Unforgivable Curses, the Ministry of Magic, and Muggle Law
To celebrate Halloween, I thought you might find this article by Professor Aaron Schwabach interesting. It is entitled Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizardy World. It already has a following, ranking as the 11th most popular SSRN download relating to international law.
The key question is whether the rules and norms of the Wizardy World comport with the obligations of British Muggle Law and international law. Thus, he writes, “Wizards have their own structures of international law, which have adopted rules such as the International Statute of Wizarding Secrecy. International human rights law, however, seems to mean little more to the Ministry of Magic than does British Muggle law. Executions, let alone executions order by administrative officials without any judicial determination of guilt, are forbidden by Protocol 6 of the European Convention on Human Rights…. If the Ministry of Magic is in some sense a separate sovereignty not subject to UK law, it is unlikely to be a party to any Muggle international agreements. Nonetheless certain of those agreements and the principles they embody have attained the status of international custom or even jus cogens– preemptory norms from which no derogation is permitted, even for the Ministry of Magic.”
Here is the abstract:
The astounding success of the Harry Potter series of children’s fantasy novels is an unexpected cultural phenomenon, but a welcome one for lawyers and legal academics: Harry’s story is a story about law, and about a society trying to establish a rule of law. There is law in every chapter, and on almost every page, of all six books. Sometimes the legal questions hang in the background, while at other times they are the focus of the story: We see numerous trials, and the author gives us statutes, regulations, school rules, and even international agreements to consider.
Harry’s world is administered, ineptly, by the Ministry of Magic. The Ministry of Magic’s muddling 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. It imprisons people, and sometimes executes them, without a trial. It keeps careful tabs on law-abiding citizens, but is unable to track down terrorists. It reaches inaccurate results in about half of its criminal trials, in large part because defendants are not represented by counsel. This article attempts to examine the problems with the wizarding word’s legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death.
There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry’s world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry’s regime as well as under relevant British (Muggle) and international law.