rather forcefully and
Dumbedore effectively defends him.

Punishment for crimes can lead to prison, but only a few examples are portrayed in the
novels. There appears to be only one pris on to send those found guilty of crimes,
Azkaban Prison. Morfin Gaunt gets thr ee months for attacking Muggles, while
Mundungus Fletcher gets a lesser sentence for stealing. Fudge’s sending Hagrid in
Chamber of Secrets and Scrimgeour sending Stan Shunpike to Azkaban Prison in Half-
Blood Prince , when both men know they do not deserv e punishment, is capricious in an
effort to show that the Ministry is doi ng something against Voldemort. There is no
recourse for them. Hagrid eventually is releas ed, but Shunpike is still in prison at the end
of book 6. Voldemort’s use of memory charms to have Morfin admit to a murder he did
not commit and then be placed in Azkaban is unfair as well.

The use of the Unforgivable Curses automatically sends people for life to Azkaban
Prison. Death Eaters, like Be llatrix Lestrange or Barty Crouch, Jr., who are loyal
followers of Voldemort’s are punished for bot h their past criminal behavior and to
prevent future crimes. Lifetime imprisonment protects the community from their
escaping and returning to aid their evil master . At first it appears that Sirius Black’s
escape poses a direct danger to Harry, but onl y later do we find out that he has been
imprisoned wrongly by showing Peter Pettigre w actually committed the killing of the
Muggles, but Black is still wanted by the Ministry. Underage wizards’ testimony will not
be accepted by the Ministry for proof of hi s innocence. In our own society, we see
prisoners obtaining releases from prison based on DNA evidence proving they were
falsely convicted.
146

The dementors’ role as the Prison’s guards also serves to administer the ultimate
punishment: death. Attempts to escape will result in the “dementor’s kiss” that leaves the
person worse than dead, an empty body without a soul.
147 Although they sided with
145 J. K. ROWLING , HARRY POTTER AND THE CHAMBER OF SECRETS 20-21 (1998). 146 Attorney Barry Scheck’s Innocence Project has been used by a number of law and journalism schools to
investigate individual criminals to prove their innocence of the crime they were convicted of. See generally
A
CTUAL INNOCENCE . 147 J. K. ROWLING , HARRY POTTER AND THE GOBLET OF FIRE 703 (2000).

Harry Potter and the Law
25
Voldemort in the first war, the ministry will not believe that they will go back to
Voldemort once he returns; but they do.

Two other crimes that result in punishment are part of the magical world. First, the killing
of a unicorn, as Voldemort did in Sorcerer’s Stone to keep alive, results in a cursed life:
“Only one who has nothing to lose, and everythi ng to gain, would commit such a crime.
The blood of unicorn will keep you alive, even if you are an inch from death, but at a
terrible price. You have slain something pure and defenseless to save yourself, and you
will have but a half-life, a cursed life, from the moment the blood touches your lips.”
148
For Voldemort, who is trying to gain immortal ity, the killing of the unicorn is secondary
to keeping himself alive. Second, the Unbreak able Vow, as taken by Snape to Narcissa
Malfoy, cannot be broken or the person suffers death, as Ron tells Harry about such an
episode when he was younger.
149

Lesser crimes for which punishments are not spec ified include the failure to sign with the
Ministry as an Animagus and the use of ver itaserum. It is interesting, however, that
Dumbledore uses veritaserum to get the tr uth from Barty Crouch, Jr., while Dolores
Umbridge unsuccessfully uses it upon Harry to get information about Dumbledore.
150
The Ministry apparently did not have knowle dge of their use, or doesn’t object, because
charges are never brought against them.

In conclusion, the Harry Potter narratives portray a system that attempts to limit
misbehavior through both rewards and punishment s. The application or these rewards
and punishments, however, is quite arbitrar y. Teachers have enormous discretion in
giving punishments and rewards. In the crimin al realm, the Minister of Magic can follow
or bend the law depending on how he relates to specific people. The use of magic may be
punished depending on who the person is who co mmits a particular illegal act. Thus,
readers come to understand that rule-breaking or criminal behavior may or may not be
punished because of an unfair administration of justice by those in charge of the system.
Such a portrayal leaves the reader open to questioning today’s criminal justice system as
well.

Status, Rules and the Enslavement of th e House-Elves (James Charles Smith)

House-elves, magical creatures with enormous eyes and bat-like ears, are enslaved to one
wizarding family for the elf's entire life. These family-elf relationships can span
generations. Elves generally have great devotion and loyalty to their wizard families.
Their code includes keeping family secrets, and never saying anything critical about the
family to outsiders. They dress in rags and do not own real clothing. Although elves are
not wizards, they communicate and express emotions in human ways. Elves who
misbehave are physically punished, sometime s by themselves without their masters’
intervention.

148 H ARRY POTTER AND THE SORCERER ’S STONE 258. 149 J. K ROWLING , H ARRY POTTER AND THE HALF -B LOOD PRINCE 35-37, 325-26 (2005). 150 H ARRY POTTER AND THE GOBLET OF FIRE 517, 683.

Harry Potter and the Law
26
Two of the books have elf emancipation stories. In The Chamber of Secrets, we meet
house-elf Dobby, a servant to the villainous Ma lfoy family. Dobby surreptitiously aids
Harry by warning him of a grave threat, ea rning his gratitude. Harry subsequently
engineers Dobby’s freedom, taking advantage of a custom, enshrined in Wizard law, that
a master’s gift of clothing to an elf signifi es emancipation. During a heated confrontation
involving Harry, Dumbledore, and Lucius Ma lfoy, Harry tricks Malfoy into tossing a
sock in Dobby’s directio n, which Dobby takes up.
151

Every system of property law has a set of transfer rules.
152 Often but not always those
rules are formal. 153 The gift-of-clothing custom represen ts a formal transfer rule. It is a
symbolic act with legal conse quences. Although it has no real-world antecedent of which
I am aware, it fits within our social and lega l traditions. Socially, historically and today,
specialized clothing often show s a person’s employment status, or shows membership in
a particular trade or occupati on. Members of medieval guild s wore particular clothing.
154
Epaulets displayed rank. 155 In colonial America, landowne rs with particular quantity of
landholding were allowed to dress a certain way. 156 Perhaps this is the base of the saying,
“Clothes make the man.” Thus, a change in ga rb logically shows a change in status as
slave or servant.

Legally, the elf emancipation custom fits with in the traditional use of a symbol, or a
symbolic ceremony, to transfer or validate property. Throughout history, the law has
required acts other than, or in addition to, the mere expression of intent to accomplish
property transfers.
157 Ownership transfers of goods and lands required delivery. 158 For
land, medieval England required a symbolic de livery, known as livery of seisin, in which
the owner handed a clump of sod to the grantee.
159 A wizard’s handing over of clothing
to an elf is not so different. Modern law has tended to replace formal rules involving
symbols with formal rules requiring a writing,
160 but that is just re placing one type of
symbol with another.

When it comes to the manumission of slav es, various slave-holding societies followed
different methods. Nineteenth-century U.S. slave law generally used paper records for
151 Tim Hall discusses this episode from the perspective of contract intent. See __. 152 Certain property rights are sometimes made inalienable. See, e.g., Guido Calabresi & A. Douglas
Melamed, Property Rules, Liability Rules, and Inalienab ility: One View of the Cathedral, 85 Harv. L. Rev.
1089 (1972). No system of property law, as we know it, could possibly exist if all rights were inalienable.
153 NO CITATION NEEDED HERE – THIS IS A GENERAL PROPOSITION. 154 Costumes and courtiers: garments and fashion ideas in late medieval Western Europe, available at:
http://www.ceu.hu/medstud/manual/SRM/costumes.htm
155 Id. 156 Linda Baumgarten, Colonial Dress Codes, Colonial Williamsburg Journal CW Journal (Winter 03-04),
available at http://www.history.org/Found ation/journal/Winter03-04/clothing.cfm
157 NO CITATION NEEDED HERE – CITE IN NEXT SENTENCE HANDLES THIS. 158 Cornelius J. Moynihan & Sheldon F. Kurtz, Introd uction to the Law of Real Property 26-27 (3d ed.
2002).
159 Id. at 204-05. 160 For example, modern statutes of frauds requires a writing for certain transactions. See Robin Paul
Malloy & James Charles Smith, Real Estate Transacti ons: Problems, Cases, and Materials 131-135 (2d ed.
2002).

Harry Potter and the Law
27
slave transactions, not only manumission but sales and mortgages. 161 One symbolic act
that sometimes had legal significance was the slave’s movement to another
jurisdiction,
162 especially when accomplished by th e master or with the master’s
consent. 163 Transportation to a new place was the badge of emancipation. 164 In the
famous 1772 case of James Somerset, Lord Mans field held that a slave transported from
West Indies to England, became free the in stant the slave breathed the English air.
165 The
infamous Dred Scot decision raised the same issue: Did the relocation of Dred Scot from
Missouri to the territory of Minnesota effect his freedom?
166

In The Goblet of Fire , emancipation moves beyond the individual, raising a challenge to
the institution. Dobby is now a free elf, but what of all the others? Hermione becomes
sensitized to the plight of the house- elves through a house-elf named Winky. Upon
investigation, she is shocked to learn that Hogwarts has scores of house-elves, who cook
and clean for the students. She promptly la unches a crusade, forming the Society for the
Promotion of Elfish Welfare (S.P.E.W.), but gets virtually no support from her fellow
students at Hogwarts.

Is elfin bondage morally justified, or is it as evil as the human institution of slavery?
Rowling shows Hermione as a crusader, as an abolitionist. Yet as narrator Rowling does
not interject a moral judgment. The reader is left to decide whether Hermione's cause has
great merit, is half-cocked, or is somewh ere in between. Ambiguity arises for two
reasons.

First, the proper position of elve s in society is unclear. Who are elves, after all? What is
their proper relationship with "people" or “wizards.”
167 Modern property law freely
recognizes property righ ts in living things. 168 The law sanctions the ownership of plants
and animals, both in their natural state 169 and in genetically modified forms. 170 The law
also allows the ownership of pr operty related to human beings. 171 For example, organs,
161 William Goodell, The American Slave Trade in Theo ry and Practice 44-62 (original 1853; 1968 reprint). 162 DELETE – THIS SENTENCE NEEDS ONLY ONE FN AT ITS END. 163 See Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981). 164 DELETE – THIS SENTENCE IS MY CONC LUSION, WHICH FOLLOWS FROM THE PRIOR
SENTENCE AND ITS AUTHORITY
165 Somerset v. Stewart, 98 Eng. Rep. 499 (K.B. 1772). 166 Dred Scott v. Sanford, 60 U.S. (19 Howard) 393 (1857). 167 Wizard families own house-elves, and so do wizard institutions, such as Hogwarts School. Muggles
apparently never own house-elves. Indeed, there is no evidence that they can see, or are allowed to see,
elves. In Harry Potter , both Muggles and Wizards are “people.” Not only are they similar in appearance,
they can reproduce. That’s why we have “half-blood s,” with attendant racial conflicts between those of
mixed parentage and “purebloods.” The standard biologist’s definition of what makes one species is the
ability to reproduce. Conversely, there is no evid ence in the books that elves can reproduce with Wizards
or Muggles (but after all, these are children’s books; the author may not have told us everything). So elves
are a separate species. But are they on a lower plane?
168 See James Charles Smith, Edward J. Larson, John Copeland Nagle & John A Kidwell., Property: Cases
and Materials 311-349 (2004).
169 Id. at 311-320. 170 Id. at 320-328. 171 Id. at 328-349.

