There are many forms of authority. Those exercised in the books include legal, parental, and moral authority. The use of authority relies first on the acknowledgement by both parties to the authority and the way in which it will be used. All authority is dynamic, in that the level of power between any two people or entities is constantly changing, depending on the individual circumstances acting upon a given situation. Different types of authority will clash, as there are wide layers of overlap between them.
There appears to be two main sources of legal authority in the Wizarding World: the Legislative and the Courts.1 We have seen little of the Legislative other than Ministry of Magic and its head, the Minister of Magic. From the interaction between the Prime Minister, Cornelius Fudge, and Rufus Scrimgeour,2 it is apparent that no one in the House of Commons3 is aware of the Ministry’s existence. This begs the question of who appoints the Minister of Magic. There must be some legislative equivalent to the House of Commons in the Wizarding World, but so far we have not been exposed to it.
The Ministry of Magic appears to operate like other Ministries inside the United Kingdom’s governmental apparatus. The benefits of the Ministry have been shown; keeping the practice of magic safe and out of the notice of Muggles;4 licensing the use of Apparition;5 and yes, even keeping people safe from cauldrons with inadequate bottom thicknesses.6 We also see the down-side of such bureaucracies; from the small indignations Arthur Weasley faces,7 to the trouble Harry gets into because of Dobby,8 to the horrible injustice and slander done to Harry by Dolores Umbridge.9
The Ministry is broken up into Departments that handle various aspects of the Ministry’s duties. The Departments may have smaller divisions within them. Offices, Committees, Squads, and Divisions all seem to exist within Departments. They may denote rank of subdivision, but it is not at all clear from the literature.
We have seen less of the courts. Though the scenes we have witnessed are usually politically charged, there is a danger that the sample we have seen is not representative of the normal functioning of the courts. However, we can surmise some broad generalizations given what we have read.
The Supreme Court of the Wizarding World is the Wizengamot and is governed by the Wizengamot Charter of Rights.10 This would make it appear to be independent of the Ministry of Magic, though the Ministry would prosecute any lawbreakers. It is unclear if there are lower courts in the Wizarding World; there may be lower courts and there may simply be instances when one of the Wizengamot is all that is needed to render judgment in a matter.
We also have not seen any civil actions brought before the Wizengamot; all the cases of which we have read are criminal prosecutions.11 It would appear likely that the Wizengamot also hold sway over civil matters, though they appear to be more a libertarian society regarding the interactions between wizards and witches. They are, however, willing to leave much leeway to wizards called before them on a criminal matter.
We see parental authority exercised both well and poorly. The Dursleys exercise poor parental authority over both Dudley and Harry. Dudley is never held responsible for anything he does. Any issue with other authorities, such as teachers or doctors, is discounted in front of Dudley. As a result, Dudley has learned that as long as his parents have control over a situation, his wishes will not be thwarted. Harry, on the other hand, is subject to the random and harsh rule-making of the Dursleys.
Until he is eleven and goes to Hogwarts, Harry is the Dursleys’ slave. He obviously objects to such treatment, but there is nothing he can do other than fight a war of small victories. Once he goes to Hogwarts, begins to learn magic, and makes friends outside of the Dursleys’ influence, he can fight more strongly against the injustices to which he feels the Dursleys subject him. Once he gains his majority, he will be free from the authority of the Dursleys.
The Malfoy family is much like the Dursleys. Draco is raised much like Dudley for his first few years at Hogwarts and both mothers dote on their sons. Their fathers are different. While Vernon encourages Dudley to indulge his whims, Lucius is much more negative, although he does seem to indulge his son. However, once Lucius is arrested at the Ministry,12 Lord Voldemort becomes Draco’s father-figure. Draco is now under pressure to perform and Lord Voldemort is not as forgiving as his father.
The Weasley family, on the other hand, is run more fairly and more lovingly. Children are favored, but only in small measure, and for their good work. Arthur and Molly Weasley can be strict in some cases, but rarely need to be for important issues. Raised with love and affection, the Weasley children have turned out well.
