“The world is a book, and those who do not travel read only a page,” quipped Augustine of Hippo. It is not far-fetched to ruminate on the impression of a good book on one’s personal and professional existences. West Australian barrister Tom Percy QC recently argued there are lessons to be gleaned from the works of Orwell and Camus, dating back 80 years.
In conversation with Lawyers Weekly, Mr Percy said the modern relevance of issues and themes raised in books such as 1984 and L’Estranger – including surveillance, thought-crime and probative evidence of guilt – are haunting, in light of developments in the law that continue to vindicate the unspoken messages that flow through both of those “epic stories”.
“In the eighty odd years since Camus and Orwell wrote their respective novels, the legal and social landscape has changed in many ways. In some ways, beyond recognition. In some respects, those changes have been for the better, but in some ways definitively for the worse,” he submitted.
“As strange as it may seem, the lessons to be learnt from past forecasts as to the direction in which the law might be heading do not invariably come from great jurists, nor from politics, but sometimes from the great works of literature.”
The collective Harry Potter novels can, indeed must, be similarly considered as significantly consequential, particularly for the generation for whom it was originally written, and not just because it has sold almost half a billion copies worldwide and has been published in over 50 languages.
It will, undoubtedly, be consumed in time by the offspring of those currently coming through the legal ranks, but for that cohort who first had the pleasure of reading Harry’s adventures, it has real potential to shape how those legal professionals see the world around them.
References to law in Harry Potter, and emerging legal issues
Perhaps because the books are targeted at young adults, the Harry Potter series does not delve too deeply into legal authority. One can glean, however, from the chapters dealing with governmental matters, that law and order comes from two primary sources: the legislature (Ministry of Magic) and the judiciary (Wizengamot).
The former appears throughout the series, both as a friend and foe to Harry. The Ministry’s primary function is to protect the interests and anonymity of the magical community, with secondary tasks such as ensuring the safety of Muggles, licensing certain skills such as Apparition and policing dangerous artefacts.
The latter – which appears as a kind of Supreme Court for the magical community – is alluded to on occasion but only appears once in the series (in Order of the Phoenix…more on that later). Since the Minister of Magic sits on that court, apparently as a chief justice of sorts, it would seem the two branches of government are closely intertwined, most unlike our own Westminster system.
It is also unclear whether the wizarding judiciary deals only with criminal matters, as is seen sporadically throughout the series, or if civil suits are ever brought by aggrieved witches or wizards against another individual or institution.
When it comes to actual laws, there are scant references to legislative constraints upon the magical community. Only three spells are ever noted as being illegal and are so noted as the ‘Unforgivables’: the Imperius Curse, the Cruciatus Curse and Avada Kedavra. Use of those spells will earn a witch or wizard a one-way ticket to Azkaban for life.
These appear to be the only explicit behaviours that are expressly prohibited by magical law (at least for adults – those under the age of 17 are also not allowed to use magic during school holidays). But, as we mere Muggles know, there are far more crimes that one can commit outside of manipulating someone to perform a task under duress, torturing or killing.
Elsewhere, a central tenet of our legal system is the contract. Throughout the series, magic is used as a substitute for what we would understand to be a contractual agreement and traditional enforcement of those agreements. This is fraught with problems, as both major and minor characters discover across the books. For example, the last will and testament of Sirius Black can only be deemed binding following the conduction of an experiment in Half-Blood Prince, in which Harry has to give an order to Kreacher, the house elf.
Impracticality aside, agreements that we would deduce as contractual emerge on two particular occasions – the list of members of Dumbledore’s Army (DA) that Hermione has people sign in Order of the Phoenix and the Unbreakable Vow entered into by Severus Snape and Narcissa Malfoy in Half-Blood Prince – are both concerning from a legal standpoint.
Hermione’s list, unbeknown to the those who sign it, binds its signatories to a vow of silence, which if broken results in a breakout of boils spelling out the word ‘SNEAK’ across that person’s face, as Marietta Edgecombe discovers when she betrays Dumbledore’s Army. This is a scene that we, the audience, will cheer, as we are rooting for the DA to triumph over the meddling Delores Umbridge and the increasingly-corrupt Ministry. But to have secretly jinxed a contract so that any breaches results in physical pain and suffering for that party is problematic to say the least, if not downright immoral. It goes without saying that the production of such a contract would be most unethical for any legal practitioner.