Harry Potter and the Law
28
body tissue, blood, and reproductive materials are the subjects of property. 172 Modern
law, however, draws the line with respect to property in human beings at what we call
slavery.
173

Slavery, as we understand it, relates solely to the enslavement of human beings by other
human beings.
174 Fantasy fiction permits a fuzzing th at we don't have in the real world
(or that at least most people do not perceive). In Rowling's fictional world, are we to treat
wizards and elves as equals? Are they a di fferent species? Elves do exhibit a number of
what characteristics that we would call hum an. They speak; they reason; they have
emotions. If elves are not wizards, then perh aps they are not on the same moral plane as
wizards. If this is true, then slavery is not the issue. Instead, animal rights perspectives
may inform the mistreatment of elves by wizards.
175

The second form of ambiguity relates to th e elfs’ behavior when confronted by the
S.P.E.W. agenda. Winky and mo st of the other elves are singularly unwilling to embrace
Hermione's call for liberation. What should we make of the elves' acceptance of their
station as servants? Is Hermione pressing for a reform that the elves do not want? Is she
trying to impose her lifestyle preferences upon th em? Are the elves happy? Perhaps they
are really employees under l ong-term contracts, working unde r conditions that are a bit
unusual. Or are the elves, as Hermione beli eves, brainwashed? Are they akin to human
victims of domestic violence?
176 If Hermione is right, when and if the elves are liberated,
they’ll have a better life, and they shall come to realize the value of freedom. We await
the finale, Book number 7.

Excuse, Justification, and Authority (Daniel Austin Green)
“Laws can be changed,” said Fudge savagely.
“Of course they can,” said Dumble dore, inclining his head. “And you
certainly seem to be making many changes, Cornelius. Why, in the few short
weeks since I was asked to leave the Wizengamot, it has already become the
practice to hold a full criminal trial to deal with a simple matter of underage
magic!”
177

While laws can indeed be changed, they are generally expected to be followed, even
when in need of change or recently changed, regardless of their merit. This is some
formulation of the rule of law. Yet the ri ghteous indignation that drives Harry and his
172 Id. at 333-349. 173 U.S. Constitution, 13 th amendment. 174 Black's Law Dictionary (8th ed. 2004), slavery (“one person has absolute power over the life, fortune,
and liberty of another”).
175 In the history of U.S. slavery, there was a pronounced tendency of slavery apologists to portray African-
Americans as subhuman. This attitude persisted to a significant degree after the Civil War into the Jim
Crow era. See Alfred L. Brophy, Reconstructing the Dreamland: The Tulsa Race Riot of 1921, Race
Reparations, and Reconciliation (2002).
176 It is sometimes difficult to explain why some domestic violence victims stay in abusive relationships,
when it seems to outsiders that they could readily exit. Perpetrators of domestic violence on occasion seek
to justify their acts by asserting that their victims enjoy their maltreatment.
177 J.K. ROWLING , HARRY POTTER AND THE ORDER OF THE PHOENIX 149 (2003).

Harry Potter and the Law
29
friends (adult and adolescent alike) doesn’t strike the reader as something “wrong.”
Indeed, we want to see it, we yearn for th eir revolution. But what makes Harry – and
even the reader – morally justified? Jeremy Waldron’s work on the authority of law very
convincingly argues that even “bad” laws mu st be followed, insofar as following bad law
is the only way to truly establish any authority.
178 Since we will always follow “good”
laws, even those of a regime with no legitimat e authority, following the bad laws of a just
regime – subjecting ourselves to the government itself – is the only way to prove it has
authority.
179 If we are to believe Waldron, this ce rtainly complicates our justification of
Harry.

But Harry is facing more than just a bad la w, or even laws that are unfair in their
application. He is subjected to an inquisition – and one that is occurring under a regime
that is daily changing the way they operate a nd trying to sever from society all those that
call for accountability. The trial that opens Order of the Phoenix is the prelude to the
question that Harry and his frie nds must face throughout their fift h year: when is it just to
act outside of the law?

Harry’s full-fledged trial is for a “crime” th at is rarely prosecuted. Moreover, Harry
committed the act in order to save human life – his own and that of his muggle cousin,
Dudley Dursley.
180 We know of many inst ances of magic performe d outside of Hogwarts
by underage wizards, both in current times and in stories of what has happened in past
years. Yet we know of no wizard that has actu ally been expelled from Hogwarts for such
acts, much less subjected to a Wizengamo t hearing. Still, the trial takes place under the
law . What, then, makes Harry’s trial anythi ng more than an appropriate, selective
prosecution, especially considering that Harry has violated this law before?

The answer is complex, and, at least as a pie ce of literature, probably hinges largely on
our sympathy for Harry. But there’s a better answer, a jurisprudential answer: natural
rights and laws can vindicate the violation of positive law. We afford leeway to even the
poorest of enactments by a government that ge nerally upholds the natural rights of its
citizens. This is where Waldron’s argument is most applicable. But a just government
also provides it citizens with at least some measure of equality in voice and impact.
181
This, however, is exactly what the Ministry of Magic fails to do.

With the vesting of government in its cons tituents also comes the notion that people
know what “good” law is. Yet most people don’t go around writing – or even citing to –
positive law. They are guided by their own perceptions of what rights are naturally
afforded them. And the vested interest in maki ng, or at least participating, in the law also
compels people to reject positive law that opposes natural law – that is, natural law as
they perceive it .
182 Although Harry makes it throug h the trial unscathed, without
178 See Jeremy Waldron, Legislation, Authority, and Voting , 84 GEORGETOWN L. J. 2185, 2195-97 (1996). 179 Id. 180 See Chapter 1, J.K. ROWLING , HARRY POTTER AND THE ORDER OF THE PHOENIX (2003). 181 See generally Ronald Dworkin, What is Equality? Part 4: Political Equality , 22 U.S.F. L. REV . 1 (1987). 182 Professor Finnis thus framed the moral question an in dividual faces when “one is confident that the legal
institutions of one’s community will not accept that th e law in question is affected by the injustice one
discerns in it… : Given that legal obligation presump tively entails a moral obligation, and that the legal

Harry Potter and the Law
30
violating more laws, many will be violated in the remaining pages of Order of the
Pheonix . The boundaries of just how great the asymmetry between positive and natural
law must be in order to compel breaki ng the law may be unclear, but what is
unambiguous is the moral just ification – perhaps even the requirement – to do so.

At the end of Prisoner of Azkaban , Harry and Hermione save Buckbeak the hippogriff
183
and Sirius Black 184 from their death sentences. In saving Black and Buckbeak, charges
along the lines of obstruction of justice and likely much more could presumably be
brought if Harry and Hermione were caught. Harry and Hermione are in this scene
vigilantes of a sort, as they frequently are, taking into their own hands the administration
of justice. Of course, we know the death sentences of Black and Buckbeak to be, in fact,
a miscarriage of justice. But does the pres ence of miscarriage warrant sidestepping the
law in order to effectuate true justice?

Morally, yes. This is why Harry and Hermione remain and indeed elevate their status as
heroes among the readers. But were Harry and Hermione free of guilt themselves, or
have they transgressed, such that they shoul d face some sort of punishment? Before even
trying to operate through the proper channels , they took matters into their own hands,
subverting the established and generally we ll-functioning justice system. Likely,
Dumbledore was right in his assessment that th ree thirteen year-old wizards would not be
believed by those in authority,
185 but nobody knows this to be true. And Dumbledore, at
this time, still commands a great deal of authority in the wizarding world. 186

The scene is seemingly complicated but, I maintain, actually simplified by the fact that
time travel played such an in tegral role in the rescue.
187 Precisely because time travel is
available, our heroes should have exhauste d every possible alternative before embarking
on their path that so flagrantly disregarded the legal establishment. Had they not been
successful in this avenue, they could have ultimately resorted to time travel to prevent the
miscarriage of justice. Black would have b een in no danger. Just as in the case of
Buckbeak, Black’s death would not have o ccurred, because Harry and Hermione of the
future would have prevented the death in the present.

So, although morally compelled in their actions , I will say that Harry and Hermione acted
unethically. Perhaps a somewhat artificial distinction, what I mean to say is that Harry
and Hermione took actions that, while mo ral, cannot be considered normatively
acceptable by a society, lest everyone begin to act in such a way. I’m not saying that any
determination of guilt they were to face s hould not be considered in light of the
mitigating factors, but I am saying that to normatively condone their behavior is to

system is by and large just, does a particular unjust law impose upon me any moral obligation to conform
to it?” J
OHN FINNIS , NATURAL LAW AND NATURAL RIGHTS 357 (1980). 183 The mythical griffin (lion, eagle), horse. 184 Sirius Black is Harry’s godfather, but has been falsely imprisoned for the death of Harry’s parents,
framed by a traitorous friend of the Potters.
185 J.K. ROWLING , HARRY POTTER AND THE PRISONER OF AZKABAN 392 (1999). 186 Later, in Order of the Phoenix , Dumbledore is stripped of much of his authority (in the Wizengamot and
elsewhere), but he is still in good standing at this point.
187 See Chapter 21, J.K. ROWLING , HARRY POTTER AND THE PRISONER OF AZKABAN (1999).

Harry Potter and the Law
31
undermine the rule of law. Natural law can provide the basis of justification for
violations of positive law, but to justify these actions of Harry and Hermione crosses the
limits of natural law or human rights jus tifications, confusing them with moral
justifications.

Harry and Hermione’s actions are legally un justifiable. They are, however, legally
excusable. This old distinct ion provides that justified acts are t hose that, although an
exception to the normal rule, are acts that a society condones and wants, or at least
expects, to see again and again.
188 Excusable acts, on the other hand, are those that
society, while finding the acts to be deplorable, will forego part or all of the typical
punishment based on the specific circumstances.
189 And old example of the distinctions
compares the public hangman, justified in carrying out a court’s sentence, to an excused
killing in misadventure.
190

So what? Harry and Hermione may be merely excused in their actions, but what
difference does this make – they were right, right? No. Justifications sanction the
choices of the actor, while excuses remedy an asymmetry between the circumstances at
hand and the purpose of the law.
191 In this case, the asymmetry comes about in that laws
against aiding in prison breaks are not inte nded to punish those that save an innocent
from an unjust death. But prec isely because the behavior is merely excusable, there is no
sanctioning of Harry and Hermione’s choices, rather a new, ex post determination of
justice says that they acted properly.

