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William P. MacNeil is Associate Professor of Law at Griffith University.

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Lex Populi

STANFORD UNIVERSITY PRESS

Contents

Acknowledgments..................................................................................................................xiList of Abbreviations............................................................................................................xvIntroduction: Toward an Intertextual Jurisprudence...............................................................................11. Kidlit as Law 'n Lit: Harry Potter and the Scales of Justice..................................................................112. You Slay Me! Buffy as Jurisprude of Desire....................................................................................283. "The First Rule of Fight Club Is-You Do Not Talk About Fight Club!" The Perverse Core of Legal Positivism.....................444. One Recht to Rule Them All! Law's Empire in the Age of Empire.................................................................615. Precrime Never Pays! Law and Economics in Minority Report.....................................................................806. Critically Blonde: Law School as Training for Hersteria.......................................................................977. "It's the Vibe!" The Common Law Imaginary Down Under..........................................................................1168. Million Dollar Terri: "The Culture of Life" and the Right to Die..............................................................132Conclusion: Whither Lex Populi? A Law by and for the People......................................................................155Notes............................................................................................................................161References.......................................................................................................................207Index............................................................................................................................233

Chapter One

Harry Potter and the Scales of Justice

Harry Potter's Legal Legerdemain: The Jurisprudence of Magic and the Magic of Jurisprudence

As many of his young fans would put it, "Harry Potter is magic!" That fashionable youth culture expression is for once entirely warranted because it captures our hero's extratextual (oc)cult following as a worldwide publishing phenomenon, as much as it does his intratextual practices as a wizard-in-training. For Harry Potter is, literally, enchanting. From his first appearance in the kickoff volume of J. K. Rowling's remarkable series, Harry Potter and the Philosopher's Stone, Harry and his teenybopper cohort of sorcerer's apprentices-Hermione, Ron, Neville, Seamus, and the rest-have cast a spell over legions of supposedly print-allergic, digitally dependant children, bewitching them on behalf of the "pleasure of the text" instead of the spiel of the video. In the second and third follow-ups-Harry Potter and the Chamber of Secrets and Harry Potter and the Prisoner of Azkaban-they have continued to charm that original readership as well as new, largely adult audiences. Principally, those Tolkien-, Lewis-, and Blyton-reared baby boomers, long alienated by the exile of "the fantastic" not only from the best-seller lists but from children's literature as a whole. With the publication of the fourth installment, Harry Potter and the Goblet of the Fire, this broadening of readership, adult or otherwise, continued apace; though it complicated and even contested some of the unflattering and patronizing media images of Rowling's series as escapist whimsy, nostalgic for the conservatism of the Shire, Narnia, or Mallory Towers. For here, in her fourth offering, Rowling first addresses-so I contend-one of the least whimsical of readerships in terms that are anything but backward looking or conformist: namely, lawyers-especially those of a critical persuasion.

Not that the legal profession directly figures in the text's characterological system in the way, say, journalism is satirized in Rita Skeeter, the odious queen of tabloid tittle-tattle. Or for that matter, the way bureaucracy is lampooned in the unfortunately monikered Cornelius Fudge, the muddlingly mediocre Minister of Magic. But despite their absence as characters from the dramatis personae, lawyers nonetheless may be the novel's privileged implied readers because of their pervasive presence in the text's setting, language, and theme: what James Boyd White would call its "legal imagination" and what in this text I call its lex populi. This imaginative vision is realized in the novel's representation of the law's principal forensic process, the trial and its Rule of Law imperatives as dramatized in the tribunals of the Death-Eaters and detailed in the next section of this chapter. It is developed in the text's repeated referencing of that now-dominant juridical idiom, rights, especially in the running gag about Hermione's efforts to emancipate the house elves, and again in its implicit evocation of jurisprudence's controlling value, justice-the very norm that I contend Hogwarts supposedly stands for, but so desperately lacks. Justice, rights, and the Rule of Law: that is the juridical triune, the nomological three-in-one of legal theory generally, and liberal legalism in particular, that this seemingly simple "kidlit" text takes up and narrativizes. It does so, moreover, with Rowling's characteristic mixture of the serious and the satirical, the critical and the celebratory, to the extent that Harry Potter and the Goblet of Fire is propelled out of the "genre ghetto" altogether (by a Nimbus 2000?) and into the stratosphere of lex populi's emerging canon of "law-and-lit."

