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The Rule of Law Through
the Looking Glass
Mary Liston*
Abstract. This article explores how children's literature sheds light on common understandingsand
background assumptions about the Anglo-North American concept ofthe rule oflaw. Three popular
textsfrom children'sliterature-LewisCarroll'sAlice's Adventures in Wonderland and Through
the Looking Glass, Nortonjuster'sThe Phantom Tollbooth, andj.K. Rowlings Harry Potter
and the Order of the Phoenix--offer afamiliarbasisfrom which to considerthe socialimaginaryof
the rule oflaw.Each text acts as its own case study disclosing troublingdeficiencies in afictionalpublic
law order andprompting a considerationof the rule oflaw's compatibilitywith command and control
modes of rule, a reflection about its minimum moral content, and its relationshipwith substantive
conceptions ofjustice such as human rights discourses. The author argues that these three encounters
with fictionallegal orders contribute to the social construction ofthe rule of law as a politicalgood, u
public discourse, and a constitutive component of democraticciti{enship.
Keywords: Law and literature, children'sliterature, rule oflaw, democracy, Harry Potter, Phantom
Tollbooth, Alice in Wonderland
I. INTRODUCTION
The common occurrence of legal themes and characters in English fiction,
Northrop Frye observed, confirms that "'all respect for the law is a product of
the social imagination, and the social imagination is what literature directly
addresses. . ... 1 Following Frye, I will explore how children's literature
sheds light on common understandings and background assumptions about
the Anglo-North American concept of the rule of law. Three popular texts
from children's literature-Lewis Carroll's Alice's Adventures in Wonderland
Law &Literature, Vol. 21, Issue 1, pp. 42-77. ISSN 1535-685x, electronic ISSN 1541-26oi. © 2009 by The
Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press's Rights and Permissions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: 1o.i 25 /lal.2009.21.1.42
Liston • The Rule of Law Through the Looking Glass
and Through the Looking Glass,' Norton Juster's The Phantom Tollbooth,3 and
J.K. Rowling's The Order ofthe Phoenix4-offer a familiar basis from which
to consider the social imaginary of the rule of law. Here, each text acts as
its own case study disclosing troubling deficiencies in a fictional public law
order. The texts therefore indirectly present and reaffirm to children a set of
expectations about the way a political order does, does not, or should work.
These failings also induce the adult reader to reflect on his or her own knowledge and expectations about the rule of law. Lastly, the encounters of Alice,
Milo, and Harry with legal orders contribute to the social construction of the
rule of law as a political good, a public discourse, and a constitutive component of democratic citizenship.
II. THE RULE OF LAW IN LITERATURE
Before delving into the three texts, I will briefly situate the argument methodologically and offer a concise explanation of the concept of the rule of
law.
Children's literature includes books or stories produced for children that
will be read by children themselves, or read to children by another person,
usually an adult. One of the many themes children's literature explores, both
directly and indirectly, is that of power relations. Fairy tales, for example,
offer glimpses into the nature and use of parental power, whether this authority resides in monarchic, aristocratic, or peasant homes. These narratives often present parental power working in a brutal and coercive fashion
to intimidate and discipline children into compliance with societal norms and
conventions. 5 Since Victorian times, the genre of the public school narrative explicitly presents and often critiques the authority of teachers and the
power of educational institutions.' And nonsense literature often functions
as political satire, social commentary, and deconstructive critique of conventions. Indeed, as a form of intellectual play that hones linguistic competence,
nonsense literature requires for its meaning a clear contrast with the conventional. Because it has the "doubling effect" of being grounded in, yet also
in flight from, reality, it should be distinguished from accidental meaning
and random senselessness. Nonsense literature is therefore not the absence
of sense but, rather, "a clever subversion of it that heightens rather than destroys meaning" and exhibits its own contrasting "lawfulness." 7
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One common feature in these texts, then, is that they alert children to the
ever-present danger of power. The sources and uses of power are multiple,
and safe havens are not guaranteed: parents, teachers, and public officials can
all misuse their authority, and unjustly or unthinkingly harm children How
such danger can be cleverly avoided, resourcefully confronted, or skillfully
resolved becomes a central struggle for the child protagonists and, in modern
literature, is a struggle that does not have a guaranteed happy ending.9
The kind of authority I examine is legal authority in three classics of children's literature, an authority that takes both its shape and purposes from the
political order in which it is embedded, and that obtains its legitimacy and validity from a commitment to the rule of law. In these texts, the protagonists are
not only little selves, they are also little citizens. My hope here is that by taking
texts from popular literature for so-called second-class citizens more seriously,
legal and political theory can engage with a more contextualized understanding of the rule of law and practices of democratic citizenship. Indeed, children
potentially represent a uniquely inclusive category of subjectivity that all can
claim by virtue of being or having been children. Moreover, children's literature often presents the child protagonist as situated, and therefore neither fully
determined nor fully free: child protagonists are a "never fully constituted
Foucauldian subject, who must always be constructed by social forms outside
the self; but neither is the victimized child represented or imagined as free of
these social forms. Rather ... individual and social claims are, for a time at
least, simultaneously endorsed."'" Alice in Wonderland,the "spiritual volcano
of children's books,"" led the evolution of children's books from an older
didacticism to the modern period of invention and flexibility that respected
the creative autonomy of children's minds. Modern children's literature continues to reflect, in this more flexible manner, the child's engagement with
the larger world of rules, relationships, limitations, and morality, and is still
"fundamentally occupied with portraying how the world is ordered-both
morally and hierarchically."'