What I have endeavored to do is to separa te the explanation for why we identify with
Harry and Hermione, and approve of their act ions, from the explanation for why they do
not deserve to go to jail. Th ese are not the same. That is why the excuse-justification
distinction also provides that excused acts alone require know ledge of the circumstance,
but justifiable acts are still justified when pe rformed in ignorance to the circumstances at
hand.
192

Because Harry and Hermione’s actions are unjustifiable, the question of culpability
specifically abstains from the issue of the motives, which are indeed moral. I’m basing
this determination of morality on underlying natural law, 193 natural rights, 194 or human
rights notions 195 – any construction of the bundle of ineffable rights each of us has an
entitlement to as a human being—in this case, the highest right, life itself. But I’m also
saying that protecting one of th ese rights is not necessarily sufficient to legally justify
188 Wendy J. Gordon, Excuse and Justification: Transaction Costs Have Always Been Only Part of the
Story , 50 J.
COPYRIGHT SOC 'Y U.S.A. 149, 156 (2003). 189 Id. 190 J.C. SMITH , JUSTIFICATION AND EXCUSE IN THE CRIMINAL LAW 7-8 (1989). 191 “Usually, an “excuse” arises because of some kind of institutional lack of fit between the circumstances
and what the applicable law s eeks to accomplish.” Gordon, supra note 188, at 156.
192 SMITH , supra note 190, at 8. 193 See generally id. 194 See Lloyd L. Weinreb, A Secular Theory of Natural Law , 72 F ORDHAM L. REV . 2287, 2289-90 (2004)
(describing natural rights theorists as essentially formulating a secular version of natural law).
195 Id. at 2295 (noting that “human rights” is si mply the new name for “natural rights”).

Harry Potter and the Law
32
violating laws without also being an act that, normativ ely, our society wants to
encourage; it must also be carried out in a manner that society sees as acceptable
behavior. This is to be distinguishe d from the many violations of law in Order of the
Phoenix , where the actions of Harry and company are justified, in a legal sense, because
they not only advance this cl ass of liberty, but are also acts that society wants to
encourage, notwithstanding th eir supposed illegality.

The authority of the Ministry of Magic deteriorates in Order of the Phoenix, culminating
in the removal of Cornelius Fudge , the Minister of Magic. But why does it happen at that
stage, and not sooner? At what point does a once-legitimate regime cross the line of
legitimacy, changing from a just government occasionally issuing bad edicts to a
completely unjust government?

The turning point, I believe, is when the gove rnment – the Ministry of Magic – begins
punishing justifiable “crimes.” Were Harry and Hermione to be punished for their acts in
saving Buckbeak and Black, the government would still maintain its legitimacy.
Although punishment might also be excused, in part or in full, because their actions were
not justified , excuse is, in a sense, only a privileg e. Excused acts are not unlike acts of
civil disobedience; they are morally justified or even compelled, but the actor may face
the consequences for their actions.
196 But legally justifiable acts entitle their actors to the
fruits of justification: no punishment.197

But in Order of the Phoenix Harry and Hermione are subjected to punishment for
violating laws that they were justified in violating. While excuse and justification are
both exceptions to the general law, justificati ons, since they are acts society wishes to see
repeated, entitle their actors to avoid punishment, wh ile avoiding punishment is merely a
privilege or possibility for acts that are potentially excu sable, because these acts, since
they are not acts society wishes to see repe ated, require an individual determination of
actions.

While it is easy to see that th e Ministry of Magic has lost its claim to rightful authority
into Order of the Phoenix , the point at which this happens – or begins to happen – is
difficult to identify. The excuse-justificati on distinction in punishment, however, can
help us identify when the loss of legitimacy in authority begins – in both the wizarding
world and our own mundane muggle world.

Magic and Contract: The Role of Intent (Timothy S. Hall)

I have used scenes from Harry Potter to intr oduce first-year law students to the role of
intent and assent in contract formation. Ma ny of these students come to law school with
a concept of law as something that is imposed on individuals from outside; that is, their
concept of law is better suited for a course in Criminal Law or Torts than for the course in
196 Recall that justification sanctions an actor’s choices, dispensing with punishment, while excuse abstains
from endorsing the actor’s choices, perhaps leaving some part of the now-mitigated punishment intact. See
Gordon, supra note 144, at 156; S
MITH , supra note 146, at 7-9. 197 Id.

Harry Potter and the Law
33
Contracts, where duties are not imposed, but are instead assented to. The usefulness of
the Harry Potter excerpts aris es from an analogy between contract formation and the
magical effects produced in the books. Both c ontract and magic require an expression of
intent in order to “make the magic happen.” I find that exploring the uses, and limits, of
intent in both Contracts doctrine and in Ha rry Potter excerpts is an enjoyable and
productive exercise for my classes.

The first exercise illustrating the importance of intent is based on the termination of the
master-house elf relationship. In Harry Potter and the Chamber of Secrets , the house-elf
Dobby, at risk of great personal harm, comes to Harry before his second year at Hogwarts
to warn him that someone intends to kill him during the school year, but Dobby cannot
reveal the identity of the culprit. House- elves are servants of magical families and
institutions.
198 One of the terms of the relati onship is that house-elves do not own
clothing, dressing instead in ra gs. If given clothing, the master-servant relationship is
severed, and the house-elf is “freed.” Afte r Harry defeats Lord Voldemort, Harry and
Dumbledore receive a visit from the v illainous Lucius Malfoy, accompanied by Dobby,
in Dumbledore’s office. Harry realizes, with hints from Dobby, that Malfoy is behind the
attacks, and develops a plan to reward D obby for his efforts. The dissolution of the
master-servant relationship comes about when the master makes a gift of clothing to the
house-elf.
199 Harry hides one of his socks in a book belonging to Malfoy, and returns the
book to him.200 Upon finding the sock, Malfoy toss es it aside, where it is caught by
Dobby. Dobby is released, and no longer bound by Malfoy’s orders. In fact, Dobby uses
his new freedom to protect Harry from Malf oy’s rage at having “lost [his] servant.”
However, the act of giving the sock was not , from Lucius’ point of view, intended to
signify his intent to te rminate Dobby’s servitude.
201 How is it that it nonetheless carries
sufficient weight to affect that result?

On the one hand, this privileging of (objective) act over (subjective) intent might be seen
as consistent with the common la w of contract. In the case of Lucy v. Zehmer,
202 studied
by many first-year law students, a seller’s allegedly “joking” delivery of a promise to sell
real estate is held to constitute a binding acceptance of the buyer’s offer to purchase,
198 Although others analyze the house-elf relationship as akin to slavery, and that is certainly a reasonable
reading of the text, the status of the house-elf seems to lack certain incidents of property. For instance, I do
not believe that there is any indication that house-elves are alienable or transferable between magical
families (at least, until Dobby is freed from the Malfoys’ service and enters into a freely bargained contract
with Hogwarts). I will thus treat the house-elf’s employment as a type of contract, although certainly a
morally questionable one - perhaps a form of indentured servitude.
199 This is reminiscent of a a prisoner receiving a new suit of clothes before being released to make his way
in free society. See The Shawshank Redemption, ____.
200 This is the scene as depicted in the movie. See [Movie citation, perhaps with chapter reference from
DVD]. In the book narra tive, the journal is placed inside the sock. When Mr. Malfoy receives the sock, he
removes the journal and tosses the sock aside. [What effe ct, if any, does this have on the intent analysis?]
201 This is more clear in the film than in the book. In the book, Lucius opens the diary to find the sock
before tossing it aside, where it is caught by Dobby. In the film, Lucius simply tosses the diary aside,
without knowing that it contains a sock. In either case, the fact that it makes its way into Dobby’s hands is
merely coincidental from Lucius’ point of view.
202 84 S.E.2d 516 (Va. 1954)

Harry Potter and the Law
34
regardless of the seller’s true, subjective intent. 203 It is an elementary principle of
contracts that the relevant inte nt is the objective, expressed intent of the actor, not his
secret, subjective intent.
204 Since all of the actors in this scene know that the delivery of
a sock constitutes release of the house-elf fr om his servitude, the act itself is perhaps
sufficient for Dobby to reasonably conclude that Malfoy intends to free him.

On the other hand, an objective expression of intent must be reasonably readable as
assent to be bound before it may be legally acted on by the other party.
205 An “offer”
which is obviously made in jest, in anger or by mistake cannot be “snapped up” by the
other party to his advantage.
206 This seems to be applicable to the Dobby facts, 207 and
would thus give Malfoy a “defen se” to Dobby’s claim to freedom. 208

Emphasis of act over intent is seen in othe r aspects of the Harry Potter mythology as
well. In another house-elf plotline, in Goblet of Fire Hermione seeks to “free” the house-
elves working at Hogwarts. She knits small ar ticles of clothing which she then conceals
in the student dormitory, hoping that the elves will find them and be “freed.” In this case,
problems arise with the intent expressed by bot h Hermione and the elves. First, although
Hermione clearly intends to grant the house-elves their freed om, how does she act as an
agent of Hogwarts in this manner? She clea rly does not have express authority to act for
Hogwarts, which depends greatly on house-elves fo r domestic chores, and it is difficult to
see how she could have an implied authority to release the elves, as no reasonable person
would think that a student would be empowered to make personnel decisions for a
school. Perhaps the author means to imply th at the mere objective act of giving clothes
creates the magical effect of granting freedom, without regard to the intent of the donor
or her authority to make the gift. But if this is so, why could Harry not free Dobby from
Malfoy’s service by simply giving him the sock himself, rather than staging the elaborate
deception at the end of Chamber of Secrets?

