Harry Potter and the Unforgivable Curses

Abstract

For Potter fans only: In this chapter Professor Schwabach builds on and updates his earlier work on the law of Harry Potter's world, extending his treatment of the "Unforgivable Curses" to include new material revealed in "Harry Potter and the Deathly Hallows," "The Tales of Beedle the Bard," and J.K. Rowling’s post-Book 7 interviews.

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 seven main-sequence books, and the three others as well, especially "Fantastic Beasts and Where to Find Them." Sometimes the legal questions hang in the background, while at other times they are the focus of the story. In an unusual move in a fantasy series, the author shows the readers not only numerous trials, but also statutes, regulations, school rules, and even international agreements.

Harry's world is administered, ineptly, by the Ministry of Magic. The Ministry'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, adopts an ad hoc and inconsistent approach to justice. It imprisons people, and sometimes executes them, without a trial. It keeps intrusively 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. The treatment of the Unforgivable Curses (three spells whose use on humans is supposedly punishable by life imprisonment) reveals all of these problems.

In this chapter, Professor Schwabach explores the moral assumptions embedded in the Ministry's treatment of the Unforgivable Curses through an examination of the legal treatment of these spells under the Ministry's regime as well as under relevant British (Muggle) and international law.

An in-depth treatment of the Unforgivable Curses in Books 1 through 6 appeared in Aaron Schwabach, "Harry Potter and the Unforgivable Curses: Norm-Formation, Inconsistency, and the Rule of Law in the Wizarding World," 11 Roger Williams U. L. Rev. 309 (2006) (available at http://ssrn.com/abstract=818185).

"The Law and Harry Potter" (Jeffrey Thomas & Franklin Snyder eds., Carolina Academic Press, 2010), the book in which the chapter excerpted here appears, also includes, inter alia, works by several of the other co-authors of Jeffrey Thomas et al., "Harry Potter and the Law," 12 Texas Wesleyan L. Rev. 427 (2005).

Keywords: Children's Literature, Cultural Studies, Harry Potter, Humor, Humorous, Interdisciplinary, International Law, Fantasy, Law and Culture, Law and Humanities, Law and Literature, Law and Popular Culture

JEL Classification: K10, K33