The Unbreakable Vow scene is a crucial plot point, as it codifies the killing of Professor Dumbledore by Snape – something the pair had already agreed on secretly but allows the Potions Master to retain his deep cover with the Death Eaters and carry out his mission to protect Harry. And while entering into this vow did not alter the course of action Snape was already undertaking, the existence of such a binding agreement in the magical community is exceedingly dangerous, as Ron very nearly discovers at the hands of his twin brothers, Fred and George, who tried to have him take a vow. The jeopardy of this scenario is not lost on the Weasley children’s father, Arthur, who lost his temper in a manner not before seen by the twins.
“Fred reckons his left buttock has never been the same since,” remarks Ron, referring to the beating their father dished out to the twins.
Humour notwithstanding, the capacity for witches and wizards – including children, no less – to enter into a contract that, if breached, results in the death of that party lends credence to an impression of martial law, particularly in light of the fact that, in neither scene in which Unbreakable Vows are formed or almost-formed is a higher authority consulted or even informed. If any prescriptive laws do apply to the undertaking of Unbreakable Vows, their existence is not made known to the reader.
What these numerous examples throughout the series illuminate is that there is, or at least appears to be, a lack of legislative constraints upon the magical community. Witches, wizards and the Ministry overseeing them are so concerned with upholding the International Statute of Secrecy to protect their world that legal processes that would otherwise improve the day-to-day functioning of that secret world may be left by the wayside.
In lieu of such laws, there is a reliance, if not over-reliance, on magic as an avenue through which order and process can be upheld. But not only can this can have mortal consequences, oft-unintended, but it decreases the power of and faith in the rule of law, which as the next section describes, is paramount to the carrying out of justice.
Inextricable need for law and legal advocates
The seeming lack of legislative constraints upon the magical community in Harry Potter is made abundantly clear in both Goblet of Fire and Order of the Phoenix by the absence of legal representation in the only two scenes throughout the series in which something resembling a courtroom hearing is depicted.
In the former, Barty Crouch Jnr is sentenced to Azkaban (by his own father, no less) for his conduct as a Death Eater, and in the latter, Harry himself is on the cusp of expulsion from Hogwarts for charges incorrectly laid against him. It is stark, in both of these scenes, that neither Barty Jnr or Harry are supported by a legal advocate. Harry is saved at the last minute by Professor Dumbledore, who is able to articulately – and ultimately, successfully – argue the case for Harry’s innocence to the presiding Wizengamot.
Without said intervention, Harry would almost certainly have been expelled, just as Barty Jnr was convicted and imprisoned in what appeared to be a rushed and prejudiced hearing. The fact that the accused’s father – who harboured political ambitions and was looking to burnish his reputation – was the presiding authority in the trial would surely have been grounds for a mistrial, before one even considers the manner in which the hearing was conducted.
What both of these scenes demonstrate – especially for those learned in legal ways – is the inextricable need for effective law and order, as well as competent legal advocates. As these two ‘cases’ show, every criminal defendant is entitled to a proper defence, in accordance with constitutional or legislative requirements, and legal representation itself is a cornerstone of due process.
Access to justice remains a critical issue for the broader community, particularly those from low socioeconomic environments, as does understanding and appreciation of legal resources. Ensuring those in need can utilise legal services if and when required is paramount as a function of our liberal democracy. It is incumbent upon all lawyers and legal institutions, via pro bono work or other community support, to provide checks and balances, particularly on the legislative and executive branches.
This point is further underlined by a form of punishment worse than expulsion and life imprisonment without due process: the Dementor’s Kiss. Sirius Black was saved from such a fate (without trial) by Harry in Prisoner of Azkaban, but it is carried out in Goblet of Fire when Minister for Magic Cornelius Fudge orders the Kiss to be performed on Barty Jnr upon his re-capture.
Opinions on capital punishment will of course vary, depending on one’s political persuasion, but the implementation of such punishment without so much as a trial is undoubtedly cause for concern, least of all because of what constructive information can be gleaned in the course of a proper trial (as Dumbledore points out to Fudge) and most of all due to the possibility of a condemned person’s innocence (such as Sirius).
House elves and modern slavery
One of the more interesting B-plots throughout the series (from the legal perspective, at least) is the treatment of house elves by the wizarding community.
Numerous references appear in the series to the traditional ideas of hierarchy among magical beings, with non-wand carrying figures such as house elves occupying lowly, subservient positions in the magical community. For Ron, who has only ever known life as a wizard, buys into these ideas when it comes to house elves’ duties, albeit in a non-malicious way. To Hermione, whose parents are dentists in the Muggle world, such culture and mistreatment is abhorrent.