Second, it turns out that , unlike Dobby, the majority of th e elves working at Hogwarts do
not want to terminate their relationship with the school. To avoid the risk of finding an
article of clothing, they refuse to clean th e student dorms, forcing Dobby, who is working
203 84 S.E.2d 516 at 521-22 (“The mental assent of the parties is not requisite for the formation of a
contract. If the words or other acts of the parties have but one reasonable meaning, his undisclosed
intention is immaterial.”)
204 E. Allan Farnsworth, Contracts §3.6 )(4 th ed. 2004). 205 See Lucy v. Zehmer, 84 S.E.2s 516 (Va. 1954)(“a person cannot set up that he was merely jesting,
when his conduct and words would warrant a reasonable person in believing that he intended a real
agreement.” (emphasis added)).
206 First Baptist Church of Moultrie v. Barber Co nstruction Co., 377 S.E.2d 717 (Ga. App.1989) (“If,
before acceptance, the offeree knows, or has reason to know, that a material error has been made, he is
seldom mean enough to accept; and if he does accept, the courts have no difficulty in throwing him out. He
is not permitted 'to snap up' such an offer and profit thereby.”); Wender Presses, Inc. v. United States, 343
F.2d 961, 963, 170 Ct.Cl. 483 (1965) ([An offeree] will not be permitted to snap up an offer that is too good
to be true; no agreement based on such an offer can … be enforced by the [offeree].")
207 How is the master to have laundry done by the house-elf if he cannot convey articles of clothing to it
without signifying the termination of the relationship?
208 Of course, in magic, unlike the law, there is no appeal from the effects of a spell or action. In this way,
the “laws” of magic are more akin to th e laws of physics than to social laws.

Harry Potter and the Law
35
for Hogwarts as an employee rather than an indentured house-elf, to do all the work
himself. Are we to conclude that the master 209 has the power to terminate the
relationship at will? 210 Could the elves not refuse to accept the clothing, and continue as
indentured servants at Hogwarts, a role they evidently find palatable? 211 Or, again, is the
author’s meaning that the act of receiving clot hing has magical effect independent of the
subjective intent of ei ther the donor or the recipient of the gift?

Finally, we see this privilegi ng of objective over subjective intent in the selection process
for the Triwizard Tournament in Goblet of Fire. Although Harry has not entered his
name into the Goblet, his name nonetheless emerges from the Goblet as one of the
Hogwarts Champions. Dumbledore tells Harry th at he must compete, as the selection of
his name has created a binding “magical contract .” Of course, since a contract requires
the assent of both parties, how can it be that Harry is bound to compete?
212

From these texts, it would appear that in the Potter universe, magic depends solely on the
satisfaction of certain formalities - the deliver y of an item of clothing to a house-elf, or
the appearance of one’s name from a list of candidates, suffice to bind the actor
regardless of intent.
213 On the surface, this would app ear to be consistent with the
objective theory of contract formation. Howe ver, a closer look at both worlds reveals
209 Or its agent, see id.
210 This may be true, since in Order of the Phoenix, Hermione suggests that the Order deal with the
treacherous house-elf Kreacher, who obeys orders from the portrait of Sirius Black’s dead mother rather
than from Sirius, his living master, is to “free” him. Sirius responds that freedom would kill Kreacher, but
does not deny that he would have the power to end the elf’s servanthood unilaterally.
211 This is also in keeping with th e increasing “darkness” in the HP wo rld. The reluctance of the house-
elves to be freed, and Ron’s (and others’) arguments that they enjoy their indentured servitude status,
reminds the reader of similar arguments made in the Amer ican Civil War that slavery was in fact in the best
interests of the African slaves, as they would be una ble to competently live in freedom and enjoyed the
security of slavery. William W. Fish er III, Ideology and Imagery in the Law of Slavery, in Slavery and the
Law (Paul Finkelman, ed.) at 52-53 (“ The key to [paternalist justifications of slavery] was the depiction of
Southern society as a whole as … hum ane. [] Inferiors obey and respect their superiours and are rewarded
with support and sustenance. … Many planters thought of themselves as patriarchs, who controlled but
were also responsible for their families and slaves, and sought in various ways to play the role of feudal
gentry[.]”); William E. Wiethoff, A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts
of the Old South, 1820-1850 at 39 (“Freedom to [slaves] is a benefit rather in name than in fact, and in
truth, upon the whole, their condition is not thereby improved … While they remain in what is here their
original status, provided for as they are in infancy, old age and infirmity, they are exempt from the cares
and anxieties of a recarious subsiste nce, and the wretchedness of actual want[.]” (citing Peter v. Hargrave,
5 Grattan 12, 22 (Va. 1848)).
212 One answer might be that competing is a term (perhaps implied) of the contract between Harry and
Hogwarts. I tell my students that their selection for Socr atic questioning in class binds them to participate,
regardless of whether they have expressed an intent to participate (by, for example, raising their hands),
because that is part of th e ground rules of law school, and they accep t those rules by enrolling in law school
and being assigned to (or, for upperclass courses, voluntarily enrolling in) my class. However, despite
what some first-year students may believe, class par ticipation is rarely a life-threatening exercise, and
participation in the Triwizard Tournament seems a bit too material an obligation to hang on an implied
duty.
213 Lucius Malfoy did not intend to free Dobby by presenting him with clothing; and the Hogwarts house-
elves would not have intended to be freed by inadvertently picking up one of Hermione’s hidden items of
clothing. Nonetheless, we are told that the act of delivery is magically binding.

Harry Potter and the Law
36
that this is not the entire story. Much of the law of contract formation exists to deal with
the shadowy boundary of expression of intent. 214 Doctrines of mistake, 215
misunderstanding, 216 fraud 217 and others provide exceptions to the basic rule of objective
intent. 218 Thinking about these aspects of the Harry Potter stories can provide useful
justifications for these exceptions to a strict rule of objective intent; in large part because
the magical world of Harry Potter does not seem to allow for such examples.
Examination of these scenes can reveal the ha rshness of the rule of objective intent taken
to extremes, and can illuminate for the law student and for the reader the necessity of
these amelioration doctrines that the law has developed.


Rule of Man (or Wizard) in the Harry Potter Narratives (Jeffrey E. Thomas)

While J.K. Rowling’s depiction of law a nd the legal institutions is negative,
219 and may
be some kind of indictment of the legal syst em in the real world, it also provides an
important and interesting context within wh ich to consider the moral role of the
individual. This predominance of the individual over law or legal rules is a theme that
runs throughout the individual Harry Potter narratives. It starts at the beginning with
Dumbledore’s decision to place Ha rry with his Aunt and Uncle.
220 Although the average
reader or viewer may not really think much about this, this scene shows the central role
and power of Dumbledore as an individual from the outset of the various Harry Potter
narratives. Though not cloaked in any official legal authority, he apparently makes a
sensible legal determination subjected onl y to the most modest kind of review.
(Basically, Professor McGona gall, a person who is subordinate to Dumbledore and
certainly has no greater legal authority, que stions the decision and then accedes to
Dumbledore’s decision.)
221

Dumbledore’s central role in the narrative is an example of a positive depiction of “rule
of man.”
222 While the “rule of law” and the “rule of man” are generally considered as in
opposition with one another, 223 and in Western culture the “rule of law” is the ideal, 224
214 E. Allan Farnsworth, Contracts 114 (4 th ed. 2004) (“This question [of assent] provoked one of the most
significant doctrinal struggles in the development of contract law[.]”)
215 Farnsworth, supra note ___, at §9.4 216 Raffles v. Wichelhaus, 1569 Eng. Rep. 375 (Court of the Exchequer 1864) 217 Farnsworth, supra note ___, at §4.10 218 Farnsworth, supra note ___, at §3.6

219 See supra note 11, as well as essays by Schwabach, supra text accompanying notes __-__, and Fishman,
supra text accompanying notes __ - __, which are part of this article.
220 SORCERER ’S STONE , supra note __, at 15-17. 221 Id . at 13-14. 222 Although the term “man” is inherently gendered, I use the term generically. The phrase “rule of man”
has been used historically, and carries connotations of arbitrariness and whim that are objected to by those
arguing in favor of rule of law. See Richard H. Fallon, Jr., “The Rule of Law” as a Concept in
Constitutional Discourse , 97 C
OLUM . L. REV . 1, 3 n.10 (1997). 223 As Professor Fallon notes, any discussion of Rule of Law “should begin with the familiar distinction
between ‘the Rule of Law’ and ‘the rule of men [sic].’” Fallon, supra note __, at 2-3. This distinction was
drawn in the historic case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (“The government of
the United States has been emphatically termed a government of laws, and not of men.”).
224 “The Rule of Law is a much celeb rated, historic ideal.” Fallon, supra note __, at 2.

Harry Potter and the Law
37
my thesis is that Dumbledore’s activities throughout the Harry Potter narratives
demonstrate the importance of the individual’s pursuit of truth and justice as predominant
over law. While law will often support truth and justice, this is not always the case.
Dumbledore’s leaving Harry with the Dursleys does not put law in opposition to truth or
justice, it just ignore the role of law. It is Dumbledore’s decision as an individual (albeit
with great wisdom and experience) that is s hown as the right thing to do even though it is
sometimes difficult regardless of the legal niceties.

In Prisoner of Azkaban , Dumbledore suggests that Harry and Hermione use the time
turner to save Buckbeak and Sirus Bl ack from an unjust, but certain, death.
225 This
suggestion creates a direct conf lict between the characters as individuals and the “rule of
law.” By using the time turner to circumvent the legal process, Harry and Hermione are
undoubtedly committing crimes of their own for aiding and abetting and probably for
misuse of the time-turner. Nevertheless, thes e risks and actions are justified by the higher
moral value of “justice.” A nd who can really disagree in this individual case.

The “rule of law” response, of course, is that we would have chaos and anarchy if
everyone determined to take the law into th eir own hands in pursuit of their perceived
version of justice. While this is surely correct, that really isn’t the point. Rather, in a sort
of deconstructionist way,
226 the point is that the rule of law is fallible and that when it
fails, the moral thing is to ta ke action to address it. Does that mean that we should resort
to breaking the innocent out of jail? Perhaps not, though in the right circumstances that
may be justified. The pairing
227 of law and injustice requires the reader or viewer to
grapple with the moral dilemma and to expl ore its implications. Law does not always
lead to justice, and justice sometimes require s that we break or circumvent the law.

225 PRISONER OF AZKABAN , supra note __, at 393. The book is more explicit on this point than the movie.
In the book, Dumbledore comments, “what we need . . . is more time.” Id. Hermione then understands he
is referring to the Time-Turner and suggesting that they go back in time. Dumbledore then tells them
where Sirius is being imprisoned, and implies that they should also save Buckbeak by saying, “If all goes
well, you will be able to save more than one innocent life tonight.” Id.
In the movie, by contrast, Dumbledore makes a more veiled suggestion. He says: “A mysterious thing,
time. Powerful. And when meddled with, dangerous.” Harry Potter and the Prisoner of Azkaban. After
telling them where Sirius is being detained, Dumbledore then says, “you know the laws, Miss Granger, you
must not be seen.” Id. Although this implies, rather than suggests the use of the Time-Turner, the
implication is still quite strong. Dumbledore’s final st atement in the movie is in a passive tense, which is
consistent with the more implied suggestion of the movie: “If you succeed tonight, more than one innocent
life may be saved.” Id.
226 “Deconstruction” is a technique that grew out of lite rary criticism. It takes an associational hierarchy
and “deconstructs” that hierarchy by turning it upside down for analysis. See Jeffrey E. Thomas, Legal
Culture and the practice: A Postmodern Depiction of the Rule of Law , 48 UCLA
L. REV . 1495, 1500-01
(2001). In modern legal culture, Rule of Law is ty pically paired with and put above Rule of Man in an
associational hierarchy. A deconstructionist way of analyzing Rule of Law therefore would switch the
hierarchy and ask what things would be like if Rule of Man were predominant over Rule of Law. My
contention here is that Dumbledore, as an embodiment of the Rule of Man, allows us to consider that
reversed hierarchy.
227 By “pairing” I mean to refer to the associationa l hierarchy that places Rule of Law above and in
opposition to Rule of Man. See supra note ___ [presently 168]. This “pairing” is used for a
deconstructionist analysis by inverting the hierarchy and putting Rule of Man above Rule of Law. See
supra note 171.