Moral authority would seem to be the weakest form of authority, as it has no real means of enforcing punishment for violations. In both our world and in the Wizarding World, temporal matters have been the purview of the legal authority. Moral issues are not subject to legal authority and are not governed by any visible figure in the Wizarding World. There are religious leaders and politicians who would act as moral authorities in our world but the Wizarding World seems particularly agnostic.
As a result, there is no central figure to declare a strict morality to which one must adhere. This serves to fragment morality from a group ideal into a more personal standard. Wizards are responsible for their actions, and to a lesser extent, their inactions.
Moral authority has the odd effect of being most powerful to those least likely to defy it and weakest to those most likely to act immorally. Lord Voldemort rules through fear and intimidation; Dumbledore was able to raise an army without even knowing he did so. Dumbledore was respected and admired for his moral strength as well as his magical prowess.
The legal code of the Wizarding World has several facets: documents that delineate the basic framework upon which the society works, regular laws, passed by a legislative body or the Ministry which flesh out that framework and administrative rules that pertain to societal details. Overarching this system are the unwritten, but generally accepted, societal laws.
Basic Laws and Concepts
There does not appear to be a central document codifying the Wizarding World’s fundamental concepts of law. Rather like the Muggle United Kingdom, the Wizarding World appears to have several major treaties and laws that act as an informal framework.
The Wizengamot Charter of Rights is likely a large pillar in this foundation of laws. While it clearly acts as a procedural guide to Wizengamot activities it would make sense that, in laying out the actions for which a trial may be brought, the basic rights of a wizard are laid out as well. This is an important first step as it must set out the fundamental rights of a wizard and number those that are unassailable by the governing bodies.
The International Statute of Wizarding Secrecy is the other major contributor to the foundation of laws. The Statute sets limitations on the ability of a wizard to operate in public. Once the wizard knows his rights, his responsibility to society is the flip side of the equation. The Charter lets a wizard know what he can do and what the State cannot. The Statute lets a wizard know what the State must do and what he cannot.
It appears that the Wizarding World has a very libertarian foundation. This makes sense, as fully trained wizards are able to take care of themselves very ably. There is no need to protect poorer wizards, as fully trained wizards are expected to succeed on their own. However, there are class distinctions in the Wizarding World, and less feeling at the Ministry of Magic for those wizards of the lower classes.13
Befitting the libertarian bent of the fundamental laws, there are not many Wizarding laws to which the reader is exposed. As mentioned previously, there is no mention of a permanent legislative body in the Wizarding World; it is possible that laws are passed only on an open democratic vote or by special committee. Presumably, there are laws making the use of the Unforgivable Curses illegal. There are also the various treaties with other parts of the Wizarding World and with magical beings. There are surely other laws governing the use of magic, especially those clarifying the fundamental law described above. There must be a law creating the Ministry itself.
It is here that we see much of the law as it applies in Harry Potter and in our lives. Administrative agencies are created with the express purpose of creating a layer of law at a very granular level. These rules apply to those of us regulated by the Ministry every day. We must think of wizards as a specifically regulated group, like banks, drug companies, public corporations, and slaughterhouses. It is odd that the Ministry affects every wizard who knows of its existence, yet it also has a real duty to the entire United Kingdom, hence the visit to the Muggle Prime Minister.
The creation of rules can be very haphazard; there is usually a detailed law describing how the rules are to be made. It is unclear that the Wizarding World ever passed legislation requiring open discussion and comment periods before the rule making process could be complete, such as now exist in many countries. It appears from the literature that the Ministry retains a good deal of its executive authority, especially in times of crisis.14
The advantage of rule making over legislation is the ability to change quickly and adapt to changes in the world. Without the requirement for debate, the Ministry can move with the speed of an executive body. Because of this, there is the potential for abuse so the rules are limited in their scope. Rules cannot usually expand the power of the Ministry, they can only seek to define the laws that it regulates. Ministries often dance the fine line between the two; it is natural for a bureaucracy to try to expand into the widest possible definition of its purview. We see in Harry Potter and the Order of the Phoenix how the Ministry uses its powers of rulemaking, influence, and intimidation.15
The Ministry also serves as its own enforcement group. The Department of Magical Law Enforcement includes the Improper Use of Magic Office, the Magical Law Enforcement Squad, the Auror Office, and the Misuse of Muggle Artifacts Office. Each of these groups serves to enforce the Ministry’s rules and bring offenders to answer for their infractions. It is unclear whether they also are responsible for conducting the administrative court that hears the Ministry’s case and the offender’s defense. That may be the responsibility of the Minister’s office itself.
