Filled with the spirit of Hallowe'en, Susan Hall discovers a creepy legal thread running through the Harry Potter stories that offers a serious perspective on the rule of law

Legal issues, and the way in which the wizard world handles them by contrast to its muggle (non-magical) equivalent, crop up endlessly in the Harry Potter books by JK Rowling.

The books are not merely a struggle between good (personified by Harry) and evil (personified by Lord Voldemort).

Government officials, in Ms Rowling's world, can be quite as power crazed as would-be evil overlords, and failure to afford an accused criminal a fair trial is just as evil as casting an unforgivable curse.

So prevalent and important are these topics that it is, in some respects, easier to explain the concept of the rule of law to a non-lawyer by reference to Rowling rather than to Dicey.

By the end of the first five books, we are aware of several points.

First, the wizarding world is a slave-owning society, with little or no internal debate about whether 'owning' house-elves is wrong.

Their owner may demand that they inflict unlimited punishment on themselves.

Free house-elves cannot expect to find paid employment except in extraordinary circumstances.

Second, all non-human magical creatures are discriminated against.

Clause three of the Code of Wand Use, we are told, states that 'no non-human creature is permitted to carry or use a wand'.

Goblins, though they control the wizard bank, Gringotts, are still subject to anti-wand regulations.

It is feared Voldemort will induce them to ally themselves with him in the forthcoming war by promising the removal of legal disabilities.

Non-magical humans (muggles) have even less status in the wizard world.

For wizards and witches, a 'being' is 'any creature that has sufficient intelligence to understand the laws of the magical community and to bear part of the responsibility in shaping those laws'.

Dead beings ('has-beens') are spirits; those who fail the above test are 'beasts'.

On a strict legal interpretation, it is difficult to see muggles as anything other than 'beasts'.

Whether muggles have sufficient intelligence to understand magical law is irrelevant.

The International Statute of Wizarding Secrecy of 1692 prevents their involvement in shaping wizarding laws, even those that directly affect them, such as the Muggle Protection Act.

The international statute's influence - which seems to have frozen notions of individual rights in the wizard world as they had existed approximately at the end of the 17th century - may also explain the lack of a concept of the separation of powers.

The Ministry of Magic acts as legislature, judicature and, apparently, prosecuting authority.

Mr Crouch, a senior civil servant, acts as inquisitor in a trial of his own son.

We do not have a full text of the statute or its subordinate legislation, but section 13 creates an offence of carrying out magical activity that risks being noticed by members of the non-magical community.

In fact, enforcement of the rules is patchy, though a witch or wizard who falls foul of the ministry is likely to suffer badly for it.

Ms Rowling explicitly presents all of the above as evils within wizarding society.

It is often argued that the Voldemort threat has created a 'state of emergency', justifying infringement of civil rights.

However, it seems more likely that the effect of the statute has, in fact, created a 300-year-long state of continuous emergency.

Voldemort exploits this in his bid for power.

The wizard world, lacking an accountable central authority, has developed extra-legal protection mechanisms.

Witches and wizards seem forced to attach themselves as 'clients' to powerful 'patrons'.

Patronage networks typically arise when the rule of law has broken down or where groups consider themselves as being institutionally disadvantaged in society and unable to avail themselves of formal mechanisms to achieve justice.

The patronage system was at its height in the later Roman republic, where it was a recognised part of society.

A patron could call on his clients for practically any service it was in their power to render him, and, in turn, clients could call on their patron for protection and advancement for themselves and their families.

Although wizarding society does not expressly acknowledge it, this does seem to be what is going on.

Dumbledore (headmaster at Hogwarts), Voldemort, Fudge (the Minister of Magic), Lucius Malfoy (an evil wizard) and Crouch (senior) all act as patrons at various points within the series.

As Fudge grows in confidence in his control of the ministry, so the ministry turns against Dumbledore, and the capricious impact of its jurisdiction on Dumbledore's supporters becomes more apparent.

Dumbledore, possibly from his closer contact with muggle life and institutions than many wizards, appears to have more respect than Fudge for the rule of law, but where it fails he unhesitatingly turns to extra-legal action.

An example is the rescue of Sirius Black and Buckbeak, the Hippogriff, each of whom has been wrongly condemned to death - in Harry Potter and the Prisoner of Azkaban - which Harry and Hermione (a fellow student at Hogwarts) achieve by a sequence of highly illegal and dangerous activities.

Traditionally, at fictional boarding schools - whether they be Greyfriars, Malory Towers, Hogwarts or the Chalet - breaking the law appears to be as much a part of the curriculum as Latin or geography.

Nonetheless, even by the standards of the genre, it is unusual for the illegal activities of 13-year-old pupils to be actively egged on by the headmaster.

Dumbledore is an inveterate law-breaker (for the best of motives, naturally) but he is far from alone.

Practically all the adult characters in the Harry Potter books seem to appreciate wizarding law mainly for the attractive tinkling noises it makes when they break it.

This cavalier attitude is more surprising given the harshness of wizarding penal institutions.

Conditions in the wizard prison, Azkaban, are deliberately calculated to cause permanent clinical depression in its inmates, frequently occurring within days.

However, imprisonment without trial is not uncommon and, as the latest book shows, even where the accused is allowed a hearing, due process is conspicuous by its absence.

In Harry Potter and the Order of the Phoenix, Harry himself is charged with breach of the statute.

He did the act alleged, but in self-defence.

Within minutes of acting, he is informed that he is to be expelled from school, his wand destroyed, and that only then is he to attend a disciplinary hearing.

Shortly afterwards, suspension is substituted for expulsion, and he is permitted to keep his wand.

However, legally the ministry has no power to expel students from Hogwarts nor to confiscate wands until charges have been proved.

Secondly, although he is a minor, he is denied legal representation or even adult accompaniment.

Thirdly, although he expects a relatively informal disciplinary hearing, he gets a full criminal trial before the Wizangemot.

The time of his hearing is brought forward at exceptionally short notice, possibly in an attempt to have him tried in absentia.

Fudge attempts to prevent witnesses being called on Harry's behalf and alludes to Harry's alleged prior offences, despite the fact that he has never been prosecuted (let alone successfully convicted) before and they are irrelevant to the trial at hand.

Finally, we learn that the entire situation has arisen from direct entrapment by one of the interrogators.

There are two more books to go, but as Ms Rowling has already tackled natural justice, abuse of process, conflict of interest, the burden of proof, the limits on emergency powers, the effect of legal discrimination on promoting civil unrest among disadvantaged groups, and employment discrimination against those suffering contagious conditions, it will be interesting to see where her commentary on contemporary legal topics by means of their wizarding parallels will take her next.

Susan Hall is a partner specialising in intellectual property and IT at Manchester and Leeds-based law firm Cobbetts.

- The opinions expressed are her own and do not necessarily represent those of the firm.

This article is not authorised by, and has no connection with JK Rowling, Bloomsbury Books, Scholastic Books or Warner Brothers.

This article is based on a presentation delivered at Nimbus 2003 (the first international Harry Potter Symposium), Orlando, Florida, in July 2003.

The expanded version will be available as part of a compendium of papers published by the organisers; details are available at: www.hp2003.org.