“You do realise that your sheets are changed, your fires lit, your classrooms cleaned, and your food cooked by a group of magical creatures who are unpaid and enslaved?” rages Hermione in Goblet of Fire.
Ron does eventually become more empathetic to the plight of house elves, culminating in his concern for their welfare in the moments before the Battle of Hogwarts. However, such an evolution only truly happens following his being witness to injustice in other scenarios, such as the Ministry of Magic’s targeting of certain witches and wizards in Deathly Hallows.
Australia has recently passed the Modern Slavery Act (2018) (Cth), which serves as an important step towards the eradication of modern slavery in the operation and supply chain of small and large Australian companies. It is estimated that as many as 15,000 persons are currently victims of modern slavery in Australia, including through forced marriage.
Many law students (and, indeed many lawyers) will best understand notions of slavery through popular culture and high school history classes, whereby lessons are taught about the brutal and cruel treatment of African-American slaves until emancipation under Lincoln. The plight of persons impacted by more modern enslavement methods, such as domestic service or in the sex industry, are not as well known, if at all.
And while the passage of legislation for businesses to publish annual statements on the steps they are taking to address modern slavery in their supply chains and operations is a crucial first step, lawyers and legal advocacy groups who have been pushing for such laws remain concerned about the lack of penalties for businesses in breach of the act.
Australian Lawyers for Human Rights, for example, said it was “disappointing” that the new act does not include civil penalties for failure to comply with reporting requirements, nor does it provide for an Anti-Slavery Commissioner, but it hopes that those issues will be reconsidered during the mandated three-year review of the legislation.
Such legislation is, of course, crucial in addressing injustices in society. But progress is sometimes only incremental, and thus legal professionals must remain have “constant vigilance” (as Mad-Eye Moody in Goblet of Fire would say) in not resting on laurels and continuously pushing for legislative change where needed.
‘Mudbloods’, racism and other forms of discrimination
“If you want to know what a man’s like, take a good look at how he treats his inferiors, not his equals,” remarks Sirius in Goblet of Fire.
Ron’s feelings on house elves may evolve over the course of the series, but one thing he is clear on from the outset is the treatment of witches and wizards not hailing from magical families, particularly their denigration as “mudbloods”.
This term is first thrust upon the reader in Chamber of Secrets, when Draco Malfoy hurls the insult at Hermione (Ron’s close friend and future wife). Both Ron and Draco’s families are among the so-called “Sacred Twenty-Eight” truly pure-blood families, an addendum noted by Rowling on her Pottermore fan site.
As a pure-blood magical being, Draco feels superior to the Muggle-born Hermione, and thus treats her as subhuman. “There are some wizards – like Malfoy’s family – who think they’re better than everyone because they’re what people call pure blood,” explains Rubeus Hagrid, both for Harry’s benefit and the reader’s. The term appears sporadically throughout the subsequent books, before culminating in Voldemort-controlled Ministry policy to round up persons not hailing from magical families.
While at its core the Harry Potter series is a young adult fantasy series showcasing a sympathetic male protagonist triumphing over evil, the books are also undoubtedly a commentary on evils of racial purification and the threat of a strictly homogenous society – in this case, in a magical parallel universe where themes such as power play an influence in the perpetuation of racism and mistreatment.
Twentieth century history is littered with examples of genocidal activities based on racial division, including the Final Solution and Rwanda in 1994. While of course providing sociocultural lessons for readers across the spectrum, those in legal education and practice can further infer the need for legislative frameworks that prohibit discrimination based on race – or any other matter, such as gender – and the unyielding importance of upholding those frameworks in order to maintain a just, fair and equal society.
In the specific Australian legal context, such thematic discussion on Rowling’s part gives pause for thought about our nation’s history of racism, most notably in the White Australia Policy and the subsequent need for legislation such as the Racial Disrimination Act (1975) (Cth). Politically, the books also offer perspective on the re-emergence of nationalist language in our parliamentary discourse and – in uglier manifestations – on social media.
Just as it was important for Ron to stand up to Draco when he insulted Hermione’s lineage, it is incumbent upon those with legal education and training to advocate for, establish and maintain societal frameworks through which racial division and tension can be not only discouraged and dispelled, but also codified as reprehensible in a modern, egalitarian community.
Creativity and innovation
In late October 2018, the Kolkata-based National University of Juridicial Sciences in West Bengal, India announced it was offering law students an elective subject called ‘An Interface between Fantasy Fiction Literature and Law: Special focus on Rowling’s Potterverse’. The elective, the University noted, would serve as a break from the orthodoxy of the legal curriculum and, more importantly, be an avenue through which students could think more creatively.