Harry Potter and the Law
38
While this opposition of law and justice is artificially sharp in this particular example,
there are many grey areas of law that permit extra-legal moral decisions. Consider, for
instance, prosecutorial discretion. Prosecutors have considerable power and discretion in
the criminal justice system.
228 The decision to prosecute sometimes sets an entire
“machine” into motion that can have enormous legal and personal consequences. 229 The
pairing of law and injustice may give the pros ecutor the moral fortitude to choose not to
prosecute even when the eviden ce technically would permit it.
230

This particular pairing
231 also focuses on the role of the individual. While we live within
a legal system, we act as indi viduals. Dumbledore, as an individual, has the wisdom to
know when to follow the rule or to ignore it. While he does not make it a point to break
the law or act extra-legally, he doesn’t seem too concerne d about law either. He goes
along to the trial of Buckbeak,
232 but when it goes awry, he allows Harry and Hermione
to intervene. He also allows Hagrid to be wrongfully accused of opening the Chamber of
Secrets, which results in his unjust an d immediate imprisonment in Azkaban,
233 but that
error is corrected in due course when the tr ue culprit is discovered. (At least it is
corrected the second time; though not corrected the first time, Dumbledore allows Hagrid
to become gamekeeper at Hogwarts thereby diminishing the impact of the injustice.)

228 See , e.g. , Leslie C. Griffin, The Prudent Prosecutor , 14 G EO . J. LEGAL ETHICS 259 (2001); Andrew B.
Loewenstein, Note, Judicial Review and the Limits of Prosecutorial Discretion , 38 A
M. CRIM . L. REV . 351
(2001); Ellen S. Podgor, Symposium: The Ethics And Professionalism Of Prosecutors In Discretionary
Decisions , 68 F
ORDHAM L. REV . 1511 (2000); Robert Heller, Comment, Selective Prosecution And The
Federalization Of Criminal Law: The Need For Meani ngful Judicial Review Of Prosecutorial Discretion,
45 U.
PA. L. REV . 1309 (1997); William T. Pizzi, Understanding Prosecutorial Discretion in the United
States: The Limits of Comparative Criminal Procedure as an Instrument of Reform , 54 O
HIO ST. L.J. 1325
(1993); Wayne R. LaFave, The Prosecutor's Discretion in the United States , 18 A
M. J. COMP . LAW 532
(1970). For some empirical studies of prosecut orial discretion, see Lisa L. Miller and James
Eisenstein, The Federal/State Criminal Prosecution Nexus: A Case Study in Cooperation and Discretion ,
30 L
AW & SOC . INQUIRY 239 (2005); Joseph R. McCarthy, Implications Of County Variance In New Jersey
Capital Murder Cases: Arbitrary Decision-Making By County Prosecutors , 19 N.Y.L.
SCH . J. HUM . RTS.
969 (2003); Herman J. Hoying, A Positive First Step: The Joint Legisl ative Audit and Review Commission's
Review of Virginia's System of Capital Punishment , 14 C
AP . DEF. J. 349 (2002) (describing an empirical
study of the use of prosecutorial discretion in Capital Punishment cases in Virginia).
229 For a description of several stages of criminal pr oceedings where the prosecutor exercises discretion, see
Podor, supra note ___, at 1515-24. Prosecutors’ power is considerable at each of these stages. See
Bennett L. Gershman, The New Prosecutors, 53 U. P
ITT . L. REV . 393 (1992). The decisions to investigate,
charge, and prosecute all have consequences of taking time, causing considerable inconvenience, and
requiring financial resources, even if the person is innocent. These consequences are worsened when the
discretion is used in racially discriminatory way, which is sometimes the case. See P.S. Kane, Comment,
Why Have You Singled Me Ou t? The Use of Prosecutorial Discretion for Selective Prosecution , 67 T
UL . L.
REV . 2293 (1993). Ultimately, the exercise of prosecutorial discretion can play a role in whether a
criminal defendant is subject ed to the death penalty. See Hoying, supra note ___; McCarthy, supra note
___.
230 See Griffin, supra note ___, at 303-07 (suggesting that prosecutors should exercise “public moral
judgment”); Podgor, supra note ___, at 1530-35 (arguing for education of prosecutors as a way to
encourage proper use of discretion).
231 See supra note 172. 232 See P RISONER OF AZKABAN , supra note __, at 399. 233 Id . at 261.

Harry Potter and the Law
39
Dumbledore is engaged in training at least some of the students at Hogwarts to reach this
higher moral plane. He is quite awar e of Harry’s persistent rule-breaking, 234 and even
facilitates it by giving h im the invisibility cloak, 235 but seems to allow this
experimentation as part of Harry’s education. If Harry is caught, he has to suffer the
punishment,
236 but sometimes the risk or th e costs are worth the objective. 237 Hermione,
who starts out as prudishly committed to the rules, 238 gradually moves into this more
complex and ambiguous moral space. 239 The pairing of law a nd injustice allows the
readers and viewers, as individua ls, to explore this same space. 240

That is not to say that rules are irreleva nt or to be entirely ignored. Dumbledore
recognizes Longbottom’s attempt to prevent Ha rry, Ron and Hermione from breaking the
rules as very heroic and worth a rewa rd that earns Griffindor the House Cup.
241
(Dumbledore, of course, is also trying to build Longbottom’s stature with the other
students and his self-esteem, again showing his great wisdom). Similarly, there are
numerous instances where rule-bre aking is punished at the school,
242 and justifiable
instances of punishment in the wi zarding criminal justice system. 243 Thus, the rules are
234 For example, Dumbledore knew that Harry was visitin g the Mirror of Erised after curfew, and even met
him at the mirror in Harry’s third visit. See S
ORCERER ’S STONE , supra note __, at 212. Yet Dumbledore
did not object or impose any punishment.
235 See S ORCERER ’S STONE , supra note __, at 299. 236 For instance, Harry, Ron and Hermione were caught by Filch after getting rid of Norbert, Hagrid’s
dragon, in the middle of the night from the North Tower. Professor McGonagall gave them detention and
fined them fifty points each. See S
ORCERER ’S STONE , supra note __, at 242-44. 237 Although Harry, Ron and Hermione get detentions for being out in the middle of the night, the objective
was to protect Hagrid, a friend, from getting caught with a young dragon. This objective has some moral
value to it, and was considered to be at least worth the risk of getting caught, if not worth the price that they
ultimately paid.
238 Hermione reluctantly participates in the late-night outing to find out what is behind a mysterious door.
After a narrow escape from the three-headed dog, she comments, “I hope you’re pleased with yourselves.
We could all have been killed --- or even worse expelled.” See S
ORCERER ’S STONE , supra note __, at 162. 239 Hermione is the one who suggests Polyjuice Potion as a way to impersonate some Slytherins to get
access to their common room and find out if Malfoy rea lly is the Heir of Slytherin. While this is not
necessarily in direct violatio n of the rules, it requires that they contrive a way to get access to the Restricted
Section of the library. See C
HAMBER OF SECRETS , supra note __, at 159-60. By the fifth book, Hermione is
much more comfortable with rule-breaking. Although sh e tries to talk Harry out of going to the Ministry of
Magic to confront Voldemort in order to save Sirius Black, she suggests that they lure Umbridge out of her
office a second time to use her fire to try to confirm whether Sirius has left his home. Her hesitation about
going to the Ministry is not out of any concern for the ru les, but rather is out of concern for Harry’s safety.
See O
RDER OF THE PHOENIX , supra note __, at 731-37. Once that pl an goes awry, Hermione concocts a
story (that is, she lies to a teacher, a representative of the Ministry and the High Inquisitor, though none of
them trust or respect her) to lure Umbridge into the forest where she is taken by the Centaurs, allowing she
and Harry to escape. See id. at 748-56.
240 Lana Whited and Katherine Grimes make a similar point by suggesting that the Harry Potter narratives
allow children to explore Lawrence Kohlbe rg’s stages of moral development. See Lana A. Whited, with
M. Katherine Grimes, supra note 8.
241 “’There are all kinds of courage,’ said Dumbledore, sm iling. ‘It takes a great deal of bravery to stand up
to our enemies, but just as much to stand up to ou r friends. I therefore award ten points to Mr. Neville
Longbottom.’” S
ORCERER ’S STONE , supra note __, at 306. 242 See , e.g. , supra note ___ [was 181, about McGonagall giving them detention for Norbert] 243 The examples of justifiable criminal punishment are for those who were followers of Voldemort when
he was in power. For example, the Lestranges were sentenced to life imprisonment in Azkaban for

Harry Potter and the Law
40
generally to be followed, with an exception for instances where a higher moral
requirement provides some justification.

What we are left with, then, is system of ru les and laws that is rather porous, with many
instances of justifiable violations. While this is probably far from ideal for any society,
the point of the Harry Potter narratives isn’t really to create or describe social
arrangements. Instead, it is an opportunity fo r the youthful reader to have an imaginary
adventure in which he or she will, thr ough character surrogates, face many perils,
including moral dilemmas. Through the expl oration of these dilemmas, the characters,
and through them the readers, begin to understand the power and accountability of
individuals. While “rule of man” is not the ideal, these na rratives show that individual
choice can be used to temper the injustices th at are bound to exist in any legal system.

Making Legal Space for Moral Choice (Andrew P. Morriss)

Prof. Tyler Cowen, one of the leading voices on the economics of culture, suggests that
economists can add value by considering novels as models.
244 In the Harry Potter novels,
we have a good example of what Cowen terms a “calibration model.” 245 That is, Rowling
is not “play[ing] out the impli cations of . . . her underlying worldview. . . . [which reflects
her] understanding of society, psychology, a nd human behavior” as in a “novelistic
estimation”
246 but instead asking the reader to judge the validity of her underlying model
of human behavior when faced with the choice between good and evil.