The Ministry does provide many useful functions as they regulate and enforce the use of Magic in the United Kingdom. They seem to do a relatively good job of it under normal circumstances. However, we have seen this enforcement under political stress, with Harry’s run-ins with the Ministry over Dobby, Aunt Marge, and the Dementor attack. In the first instance, he received an order from the Ministry and was subject to the administrative courts. In the second, Fudge said he knew all about the incident, but was doing nothing about it. In the final circumstance, the Ministry decided to forgo its own administrative court for a criminal prosecution before the Wizengamot. Here we see all of the options open to the Ministry for enforcement of its rules. Typically, any ruling by the Ministry administrative courts would be subject to review by a higher court, presumably the Wizengamot.
Rules at Hogwarts
In our reading, we frequently see characters breaking the rules of Hogwarts. Students out of bed at night, students using magic where they are not allowed, students using spells they are not supposed to know or use, students in parts of the castle/forest/town when they are not supposed to be there. Does this mean Ms. Rowling is encouraging anarchy?
Far from it; she is writing a story about boys and girls at a boarding school. While the school must have rules to enforce some discipline, Hogwarts seems to encourage tacitly some level of rule breaking. This is largely due to the Headmaster for most of the last six books: Albus Dumbledore does not strike one as the type to obey unthinkingly any rule, nor does he appear to want his students to be rule-bound, either. As wizards, they have great power available to them. They must learn to think about the power they wield, or they may end up hurting someone because they did not stop to think.
Dumbledore seems particularly glad that Harry found out about Nicholas Flamel when he retrieved the Philosopher’s Stone.16 Harry should not have even opened the door to the third floor corridor, never mind figured out what Fluffy and the enchantments protected! Dumbledore was proud because Harry had thought his way through all of the tests with his friends and relieved that he survived.
Dumbledore is occasionally accused of being lax about students’ lives, frequently creating situations that could prove deadly. I believe his hope is to allow the children to experience threatening situations under somewhat controlled situations so that when they are threatened later on in life, they have a better chance of survival. Dumbledore is not a big believer in shielding children from the truth. Yes, students will get hurt more often – Harry might have killed Draco with Sectumsempra had Snape not been right there to heal him17 - but Dumbledore would clearly rather deal with students with broken bones and wounds than dead ex-students that were not prepared for the world they faced.
Justice under the Law
Justice is a theoretical concept, as opposed to law and authority, which are much more substantive concepts. Law is subject to interpretation at the boundaries, but it defines large areas of activity as within or outside the ambit of the law. Justice is not a fixed ideal, but a personal feeling. A just result for one may not be justice for another. For instance: if a person is convicted for murdering two people, and one family wants the death penalty, but the other refuses to be party to another killing, to whom is justice served?
The intent of any just law is justice, yet the law is unyielding. It is possible to achieve an unjust result from a just law and vice versa. The law must be applied to everyone or justice will be perverted. For every Merope Gaunt, there is a Lucius Malfoy. Merope most likely broke several laws in her capture of Tom Riddle, Sr. To let her go free would allow someone with connections like Lucius to make a specious argument to free himself as well. The only answer is to apply the law as it is. I am not comparing the two crimes, nor saying that they would have gotten the same treatment from the Wizengamot. Merope is clearly a tragic figure and Lucius has not done anything to endear him to the reader.
Equity is much more interested in providing a just answer to a situation. The United Kingdom court of equity was developed from the Lord Chancellor’s jurisdiction to determine cases for the King, according to equity or fairness, rather than according to the strict letter of the law. The purpose of the court is to provide a remedy where the law fails to provide one.