“In our current system, we simply tell students the black letter of law. [But] will they be able to apply pre-existing laws to situations that have never come up before?” Professor Shouvik Kumar Guha said to BBC.
“You can also see so many examples of how media is subverted by political institutions in the Potter books and see parallels in the real world. Rowling’s universe talks a lot about how legal institutions are failing in some scenarios.”
Prima facie, one may not see long-lasting value for legal practice in learning (or even reading) about Quidditch and sports law at Hogwarts, magical law enforcement via Wizengamot trials and the innocence or otherwise of those imprisoned in Azkaban. However, tapping into creative realms by way of reading fiction gives us insight into worlds we otherwise wouldn’t have access to, thereby allowing us to think more holistically and with increased imagination.
In the modern legal marketplace, innovation is thriving, and traditional workplace environmental structures are falling by the way side. Being able to tackle legal theory and practice in similarly innovative and novel ways (no pun intended) can only be a good thing.
Benefits of teamwork and open communication
Harry is a most stubborn character. Throughout the entire series, he thinks it best that he goes at it alone when facing dangerous situations, starting with his pursuit of the Philosopher’s Stone in book one and the cross-border journey to hunt down Lord Voldemort’s horcruxes in book seven. His insistence on being a lone wolf is not due to arrogance, but rather out of fear for the safety of those whom he loves. By the time Deathly Hallows rolls around, Ron and Hermione are attuned to and anticipate Harry’s nature, and all but shrug off his concern.
What Harry inevitably discovers, every time he sets off on an adventure, is just how much he needs and relies on his trusty companions, whether it be Ron and Hermione’s chess skills and critical reasoning respectively in Philosopher’s Stone, or their combat ability in Order of the Phoenix. That is, he learns the immeasurable value of teamwork. More specifically, he has to value Hermione’s far superior intellect and skill, and he must utilise Ron’s knowledge of the magical community which he himself has never experienced. Together, they are able to extrapolate what a three-pronged unit can do and use it to their advantage.
“We are only as strong as we are united, as weak as we are divided,” muses Dumbledore in Goblet of Fire, really hammering home the importance of teamwork.
In the same book, Harry learns the value of being able to ask for and accept help from others. As a school champion in the Triwizard Tournament, he faced three deadly challenges, from which he would not have emerged unscathed but for assistance from Cedric Diggory and Neville Longbottom, among others.
For law students and lawyers alike, the lessons about working together as a team and being able to communicate openly about your needs are not groundbreaking, nor are they convoluted. But in light of our well-established tendencies toward competitiveness, perfectionism and pessimism, it is necessary to seek reminders of the need to be collegiate and transparent.
Practice groups working on large transactions or royal commission public hearings must collaborate in order to achieve the most optimal result for clients and need to do so by playing to the strengths of each lawyer involved in the matter. For individual practitioners, especially those who are new to the workforce, the ability to speak up so as to better clarify a task at hand is essential for not only professional success, but also longevity.
While Harry’s recurring insistence on tackling tasks alone is borne from his stubbornness, and lawyers’ tendency to be stoic and not ask for help is often due to ingrained personality traits, the end result can be the same: without seeking the input of others, and communicating openly and honestly about our needs, we may not be able to achieve the outcomes both we and those whom we serve desire.
Mental health, stigma and resilience
Mental health issues played a significant role in my 20s, most notably with an 18-month bout of severe clinical depression and anxiety across 2011–13. Anyone – lawyer or otherwise – who has suffered from the deep, dark throes of such psychological distress will appreciate just how crippling and debilitating such ailments can be to one’s psyche and personal welfare.
In Harry Potter terms, serious mental health issues can feel like being hit with a Cruciatus Curse, which brings about immeasurable pain and suffering. However, the pain that one suffers with such issues is not merely emotional and psychological, but it can also impact upon us physically, as I discovered: I lost an unhealthy amount of weight when my wellbeing was at its lowest ebb, and the psychological trauma creates flow-on effects such as lethargy and uncontrollable crying.
Rowling famously said a few years back that the Dementors in the Harry Potter series embody the depression she suffered in the late 1990s, and for those who have experienced similar ailments, it proves a perfectly apt embodiment: a creature that literally sucks the happiness out of one’s soul, makes those around it feel cold and numb, and as if joy will never again return to the world.
But in the very same book (Prisoner of Azkaban) that the Dementors are introduced, so is a counter charm to ward off the effects of that dark creature: Expecto Patronum.