Rowling attempts to provide an internally co nsistent world in which magic “works” much
as science “works” in our world.
247 The interesting question ab out such a world is not
“what would we do differently if magic worked ,” since magic does not work and will not
work regardless of the choices we make. As lawyers, I do not think we need concern
ourselves with the details of imported cau ldron regulation or even the due process
available in Wizangamot hearings. These are novels (and novels aimed primarily at
children). In such circumstances , in Judge Posner’s memorable phrase, “[a]rt trumps due
process.”
248 What is interesting is using the idea of functioning magic to address the
moral choices about our equivalent “magic,” since we must make choices about how to

torturing the Longbottoms, Neville’s parents, to the point of insanity. See O RDER OF THE PHOENIX , supra
note __, at 137; G
OBLET OF FIRE , supra note __, at 594-96, 602-03. 244 Tyler Cowen, Is a Novel a Model? (unpublished working paper, Department of Economics, George
Mason University, September 12, 2003) (copy on file with author) at 5 (“We can recognize that novels
stand on their own as works of art, while still wishing to focus on how novels fit into rational choice
categories. My account seeks to add
to the value of novels, rather than explain that entire value in
reductionist terms, or force all of that value into the boxes of rational choice social science.”) Cowen has
written widely on culture and economics and so is well-qualified, perhaps uniquely among economists, to
consider literary analysis. See T
YLER COWEN , CREATIVE DESTRUCTION : HOW GLOBALIZATION IS
CHANGING THE WORLD ’S CULTURES (2002) and T YLER COWEN , IN PRAISE OF COMMERCIAL CULTURE
(1998). 245 This point is more fully developed in Morriss, Calibrating Moral Choice, supra note 244. 246 Cowen, Model, supra note 244, at 14-15. 247 Alan Jacobs, Harry Potter’s Magic, 99 F IRST THINGS 35 (2000) available at
http://www.firstthings.com/ftissu es/ft0001/reviews/jacobs.html
(last visited August 9, 2005). 248 RICHARD A. POSNER , LAW AND LITERATURE 166 (REV . ED . 1998).

Harry Potter and the Law
41
use the enormous power technology grants us over the world. 249 We can evaluate the
choices characters make usi ng our introspective abilities 250 – and so can children,
Rowling’s primary intended readership. The te xt itself supports the characterization of
the stories as calibration. In a key passage in the second novel,
251 Harry questions Albus
Dumbledore about whether Harry belongs in Slyt herin House, as the Sorting Hat initially
suggested, rather than in Gryffindor. Dumbledore responds that the difference between
Harry and Voldemort is that Harry asked to not to be in Slytherin. “It is our choices,
Harry, that show what we truly are, far more than our abilities.”
252 Individual choice is
central to the moral dilemmas faced by the characters at many junctures. 253 The centrality
of individual moral choices at critical points in the novels provides the reader with the
opportunity to evaluate Ro wling’s claims about the nature of moral choice,
254 exactly the
function of a calibration model.

Creating a calibration model requ ires Rowling to make some choices about the society in
which Harry lives. Consider the Ministry of Magic, for example. Some legal commentary
is critical of Rowling’s portrayal of bureaucracy.
255 To some extent this may merely
reflect general social attit udes toward law and government. 256 Some is simply necessary
to advance the plot. For example, the remova l of Dumbledore and Hagrid from Hogwarts
just before the climax of Chamber of Secrets
257 is necessary to set up the final
249 See, e.g., Jacobs, supra note 247, (“The fundamental moral framework of the Harry Potter books, then,
is a familiar one to all of us: it is the problem of technology.”)
250 Cowen notes that many readers judge the plausibility of novels by using their introspection. If we believe that self-
deception is rife in human affairs . . . this test is not in every way a good one. We will tend to like
those novels that affirm what we think we al ready know, and reject novels that provide
disconfirming messages. Novels also can mislead when introspection provides no guide to truth.
It is easy to point to novelistic simulations (just about any novelistic utopia will do, from Thomas
More to Edward Bellamy) that are plain, flat-out wrong about how individual human behavior
translates into social outcomes. Readers are no netheless attracted by the emotional resonance of
the story. An introspective test may
be able to distinguish true and false propositions about human
behavior, but certainly it cannot judge factual claims about the world very well.
Cowen, Model, supra note 244, at 17.
251 I am reassured that this is in fact a key passage by the fact that Alan Jacobs also identified it as central.
See Jacobs, supra note 247.
252 J.K ROWLING , HARRY POTTER AND THE CHAMBER OF SECRETS 245 (1998). 253 Others have made a similar point. See Paul R. Joseph & Lynn E. Wolf, The Law in Harry Potter: A
System Not Even a Muggle Could Love , 34 U.
TOL . L. REV . 193, 194 (2003) (Harry Potter “books present a
classic tale of good versus evil and the maturation of the central hero, who must brave many dangers and
make fateful choices about who he is and who he wants to become.”)
254 See, e.g., Cowen, Model, supra note 244, at 17 (“a constructed story, by its nature, sheds light on the
author’s underlying worldview. The plausibility of the story allows us to ‘test’ the plausibility of the
author’s framework. . . . this use of fiction gives us insight into our abstract constructions behind the
fictions.”)
255 See, e.g., Joseph & Wolf, supra note 253, at 195 (“This unelected bu reaucracy [the Ministry of Magic]
is portrayed as heavy-handed, corrupt, and incompetent.”)
256 See, e.g., Lawrence M. Friedman, Law, Lawyers, and Popular Culture, 98 Y ALE L. J. 1579, 1592 (1989)
(“The trend toward suspicion of authority is of course another reflex of our special brand of individualism--
a form of consciousness which literally stresses the individual, and which is deeply distrustful of whatever
is large-scale, organized, governmental; not to mention what comes clothed in traditional trappings of
authority”).
257 ROWLING , CHAMBER OF SECRETS , supra note 252, at 195.

Harry Potter and the Law
42
confrontation between Harry and Tom Riddle in the Chamber. If either was on site, it
would be difficult to explain why Harry did not seek advice, at least, from one or the
other. Leaving Harry to his ow n resources (and those of Ron and Hermione, of course) is
critical to the plot – books in which Harry simply discovers Voldemort’s latest disguise
and reports it to Dumbledore would be rather uneventful.

Indeed a central feature of the climaxes of each of the Harry Potter books is that Harry is
left alone to face Voldemort and his allies . This, in itself, is not novel. Children’s
literature regularly features th e abandonment of children to th eir own devices in the face
of varying degrees of peril.
258 In the Potter books, Harry’s need to fight alone is essential
to the theme of moral choice. Harry is left to battle Voldemort, rather than rescued by
Dumbledore or other adults not because th e adults are inept (although some are) but
because Dumbledore trusts Harry to make the right choices.

In the Harry Potter stories, thus far anywa y, Harry and many others have made the right
choices. Dumbledore trusts many who others do not trust, including Hagrid, Prof. Lupin,
Sirius Black (after th e truth about his role in the deat h of Harry’s parents comes out),
Ron, Hermione, the Durmstrang students in Goblet of Fire even after their headmaster
has fled, and, most notably, Severus Snape. We are told repeatedly of such trust, and
Harry and others are asked to trust even peopl e they have every reason to fear and hate
such as Snape, based solely on Dumbledore’s confidence that the trusted individuals will
make the right choices.
259 Moreover, we rarely see Dumb ledore, the lynch-pin of the
defense of the world against Lord Voldemort, give others explicit instructions on how to
battle Voldemort. Dumbledore provides his alli es with information and assistance but he
does not spell out the details of how they are to fight Voldemort.
260

With this in mind, let us examine a pivotal scene from Goblet of Fire. Sirius Black, Prof.
Remus Lupin, Harry, Ron and Hermione have unraveled some of the book’s central plot
devices during their encounter in the Shri eking Shack in Hogsmeade. They have
unmasked Peter Pettigrew, who has been ma squerading as Ron’s pet rat Scabbers since
the beginning of the series. Black, who Harry has just learned is not a crazed killer
258 For example, C.S. Lewis's The Chr onicles of Narnia are "an adventure tale of self-sufficient children,
with their parents conspicuously absent." Mark Oppenheimer, What They're Reading at the Kitchen Table,
W.S.J. (Sept. 2, 2005) at W11. Similarly Lyria, the heroine of Philip Pullman's His Dark Materials Trilogy,
has been abandoned by her parents before the story begi ns; when she eventually encounters her parents, she
discovers that they are moral monsters. In a more popular vein, the Lemony Snicket books open with the
death of the hero's and heroines' parents, the destruction of their home and wealth, and their being turned
over to an evil relative by an incompetent guardian. There are countless other examples.
259 For example, Dumbledore repeatedly insists that Prof. Snape is trustworthy, despite the misgivings of
others. Whether Dumbledore was right to trust Snape is, after Half-Blood Prince, a hotly debated question.
As Dumbledore himself told Harry, “I make mistakes like the next man. In fact, being – forgive me – rather
clever than most men, my mistakes tend to be correspondingly huger.” J.
K. ROWLING , HARRY POTTER AND
THE
HALF -B LOOD PRINCE 197 (2005). 260 J. K. ROWLING , HARRY POTTER AND THE SORCERER ’S STONE 302 (1997) (“He’s a funny man,
Dumbledore. I think he sort of wanted to give me a chance. I think he knows more or less everything that
goes on here, you know. I reckon he had a pretty good idea we were going to try, and instead of stopping
us, he just taught us enough to help. I don’t think it was an accident he let me find out how the mirror
worked. It’s almost like he thought I had the ri ght to face Voldemort if I could . . . .”).