Hogwarts as Nuremberg: The Pensieve's Vision of Judgment

A law-and-lit reading of this kidlit text would begin however, at the story's end. A back-to-front interpretive strategy is justified because in Chapter 30-near the concluding Chapter 37, ironically titled "The Beginning"-the reader is immersed, vicariously, in the novel's legal imagination. There Harry plunges, like an inadvertent diver "thrown forward and pitched headfirst" (HP&GF, p. 508), into the undecidably aqueous or gaseous "bright, whitish silver" (HP&GF, p. 507) swirl of Albus Dumbledore's "pensieve." This object is a magical, rune-decorated "shallow, stone basin" (HP&GF, p. 506), secreted away in the headmaster's study, upon which our hero stumbles after a debriefing session following his disturbing encounter with the now clearly deranged ministerial official, Bartemius Crouch, Sr. The pensieve is one of those portmanteau puns, typical of Rowling's humor (like Diagon Alley), that works both as a referent, descriptive of its object, and as a sign, phonically autoreferencing itself. Quite literally, the pensieve, as the orthography of the second syllable indicates, is a sieve, screening out "excess thoughts" and "memories" (HP&GF, p. 519). But as the first syllable's pen indicates, the pensieve is holder, as Dumbledore explains, containing these thoughts for later reflection. Then, their "patterns and links" will be processed, mulled over mentally (HP&GF, p. 519); hence, the pensiveness of the pensieve. But the pensieve affords more than just an opportunity to reexamine past memories and thoughts; it enables one to actually reexperience them, restaging these moments of temps perdu, like some returned, hitherto repressed trauma, suggesting that the pensieve is not unlike, in its structure and function, the Freudian unconscious.

This similitude, of course, is not the text's first gesture in the direction of psychoanalysis. After all, throughout the novel, Harry has been plagued by a series of psychic events that Freud called "the royal road to the unconscious": namely, dreams-or more precisely here, nightmares. The first of these occurred at Privet Drive, home of the dreaded Dursleys (HP&GF, ch. 2); the second, at Hogwarts in the unlikely confines of Prof. Trelawney's bogus Divination class (HP&GF, ch. 29). Both nightmares herald the return of Voldemort, the Dark Lord, whose growing power is somatized in the symptomatic throbbing of Harry's fabled forehead scar. But Harry's nightmares, on both occasions, differ markedly in content, as well as in their source and effect, from the memories vouchsafed him by Dumbledore's pensieve. While the nightmares are criminally violent in the extreme, replete with near-Tarantinoesque scenes of murder (that of Riddle House's hapless muggle caretaker, Frank Bryce; HP&GF, p. 19) and torture (in the Cruciatus curse performed on Voldemort's shape-shifting factotum, Wormtail; HP&GF, pp. 500-501), the pensieve's memories are models of order-specifically, law and order. For they consist of three long-past trials at law of putative Death-Eaters, the Dark Lord's erstwhile minions. First, that of Igor Karkaroff, the Blofeldian headmaster of Durmstrang, Hogwarts' ruthless Mitteleuropa rival in athletics and scholastics. Second, that of the aptly named Ludo Bagman, former Quidditch star now turned sports impresario for the Ministry of Magic, compering any and all events of a gaming (read, gambling) nature, such as the World Quidditch Cup and the Triwizard Tournament. Finally, there is the trial of a kind of Death-Eating "Gang of Four," the most recalcitrant of Voldemort's followers, of whom one prominent member is Crouch's renegade son, Barty Jr.