The Role of the Wizengamot
The Wizengamot appears to be a modern combined court, offering damages and specific relief. This causes some problems for the Wizengamot, as the courts of law and equity were not combined in the Muggle World until 1873 in the United Kingdom. As davidenglish points out in his excellent Scribbulus essay,18 the Wizarding World largely separated from the Muggle World in 1692.
Most people do not realize it, but the English court system has two courts to which a person may bring an action.19 The first is the courts of law. Here, a person may sue under the law for relief, as provided for by that law. The law courts are restricted as to what remedy they may offer a successful complainant. Usually, reparations are only in monetary awards for the damage caused by the respondent. The law may govern the nature and amount of the award as well. Criminal courts are also courts of law and would be included under this designation.20
The courts of equity, on the other hand, provide only specific remedies for the plaintiff against the defendant. In our world, temporary or permanent injunctions against an ex-spouse are an example of a ruling in a court of equity.21
There are special rules for dealing with courts of equity. There is no jury; only the judge may hear a case in equity. There is also a concept called the clean hands doctrine in equity claims. This doctrine bars claims in equity for plaintiffs that have acted in an inappropriate or underhanded manner.22
The Wizengamot appears to be both a court of law and a court of equity. The reason it is a combined court may be simple expediency. It was probably difficult to find enough qualified wizards willing to serve on one Wizengamot; finding enough for two would have stretched the pool of talent too thin.
The size of the Wizengamot offers an interesting problem. It is too big to be an effective judicial body. According to the literature, there are fifty members of the Wizengamot.23 The Wizengamot is unwieldy at fifty people, because if they all have to agree on a ruling it would almost always deadlock. Most countries have less than 20 people in their “Supreme Court”. Fifty is a legislative-size group. I believe that the fifty is the possible pool for a case. How the judges were chosen would be an internal rule of the Wizengamot. There would be instances where the entire fifty would sit,24 but it would be in cases like the impeachment of the President of the United States where the 100 members of the Senate sit in judgment. It is possible that the Wizengamot is the Legislative body we have not met and that they also provide judicial oversight of the Ministry and the Wizarding World.
This is not as far-fetched an idea as it seems. The Star Chamber was an English court of law that grew from the King’s advisors in the Middle Ages and was abolished in 1641, just before the separation from the Muggle World.25 This court oversaw the lower courts and heard cases directly. The purpose of the Star Chamber was to enforce the laws against people so powerful that ordinary courts could never convict them of their crimes.26 The Chamber reached its zenith under the Tudors, giving the crown legal cover for things that would have caused an insurrection if brought directly. It is conceivable that the Wizengamot is a Star Chamber that was not tied to the King, but to Parliament or to the Prime Minister, empowered to keep wizards from committing crimes and escaping punishment. In the absence of direct Parliamentary oversight, the Wizengamot became an elected or appointed office, providing what little legislative control the Wizarding World requires.
Justice outside the Law
Once we leave the scope of legal justice, we step into murkier waters. Take the Order of the Phoenix, for instance. They are clearly not part of the Ministry’s enforcement apparatus, and therefore, by definition, vigilantes. Being a vigilante in and of itself is not a crime, but the protections and assumptions available under the law to law enforcement personnel are not offered to vigilantes. If a member of the Order of the Phoenix killed a Death Eater, he could very well find himself charged with murder.
The law makes no distinction between the two groups. While we may think that the Order of the Phoenix is on the side of right, a Death Eater would view his side as righteous. In his mind, the attacks on other wizards are just punishment for campaigning against the rightful lord of Wizardkind. He is completely out of his gourd; but, in his mind, he is an instrument of justice.
So, how do authority, law, and justice apply in the Wizarding World? The answer: much as they do in our world, occasionally at odds with each other, but in hopes of acting in concert.
Ms. Rowling clearly has a modern sense of wariness about government and knows that it is not infallible. She describes the Ministry for what any government agency is – a collection of people largely trying to do the right thing with some clearly looking out for themselves. She shows the politics and the bootlicking that always play a role with power and how power can corrupt the just goals of any group. People may question writing characters that casually disobey orders or laws, but I believe that her characters are subject to appropriate punishment if caught disobeying those laws. The characters perform their own ethical calculus and determine whether they think the effort is worth the possible punishment. Even characters who act recklessly do so in a manner one would expect from 11 year-old boys, for example.