Harry Potter and the Law
43
responsible for the deaths of Harry’s parents, confronts Pettigrew, who we also just
learned is the person responsible for James and L illy Potter’s deaths, with his treachery
and Pettigrew responds “‘Sirius , Sirius, what could I have done? The Dark Lord . . . you
have no idea . . . he has weapons you can’t imag ine . . . . I was scared, Sirius, I was never
brave like you and Remus and James. I never meant it to happen . . . . He-Who-Must-
Not-Be-Named forced me –‘” Black reject s Pettigrew’s excuses, “bellowing” that
Pettigrew had gone over to Voldemort long before and been spying for him. Pettigrew
responds “‘He – he was taking over everywhere!’ . . . ‘Wh – what was there to be gained
by refusing him?’” Black then makes the crucial moral point:
‘What was there to be gained by righting the most evil wizard who has
ever existed?’ said Black, with a terrible fury in his face. ‘Only innocent lives,
Peter!’
‘You don’t understand!’ whined Pettig rew. ‘He would have killed me,
Sirius!’
‘THEN YOU SHOULD HAVE DIED!’ roared Black. ‘DIED RATHER
THAN BETRAY YOUR FRIENDS, AS WE WOULD HAVE DONE FOR
YOU!’”
261

This scene captures how the novels offer a chance for moral calibration. What would the
reader do if in Pettigrew’s situation? Blac k, and by implication Lupin and the Potters,
would have chosen death at Voldemort’s hands rather than betraying friends and
cooperating with evil. Pettigrew chose differen tly. Thus far, however, the scene is not
particularly noteworthy among ch ildren’s or adult literature. Faced with a choice between
“the most evil wizard who ever lived” a nd one’s friends, most readers will, I hope,
conclude that Pettigrew made the wrong choi ce. And Pettigrew’s animagus form as a rat
seems particularly apt given his bad choices . With this clear a choice and signal about
Pettigrew’s character, however, we haven’t learned much.
262

The key is what happens next. Black and Lupin are prepared to kill Pettigrew to avenge
Harry’s parents. “‘You should have realized,’ said Lupin quietly, ‘if Voldemort didn’t
kill you, we would.’”
263 Hermione, rarely at a loss for words, turns her face away but
does nothing to attempt to stop the killing, seemingly accepting that Lupin and Black are
right to kill Pettigrew. But Harry intervenes and he stops the killing by placing himself
between Pettigrew and Black and Lupin.
264 Why? Not for Pettigrew, who Harry tells
“I’m not doing this for you.” Harry does it “because – I don’t reckon my dad would have
wanted them [Black and Lupin] to become killers – just for you.”
265

Harry’s choice is extraordinary. Who could blam e him if he wanted Pettigrew’s death, as
he had wanted Black’s a few moments before when he believed Black had killed his
261 J. K. ROWLING , HARRY POTTER AND THE PRISONER OF AZKABAN 376 (199). 262 As Posner notes in his commentary on The Brothers Karamazov, unless evil is given its “due,” i.e.
allowed to appear attractive in some respects, the case for good is unconvincing. P
OSNER , LAW AND
LITERATURE , supra note 248, at 178. 263 ROWLING , PRISONER , supra note 261, at 376. 264 ROWLING , PRISONER , supra note 261, at 374-375. 265 ROWLING , PRISONER , supra note 261, at 376.

Harry Potter and the Law
44
parents? 266 Not only had Pettigrew denied Harry his family, the thing he desires most, but
Pettigrew condemned Harry to a miserable child hood with the Dursleys. At this pivotal
moment, Harry chooses law over vengeance – “He can go to Azkaban . . . but don’t kill
him.”
267

Harry doesn’t choose law because he’s internal ized the value of due process. He doesn’t
suggest that Pettigrew deserves a lawyer or is presumed innocent. He doesn’t even
choose a trial over vengeance. Pettigrew will go to Azkaban if he is taken back to
Hogwarts and turned over to Dumbledore, a te rrible fate for the guilty, and we have no
reason to believe that Pettigrew’s trial will have any more procedural safeguards than did
those Harry saw in the Pensieve. (It doesn’t really matter whether Pettigrew’s trial would,
since he’s confessed and the only issue is the appropriate punishment.) Harry doesn’t
choose law out of mercy either, saying “if a nyone deserves [Azkaban], he [Pettigrew]
does . . .”
268 Harry chooses law over vengeance because he does not want his parents’

friends to act immorally to avenge his parent s. This is a mature choice, one that many
adults would be hard pressed to make. It is al so a critical choice, since “law grows out of
revenge.”
269 Rowling’s readers are invited to compare their own reaction to Harry’s and
test themselves against his choice. Black and Lupin question Harry about his choice,
making a good case for vigilante ju stice, but Harry remains firm.
270

To make this scene work as a calibration, seve ral things are necessary. First, Harry must
end up in the Shrieking Shack with, at a mini mum, Pettigrew and Sirius, so that he can
make the choice.
271 Second, adult authorities cannot burst upon the scene and take
Pettigrew away. Third, it must be a real choice : Black and Lupin must be able to actually
kill Pettigrew. All of these elements in turn require that the Ministry of Magic be unable
to capture Black, despite months of its massive manhunt; that Black have been previously
wrongfully convicted of the Pott ers’ deaths; that Black and Lupin be willing to violate the
law and kill Pettigrew themselves; that Harry violate school rules and go to the Shrieking
Shack; as well as number of other plot deta ils. Allowing Harry the space to make his
choice at the climax thus dictates a number of elements of the novel, including crucial
legal details (which reinfor ces the need to be cautious about putting weight on those
details in a legal analysis of the books.)

Confirming the centrality of the Shrieki ng Shack scene to the novel, Harry and
Dumbledore discuss Harry’s choice at the novel’s end. Seeing that Harry is unhappy,
Dumbledore asks him why, noting “’You should be very proud of yourself after last
266 ROWLING , PRISONER , supra note 261, at 213 (When, early in The Prisoner of Azkaban, Harry learns
what he believes is the truth about Sirius Black, that Black betrayed and killed Harry’s parents, he develops
an intense hatred for Black, which Rowling describes as follows: “[a] hatred such as he had never known
before was coursing through Harry like poison.”).
267 ROWLING , PRISONER , supra note 261, at 375. 268 ROWLING , PRISONER , supra note 261, at 376. 269 POSNER , LAW AND LITERATURE , supra note 248, at 49. 270 ROWLING , PRISONER , supra note 261, at 376-377. 271 Getting Sirius there and providing credible support for his story brings Lupin into the scene; Ron and
Hermione accompanying Harry enables Rowling to place Pettigrew on the scene. The Scabbers-
Crookshanks conflict provides a humorous and playful means of foreshadowing Scabbers’ dual nature.

Harry Potter and the Law
45
night.’” Harry responds “bitterly” that “It didn’t make any difference,” because
“Pettigrew got away.” Dumbledore rejects this: “‘Didn’t make any difference?’ said
Dumbledore quietly. ‘It made all the differen ce in the world, Harry. You helped uncover
the truth. You saved an innocent man [Black] from a terrible fate.’”
272

The key point here is that the result of structuring the plot to bring Harry to the climactic
moral choice is to create a society in which the state is largely absent. The Ministry of
Magic regulates cauldron bottoms, organize s wizard tournaments, and is run by the
bumbling and officious Cornelius Fudge. It doe s not catch, or even seem to slow down,
Lord Voldemort’s many attempts to return to power. Indeed, it does not seem to perform
any functions critical to everyday life.
273

More importantly, the state is not even an esse ntial ally in the battle against evil. At the
end of Azkaban , Dumbledore calls upon Fudge, who has been refusing to accept the idea
that Voldemort has returned, to act agains t the Dark Lord. Fudge is shocked by the
request that he authorize a mi ssion to recruit the giants to the fight, which he sees as a
threat to his career.
274 In a passage that could easily ha ve been written by a public choice
theorist, 275 Dumbledore rebukes Fudge.
‘You are blinded,’ said Dumbledore, his voice rising now, the aura of
power around him palpable, his eyes blazing once more, ‘by the love of the office
you hold, Cornelius! You place too much im portance, and you always have done,
on the so-called purity of blood! You fail to recognize that it matters not what
someone is born, but what they grow to be ! Your dementor has just destroyed the
last remaining member of a pure-blood fam ily as old as any – and see what that
man chose to make of his life! I tell you now – take th e steps I have suggested,
and you will be remembered, in office or out, as one of the bravest and greatest
Ministers of Magic we have ever known. Fail to act – and history will remember
you as the man who stepped aside and a llowed Voldemort a second chance to
destroy the world we have tried to rebuild!’”
276

Fudge is clearly not up to the task Dumbledor e sets for him; indeed Fudge counters with
a vague threat to assert authority over the sc hool if Dumbledore “is going to work against
me –.” Dumbledore replies “The only one agai nst whom I intend to work . . . is Lord
272 ROWLING , PRISONER , supra note 261, at 425. 273 The money supply is a precious metals-based one; the prison has been privatized to the dementors;
Hogwarts is effectively a charter school run by Dumbledore and a board; and so forth. See Morriss, Why
Classical Liberals Should Love Harry Potter, supra note Error! Bookmark not defined. .
274 J.K. ROWLING , HARRY POTTER AND THE GOBLET OF FIRE 708 (2000) (“’You – you cannot be serious!’
Fudge gasped, shaking his head and retreating further from Dumbledore. ‘If the magical community got
wind that I approached the giants – people hate them, Dumbledore – end of my career –‘” ).
275 The ideas could have been communicated by a public choice theorist. Other than Russell Roberts,
however, I do not know of any public choice theorists with the literary talent to write at Rowling’s level.
See R
USSELL ROBERTS , THE INVISIBLE HEART : AN ECONOMIC ROMANCE (2002) ; Andrew P. Morriss,
Families and Economics: Tying the tw o together in fiction and nonfiction, B
OOKS & CULTURE
(January/February 2005) (available at http://www.christianitytoday.com/bc/2005/001/12.26.html
(last
visited August 9, 2005)) (reviewing Roberts) .
276 ROWLING , GOBLET OF FIRE , supra note 274, at 708.

Harry Potter and the Law
46
Voldemort. If you are against him, then we remain, Cornelius, on the same side.’” 277
Note that Dumbledore does not seek to have Fudge replaced or appear to believe Fudge’s
official assistance is critical to the fight – he merely asks Fudge to choose sides.

Finally, consider the concluding a ssessment of Harry’s choice in Azkaban. Harry feels he
has made the wrong choice because Pettigre w escaped. But Dumbledore corrects him –
Harry’s choice “made all the difference in the world” because he saved one innocent man
from the Dementor’s Kiss, “a terrible fate.” Thus even though Voldemort’s ally is free,
which has terrible consequences in Goblet of Fire, Dumbledore weighs Harry’s actions
and concludes that they are prai seworthy for saving a single life.
278 There is no utilitarian
calculus here, simply an unadorned moral c hoice focused on the individual making the
choice.

A world which allows moral calibration is a world in which individuals are free. They are
not able to rely on the state or grownups to solve their moral dilemmas for them nor can
they put problems off on othe rs. One crucial thing readers can thus learn from the Harry
Potter books is that moral choices require liberty.

Harry Potter and Dick Whittington: Simila rities and Divergences (Timothy S. Hall)

Harry Potter and Dick Whittington, although se parated in time by nearly 400 years,
279
display remarkable similarities in form. 280 However, a closer reading of the stories
reveals different social and worldviews underlying each of the stories. This essay will
first explore the formal similarities between the two stories before exploring their
underlying differences.