None of these trials, however, tells either Harry or the reader anything new in terms of plot development. They merely confirm what the text has strongly hinted at, if not disclosed outright. For example: that Karkaroff was a Death-Eater, imprisoned for it, and released only when he grassed on his former associates in crime by turning state's evidence (all of which we know, courtesy of the fugitive Sirius Black, who early on warned Harry off Karkaroff and the entire Durmstrang mob; HP&GF, p. 291). That Ludo Bagman is a compulsive punter who plays fast and loose with any and all rules when money is involved (think how all too eager he is to "help" Harry by passing on insider information, prior to each event of the tournament so that his odds-on favorite will win the Triwizard and his punt with the goblins; HP&GF, pp. 307, 389). That the Crouch family was destroyed by Barty Jr.'s treachery: his father's career compromised, his mother dead of grief, and himself dying in prison (again, a cautionary tale told by Sirius in one of his clandestine visits to Hogwarts in his role as Harry's godfather and guardian; HP&GF, pp. 456-59). Nothing startling here, at least in causal terms of who, what, or why. All of which points to a thematic rather than structural function for the pensieve's trial scenes in the narrative as a whole.

What these trial scenes thematize is the kind of world that Hogwarts-and magic-represent. Namely, one that is subject to the Diceyan-like "Rule of Law," that lynchpin of liberal legalism where no one is above the law, even if they are Barty Crouch, Jr., and where everyone is entitled to the same procedures-in this case, trial by jury (twelve wizards strong and true?). The presence of the jury at these trials heightens this thematic of legalism and provides a sharp contrast to the insidious trials by ordeal meted out by that demonic parody of the "Rule of Man," Lord Voldemort. He is the would-be sovereign that kills through command and whose sanctions work almost as brutally against those who obey him (think of Wormtail's sacrificed hand during the resurrection ceremony; HP&GF, pp. 556-57) as those who oppose him (like Neville's parents, the Longbottoms, whom he has driven insane; HP&GF, pp. 523-24). Here, I argue, is the raison d'tre for the pensieve's curial representations; they drive home an important jurisprudential point about Hogwarts and indeed the magic kingdom as a whole. That, despite the unsettling carceral presence of Azkaban in its midst-now, more than ever, under the rule of the Dementors, a spiritual gulag-the realm of witches and wizards remains committed, as the trials demonstrate, to resolution rather than revenge, adjudication rather than attack-or, as the late Jacques Derrida might put it, the "force of law" rather than the law of force.

Or is it so committed? After all, force is present in spades in the brusque courtroom strong-arming of Barty Crouch, Jr. His pathetic, repeated cries of "Mother, I didn't do it" (HP&GF, p. 517) evoke among the jury neither "the quality of mercy" nor a call for clemency, but rather a vengeful, almost sadistic "savage triumph" (HP&GF, p. 516). Admittedly, you couldn't find an accused more deserving of this kind of treatment than Barty. Think of his litany of criminal escapades, recited during his "veritaserum"-induced confession (HP&GF, p. 593): the covert break from Azkaban (HP&GF, p. 594); the abduction and impersonation of Mad-Eye Moody (HP&GF, pp. 591-92); the attempt on Harry's life (HP&GF, p. 589). All carried out by Barty in the aid of and fanatical devotion to Voldemort: "It was my dream, my greatest ambition, to serve him, to prove myself to him" (HP&GF, p. 597). Thus Barty's cries of innocence here ring far from true, calling to mind the disturbed psychopathology of that other mother-fixated killer of popular culture, Norman Bates, and warranting, even justifying the use of the most extreme force. Still there is something deeply unsettling about a life sentence callously meted out to a teenager in the most ham-fisted way imaginable, "being dragged away" by the Dementors, whose "cold, draining power was starting to affect him" (HP&GF, p. 517). But the real sticking point is that Barty is not only denounced, but denounced by his own father, an intrafamilial betrayal recalling those treacheries rife under Hitler and Stalin in which party loyalty trumped blood ties. This betrayal raises a strong suspicion that what Harry witnesses here in the pensieve is not a bona fide judicial proceeding but rather one of those curial performances beloved of totalitarian regimes: namely, the show trial, where legality is staged as a show of governmental force. Precisely, in fact, what the Ministry of Magic under witch-finder-general Bartemius Crouch, Sr., seems to have done here.