The Patronus Charm is so much more than a showcasing of Harry’s magical skill at such a young age. It is a rather outstanding metaphor for three lessons: one, that even the most overwhelming moods and struggles can be beaten if we persist; two, there is always light even in the darkest of moments; and three, our capacity to tackle that dark creature (the black dog, if you will) is founded in our innate, idiosyncratic strengths.
This third point is perhaps most pertinent for us as law students and lawyers. Casting a Patronus depends entirely on one’s abilities and its manifestation is unique to the spell-caster, thereby demonstrating that overcoming ill-health such as anxiety, depression and suicide ideation is, at least partly if not significantly, a responsibility incumbent upon us as individuals.
I have spent most of the last four years travelling across Australia and abroad, speaking to law firms and universities about the importance of grabbing the bull by the horns and figuring out what will work best for us all as individuals in proactively managing and combating mental health issues. I, for example, get enormous benefit out of team sports and reading books, but what works for me may not necessarily work for you. By taking the time to determine what course of action will be most beneficial, we put ourselves in the best possible position to be motivated and inspired to implement self-care as a non-negotiable aspect of our daily lives.
Stepping up in such as way and casting our own Patronus also means having to overcome any societal and self-stigma standing in our way. Stigma surrounds the utterance of Lord Voldemort’s name throughout the series, with Dumbledore, Harry, Sirius and Remus Lupin the only characters comfortable to say it out loud.
But, as Dumbledore advises Harry in Philosopher’s Stone, “Fear of a name increases fear of the thing itself”.
We in the legal profession have become much better at speaking openly about the prevalence, causes and effects of mental issues, but there is still a long way to go. Being honest both with ourselves and those around us about any issues we may be facing, no matter how trivial or significant, is imperative for us to ensure we do what is best for the sake of optimal wellness.
Finally, one must consider the importance of resilience, for in the words of Dumbledore, “It is important to fight, and fight again, and keep fighting, for only then could evil be kept at bay, though never quite eradicated.”
Our partners or supervisors in law firms are certainly not evils to be kept at bay, nor is the work we do as legal practitioners. But it is an inescapable truth that legal education and practice are environments that can and do breed mental health issues, maybe more so than any other industry.
As such, one must be resilient, by way of the aforementioned proactive self-care and navigating of stigmas. In the context of Harry Potter, this means learning to never give up, learning to tolerate change, stress, uncertainty and adversity, believing one can produce results, being motivated in all aspects of life, and developing and maintaining meaningful relationships.
Perhaps by virtue of the indescribable trauma he has suffered as a child, Harry – for all his faults – is an incredibly resilient character. Despite appearing, prima facie, to be grossly ill-equipped to handle the task of tracking down and destroying Voldemort’s Horcruxes in Deathly Hallows (even with the help of Ron and Hermione), he is in fact prepared by virtue of the fact that he is steadfast in his purpose, prioritises the safety of himself and his friends, never wavers from his values and is able to complete his mission by engaging in tasks one at a time.
Countless bloggers and public speakers have espoused the healing power of Harry Potter books, in that the deaths and subsequent grief experienced by characters such as Harry helps those readers deal with their own grief. Those same readers also cite the fact that Rowling’s series – despite depicting a fantasy world – are comforting and empowering in their relatability.
For me, it is slightly different. The Harry Potter series has, along with other preferred books in my life, offered escapism in moments when I have not just needed a break from the rigours of personal and professional life, but also during times when I have simply craved a familiar and indulgent intellectual stimulation.
But, more so than anything, Rowling’s writing reminds me that no matter the ups and downs of my mental health over the years, there is always joy to be found in my life and I will, unfailingly, have the ability to cast a spell out of my ill-health, so long as I can pick up a wand and do it.
“I think of life as a good book. The further you get into it, the more it begins to make sense.”
The Harry Potter series has been, and continues to be, personally and emotionally seminal for the next generation of lawyers now entering in Australia’s legal profession. And, from a vocational standpoint, the books help lawyers conceptualise legal theory and practice in the manner espoused by the above quote from American rabbi and author Harold Kushner.
While seemingly depicting characters and scenarios outside the literal and metaphorical realms of possibility, there are a legion of lessons from Rowling’s work for lawyers, both emerging and established. Its capacity to spark creativity and innovation, frame human rights concerns, illuminate the nexus between law’s existence and social harmony, and breed crucial social, personal and environmental traits is perhaps unparalleled with any modern literary experience.