Finally, we see a fundamentally optimistic view in her writing. Ms. Rowling writes for us a world where people genuinely care about getting the answers right, about doing the just thing, and making the world a better and safer place. It is that view, and the implied encouragement for the individual reader to do the same, which is the real epitome of Authority, Law, and Justice in Harry Potter.
1. Rowling, J.K. Harry Potter and the Order of the Phoenix. New York: Scholastic, 2003. p. 33.
2. Rowling, J.K. Harry Potter and the Half Blood Prince. New York: Scholastic, 2005. pp. 15-18.
3. Except any wizard in the House of Commons of course. I would not expect Hogsmeade to have its own district.
4. Rowling, J.K. Harry Potter and the Goblet of Fire. New York: Scholastic, 2000. pp. 77-78.
5. Rowling, J.K. Harry Potter and the Half Blood Prince. New York: Scholastic, 2005. p. 382.
6. Rowling, J.K. Harry Potter and the Goblet of Fire. New York: Scholastic, 2000. p. 56.
7. See, for example Rowling, J.K. Harry Potter and the Order of the Phoenix. New York: Scholastic, 2003. p. 132.
8. Rowling, J.K. Harry Potter and the Chamber of Secrets. New York: Scholastic, 1999. Passim.
9. Rowling, J.K. Harry Potter and the Order of the Phoenix. New York: Scholastic, 2003. Passim.
10. Ibid. p.139.
11. Ibid. p.138.
12. Ibid. p.851.
13. See, for example, Ibid., p.145.
14. See, for example, Ibid., p.624.
16. Rowling, J.K. Harry Potter and the Sorcerer’s Stone. New York: Scholastic, 1998. p.297
17. Rowling, J.K. Harry Potter and the Half Blood Prince. New York: Scholastic, 2005. p.523.
18. Davidenglish. “Things Kept Secret - The Parting of the Wizarding and Muggle Ways.” Scribbulus 2nd edition, 2006. /features/essays/issue2/ThingsKeptSecret.
19. Bauman, John A., York, Kenneth H., Bauman, John H. Gilbert Law Summaries: Remedies. New York: BarBri, 2003. pp.13-14.
20. Holmes, Oliver Wendell. Common Law: Lecture II The Criminal Law. New York: Little, Brown and Co. 1881. p.1.
21. Bauman, John A., York, Kenneth H., Bauman, John H. Gilbert Law Summaries: Remedies. New York: BarBri, 2003. pp. 712-713.
22. Ibid. p.157.
23. Rowling, J.K. Harry Potter and the Order of the Phoenix. New York: Scholastic, 2003. p. 138.
25. Scamander, Newt a.k.a. Rowling, J.K. Fantastic Beasts & Where To Find Them. New York: Scholastic, 2001. p. XV.
26. Wikipedia. “Star Chamber”. 2006 http://en.wikipedia.org/wiki/Star_chamber.
Bauman, John A., York, Kenneth H., Bauman, John H. Gilbert Law Summaries: Remedies. New York: BarBri, 2003.
Davidenglish. “Things Kept Secret - The Parting of the Wizarding and Muggle Ways.” Scribbulus 2nd edition, 2006. /features/essays/issue2/ThingsKeptSecret.
Holmes, Oliver Wendell. Common Law: Lecture II The Criminal Law. New York: Little, Brown and Co. 1881.
Rowling, J.K. Harry Potter and the Sorcerer’s Stone. New York: Scholastic, 1998.
———. Harry Potter and the Chamber of Secrets. New York: Scholastic, 1999.
———. Harry Potter and the Goblet of Fire. New York: Scholastic, 2000.
———. Harry Potter and the Order of the Phoenix. New York: Scholastic, 2003.
———. Harry Potter and the Half Blood Prince. New York: Scholastic, 2005.
Scamander, Newt a.k.a. Rowling, J.K. Fantastic Beasts & Where to Find Them. Vancouver, New York: Scholastic, 2001.
Wikipedia. Various. Wikipedia Encyclopedia. 2006 http://en.wikipedia.org.