For all that is bad in Barty Jr.'s trial, however, things are worse with the proceedings against Karkaroff and Bagman, thoroughly undermining the dignity of the court and its processes. The trial of Karkaroff, for instance, is more a police interrogation than a judicial proceeding, with an unctuous, favor-currying accused plea-bargaining his way out of Azkaban: "'Crouch is going to let him out,' Moody breathed quietly to Dumbledore. 'He's done a deal with him'" (HP&GF, p. 511). The deal consists of an exchange for information, Karkaroff naming the names of his erstwhile Death-Eating comrades: Dolohov, Rosier, Travers, and even, in one last desperate effort, Severus Snape, Hogwarts' obstreperous Potions master and the bane of Harry's and indeed Gryffindor's existence (HP&GF, pp. 511-13)! An even more unedifying juridical spectacle is the "indulgence" with which Ludo Bagman is treated at his trial (HP&GF, p. 514). He is all too easily exculpated as the "innocent dupe" of the Philby-like ministerial mole, Augustus Rockwood. "Not one person raised their hand" for a vote for guilty, and he is even congratulated by one of the jury for his "splendid performance" in the last Quidditch match (HP&GF, p. 515). So much for the equality of treatment under the law, which here seems shot through with judicial bias, operating far too leniently for some (for sporting stars like Bagman), but all too severely for others (like Barty Jr.). And which, in its utter indifference to the principle of "like cases being decided alike"-the fulcrum of the Rule of Law, stare decisis-is suggestive of the worst features of the Rule of Man and its capricious, arbitrary, and erratic "palm tree justice."

So the vision of judgment that emerges from the pensieve's rebus is a grimly forbidding one: of a society judged and found wanting. Wanting in the very legality it purports to stage; because here, in the trial tactics of forced confessions (Barty Jr. under the veritaserum) and grudge informers (Karkaroff), this society resembles nothing less than a police state. Now, one could argue, as indeed Sirius Black does, that this a-legality, even antilegality, is an extreme but necessary response to an emergency situation, a "policing of crisis," as Stuart Hall would put it. For these trials occur in the aftermath of Voldemort's first appearance, his rise to power having bred "terror everywhere ... panic [and] confusion." Against this dire backdrop, the magic kingdom's chances for survival would have been remarkably slight, or so Sirius seems to imply, if it did not fight "violence with violence." But the danger, Black continues, is that these temporary "harsh measures"-turning the Aurors, for example, into a kind of crack SAS squad with "powers to kill rather than capture"-may have become permanent (HP&GF, p. 457).

This situation threatens to transform, if not the whole society, then at least the hitherto rule-bound, but ultimately benign, Ministry of Magic into something "as ruthless and cruel as many on the Dark Side" (HP&GF, p. 457). Already, Cornelius Fudge travels in state, with the Dementors acting as a kind of praetorian guard (whose loyalty is highly uncertain, given that Voldemort himself considers them his "natural allies"; HP&GF, p. 564). Fudge even goes so far, in the wake of the debacle of the Triwizard Tournament, to bring them into Hogwarts itself, where they dispense their "rough (in)justice" to the likes of Barty Crouch, Jr.: "It had administered its fatal kiss to Barty Crouch. It had sucked his soul out through his mouth. He was worse than dead" (HP&GF, p. 610). Naturally, Dumbledore stands firm against the Dementors and the kind of "discipline and punish" they represent; he says to Barty Crouch, Sr.: "The first and most essential step is to remove Azkaban from the control of the Dementors" (HP&GF, p. 614). So his attitude is consistent with and remains unchanged from Harry Potter and the Prisoner of Azkaban, where even on their security patrols he forbade the Dementors' presence on Hogwarts' school grounds. "Dumbledore won't let them into the school," says Lupin (HP&PA, p. 140), a bar that functions as a kind of quarantine, immunizing the student body against the Dementors' malign in fluence, even spiritual pollution.

(Continues...)

Excerpted from Lex Populiby WILLIAM P. MACNEIL Copyright © 2007 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
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