Both stories are in the subgenr e of children’s literature consis ting of orphan stories- also
called “rags to riches” stories. Harry is orphaned when his loving parents are killed by
the evil Lord Voldemort,
281 while we are simply told that Dick’s parents died when he
was very young. 282 Harry is raised by his mother’s si ster and her family, the Dursleys, an
aggressively non-magical family who persecu te Harry for his perceived identification,
277 ROWLING , GOBLET OF FIRE , supra note 274, at 709. 278 Dumbledore does hedge a bit, noting that Harry’s mercy toward Pettigrew “create[d] a bond between”
the two, for which “the time may come when you will be very glad you saved Pettigrew’s life.” R
OWLING ,
PRISONER , supra note 261, at 427. 279 The Dick Whittington story was first recorded in 1604; the first Harry Potter novel was published in
1998.
280 Cite to Steve Alton contribution to the symposium volume.

281 Harry Potter and the Sorcerer’s Stone at 12-13
282 Dick Whittington at 11. Although the Dick Whittington children’s story diverges in major respects with
what is known of the actual life of Richard Whittington, including but not limited to whether Whittington
ever in fact actually owned a cat [cite to Stephen Johansen’s essay if included in volume], this essay takes
as its text the children’s story rather than the historical figure. [I am using as a text the version of the
Whittington story printed in the program to the conference – and those page numbers, which are obviously
not original. If there is a version of the story being used by other conference participants, then this can be
modified to standardize on one version].

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47
even as an infant, with the magical world. 283 Dick is raised by a “poor old woman” until
her death, 284 when he sets off for London and is taken in by the merchant Fitzwarren.
There, he is persecuted by the Fitzwarren’s cook, 285 but treated kindly by Fitzwarren and
his daughter. Because Dick’s rooms are “infested with rats and mice” 286 due to the
malice of the cook, he purchases a cat to kill th e mice. In addition to the cat’s usefulness
at mousing, she is also Dick’s companion unt il Dick is forced to send her as goods on a
merchant ship owned by Fitzwarren.

Upon reaching the age of eleven, Harry is given a place at Hogwarts School of
Witchcraft, where he forms the relationships that will create the core of the stories.
Dick’s fortune arrives when the merchant ship returns to England, the captain having sold
the cat’s offspring in “a wealthy kingdom of Africa” as a valuable rarity. Dick’s
newfound wealth is hailed as “a just reward granted by Heaven for his patience under
hard trials, and for hi s good conduct and industry.”
287

In both Harry Potter and Dick Whittington, as in the paradigmatic orphan rags to riches
story, the orphans grow up to be we althy leaders of their societies.
288 In both stories,
this power and leadership comes at a high cost . In both cases, this cost involves the loss
of an important relationship (H arry - parents; Dick - pet) in childhood. The loss of this
relationship provides the impetus for the meteoric rise to fortune that follows. The rarity
of Dick’s cat leads to its va lue as a trading good; and the de ath of Harry’s parents at the
hands of Voldemort gives Harry special power s not enjoyed by his peers (and sometimes
his teachers) at Hogwarts. Thus , at first glance, Harry Potter seems to be a retelling of
the classic orphan story, updated for an audien ce four centuries past Whittington’s time.

Rags to riches stories are sometimes known coll oquially as “Horatio Alger” stories, after
the popular 19
th century American author of such tales. 289 The success of Alger‘s tales
283 Harry is made to live in the closet under the stairs, and given only the hand-me-downs from the
Dursley’s biological son, Dudley. Does this foreshadow the house-elf story – Harry is given his freedom
from the Dursleys when Hagrid helps him purchase, among other things, a set of wizard’s robes in
preparation for his life at Hogwarts. Sorcerer’s Stone at 76-79.
284 Dick Whittington at 11. Dick is thus twice orphaned before the age of majority.
285 Id.
286 DW at 11.
287 DW at 13. 288 The exact nature of Harry’s post-Hogwarts adult life has, of course, not yet been revealed, however, if
the story arc of the seventh book follows the classic children’s/fantasy form, he will vanquish the evil
Voldemort in the final book. I think it is safe to say, even with the story incomplete, that Harry has already
achieved notoriety and a leadership role within his world – he is recognized by strangers in pubs
(Sorcerer’s Stone at 69), and the Mini stry of Magic has sought his endorsement as a way to raise morale in
the wizarding world (Half-B lood Prince at 344-347).
289 Steven L. Winter, The Cognitive Dimension Of The Agony Between Legal Power And Narrative
Meaning, 87 Michigan L. Rev. 2225, 2268 (“Once an extensive oeuvre of over forty very specific novels
and short stories written by the nineteenth-century auth or Horatio Alger, the concept of an "Horatio Alger
story" has become a schematized "rags to riches" folk model …”) (footnotes omitted). In another law and
literature link, Alger was the private tutor of a young Benjamin Cardozo, helping him prepare for the
rigorous entrance exam to Columbia University. Andrew L. Kaufman, Cardozo at 25-26 (1998).

Harry Potter and the Law
48
shows both the enduring popularity of the orphan story, 290 and is also reflective of the
social Darwinism of the 19 th century. 291 Horatio Alger heroes universally achieve success
through hard work and industry. 292 The Dick Whittington tale closely resembles an Alger
story. The most salient difference is undoubtedly the source of Dick’s wealth, which is at
one point described as a “speculation.”
293 However, the role of chance in Dick’s success
is downplayed when his eventual fortune is described as “a just reward granted by
Heaven for his patience under hard trials, and for his good conduct and industry.” The
story seems to take pains to link hard work and fortune, and to make clear that Dick’s
wealth is self-made, and not the result of me re capricious fate. In this, Whittington’s
wealth is reconciled with the 19
th century social Darwinist ethos. 294 In numerous other
places in the story, Dick’s hard work and industry are repeatedly emphasized. First,
when Dick tires walking to London, he asks for a ride on a passing cart “until he was
sufficiently rested to allow him to walk agai n.” The emphasis is clear that Dick did not
ask to be entirely relieved from the task of walking to London, and that his success is not
due to the charity of the passing driver. Si milarly, we are told that Fitzwarren and his
daughter “agreed Dick should remain in the hou se if he would make himself useful.”
Again, pains are taken here to avoid the impli cation of welfare. Finally, for purposes of
illustration, Dick wins the admiration of, and eventually marriage to, Fitzwarren’s
daughter for his “modesty … his correct conduct, his respectful demeanor and his love of
truth.” With this emphasis on individualit y, hard work and just rewards, the Dick
Whittington story can be seen as a forerunner of the 19
th century capitalist fairy tales of
Alger and others.

In contrast to the social Darwinism of the Dick Whittington/ Horatio Alger story, the
Harry Potter stories are primarily about the community that Harry surrounds himself with
at Hogwarts. Even when Harry feels most alone, his protection and salvation come from
his relationships with his mentor, his friends , his deceased parents, and even his Muggle
family.
295 There are many instances which show the interdependence of the three central
290 Perry Nodelman, The Pleasures of Children’s Litera ture 91 (1992) (“[t]he main characters in many
children’s stories and novels are orphans.”) Alger was certainly aware of the Dick Whittington story, and
even incorporated it into one of his works. See Horatio Alger, Ragged Dick at ___.
291 Richard Hofstadter, Social Darwinism in American Thought (1944). 292 Stuart Biegel, Reassessing The Applicability Of Fundamental Rights Analysis: The Fourteenth
Amendment And The Shaping Of Educational Policy After Kadrmas V.
Dickinson Public Schools, 74 Cornell L. Rev. 1078 (1989) (describing the "The Horatio Alger Dream" as
“an optimistic vision of a land where limitless opportunities and great personal happiness await those who
diligently embrace the traditio nal work ethic,” and noting that “Horatio Alger's highly popular nineteenth-
century novels all embody a similar story line.”)
293 DW at 12. The phrase “try his luck” is also used, reinforcing the idea of chance at work. 294 Lisa C. Ikemoto, Traces Of The Master Narrative In The Story Of African American/Korean American
Conflict: How We Constructed "Los Angeles", 66 S.Cal.L.Rev. 1581, 1587 n.26 (“Horatio Alger rags-to-
riches stories … echoed the prevailing theory of Social Darwinism which, in simplistic terms, assumed as
truth an American industrial merito cracy and asserted that the wealthy industrialists deserved their success
and the poor deserved their fate.”)
295 In fact, Voldemort is the individualist in the HP st ories. His relationships are based on utilitarianism,
not on love. His goals are self-directed, rather than ot her-directed. Rowling consistently contrasts the self-
interest of Lord Voldemort against the communitarian spirit and strength of Harry and his friends, teachers
and colleagues.

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49
characters, as well as others, in the HP stories. 296 A complete catalog of these is
prohibited by space limitations, but a few examples will suffice.

In the first novel, Harry Potter and the Sorcer er’s Stone, we are told that Voldemort could
not kill Harry at birth, and that he is still protected today from the weakened Voldemort,
because of the power of his mother’s love fo r him, rather than any innate qualities Harry
himself may possess.
297

In the second novel, Harry Potter and the Cham ber of Secrets, Harry’s relationship with
and loyalty to Dumbledore bri ng the phoenix Fawkes to him in the climactic battle under
the sewers, saving him from the basilisk’s bite and enabling him to again defeat
Voldemort and his assistant.
298

In Harry Potter and the Goblet of Fire, Ha rry departs from his assigned task in the
Triwizard Tournament to save his competitor Fleur from a perceived threat.
299 He is
criticized by the “official” judge s, but clearly the reader is not meant to take this criticism
seriously, and this is meant to demonstrate hi s loyalty to his fellow students, even at the
expense of his own advancement in the games.

In Harry Potter and the Order of the Phoenix, we are told that Harry is protected so long
as he is at the Dursley’s home. Even th is attenuated relationship adds strength to
Harry.
300

Finally, in the most recent Potter novel as of this writing, Harry Potter and the Half-
Blood Prince, Voldemort sets a trap that neither Harry nor Dumbledore could bypass
alone; however, they succeed together.
301 Dumbledore tells Harry – “I am not worried; I
am with you.” 302

The HP stories are more communitarian, desp ite the surface similarities, than the prior
“orphan stories” of Dick Whittington and Horatio Alger.
303 What does all this tell us (if
anything) about commercial custom and law in society? In a more interdependent,
globalised society, Rowling has given us a mo re interdependent, community- reliant hero.

296 At the very least, it is clear that Harry coul d not succeed academically at Hogwarts without the
assistance and skills of Hermione Granger.
297 Sorcerer’s Stone at 299. 298 Chamber of Secrets at 315-322. 299 Goblet of Fire at 499-503. 300 Order of the Phoenix at 40-41; 835-36.568-577 301 Half-Blood Prince, at568-577. 302 Half-Blood Prince, at 578. 303 To the extent that Professor Edward Phillips of Green wich is correct in his comment yesterday that the
DW story represents an earlier, “good capitalist” vers ion of the orphan story, rather than the later “bad
capitalist” 19
th century literature, then this may represent a return to this sense of community, and the
progression from Dick Whittington to Harry Potter may be more one of return to roots rather than departure
from norms.
X