2
In contrast to Desmond Manderson, 3 who argues that children's literature
is a source of law, or Ian Ward, 4 who examines the extent to which children's
literature is jurisprudence, my more modest approach considers how these
texts, as cultural artifacts, engage the political and legal imaginary of readers
in order to illuminate aspects of the rule of law as a moral discourse and an
evolving (or degenerating, as the case may be) historical practice in a political
community. In other words, these texts make partially evident the constitutive
Liston • The Rule of Law Through the Looking Glass
building blocks and shared expectations concerning the concept of the rule
of law by highlighting the incongruity between form and content, or by laying bare the essential structure through the amplification of flaws and weaknesses. Moreover, without knowing it, readers are confronted with problems
in literature that have analogues in philosophical debates about justice and the
very nature of law.
The concept of the rule of law possesses many definitions and meanings.
Despite philosophic contestation about the nature and scope of the rule of
law, overlapping agreement exists concerning several features: the desirability
of legal and political restraints on the exercise of public power by state actors; the necessity of practices of procedural fairness or due process as part
of any conception of justice; the recognition of the goodness of order over
disorder and chaos for human societies; and, historically emerging relations
to discourses of rights and dignity. 5 In most conceptions of the rule of law,
institutional practices of law creation and application must meet certain criteria or standards of certainty, clarity, intelligibility, prospectivity, consistency,
and publicity-standards that interanimate each other in order to maintain a
functioning legal system. One overarching purpose of a legal order is to be
capable of guiding the behavior of all legal subjects, both citizens and officials.
Guidance, in turn, furthers accountability and compliance. Moreover, the political order merits respect from citizens because the liberties and equalities
necessary for individual autonomy and effective citizenship are recognized,
realized, and guaranteed--often, but not always, in a bill of rights-through
the legal system. These procedural standards aim to constrain exercises of
public power in order to prevent arbitrary actions-what John Rawls 6 terms
"justice as regularity" as a component of justice as fairness 7 thus placing effective limits on the discretion of ministers, administrators, legislators, judges,
and the police. The rule of law also regulates government by ensuring that its
different institutional parts and persons adhere to their allotted constitutional
functions and boundaries through the doctrine of the separation of powers or
other forms of dividing public power. Once chosen by a political community
as a principle of government, the rule of law acts as a distinctive legal and
political ideal that entails a constitutional framework as well as an open set
of public practices. Lastly, because it is a politico-legal ideal or aspiration, the
constitutional discourse of the rule of law reflexively participates in various
conceptions of substantive justice. But, since it is also an ideal, the rule of law
can of course fail in practice.
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Each of the three texts prompts a consideration of the rule of law's compatibility with command and control modes of rule, a reflection about its
minimum moral content, and an inquiry into its relationship with substantive
conceptions of justice such as human rights discourses. What becomes clear is
that order and stability, though essential goals of the rule of law, cannot be decoupled from their relations to other constitutive principles and values. Such
a decoupling would transform a rule of law order from one that considers the
legal subject the center of law and politics to an authoritarian order that places
the sovereign or the system at the political heart. As I will argue, Alice in Wonderland reveals the mistake of understanding law solely as the "rules of the
game" within a regime characterized by absolute sovereignty. The Phantom
Tollbooth discloses the dangers of valuing order and stability over responsive
regulation. And, Order of the Phoenix illustrates how we can lose responsible
rule when governments sacrifice their commitment to lawfulness, democratic
accountability, and human rights.
Ill. ALICE AND THE ABSOLUTE SOVEREIGNS
Play Fair and Fair Play
Outside of Kafka's writings, Lewis Carroll's two Alice books may provide
the starkest examples of deficiencies in a world of rule-making. In each book,
Carroll's Alice leaves her middle-class Victorian existence to enter the bizarre
worlds of Wonderland and the Looking Glass where the daily laws of her former existence do not apply. The topsy-turvy new rules, Alice comes to realize,
are a curious admixture of the rules of chess, the rules of battle, and the rules
of etiquette, all operating within a political system ordered by the concept
of absolute sovereignty and a command model of law. Within this absurdist,
absolute sovereignty, Alice encounters a variety of authority figures, most of
whom are themselves childlike, arbitrary, irresponsible, egoistic, and generally mad-mad in the sense of extremely angry, though most of the characters would qualify as either eccentric or insane, too. In fact, Wonderland is an
inverse rule-of-law world-not quite an evil twin, but more like a completely
deranged sibling of a properly functioning legal order. Fortunately for Alice,
she is not a typical Victorian child, for she is also a child knight errant who is
both seen and heard and who can speak her mind without being asked first.
When the Red Queen admonishes Alice that she should "Speak when you're
Liston - The Rule of Law Through the Looking Glass
spoken to!" Alice replies: "But if everybody obeyed that rule ... and if you
only spoke when you were spoken to, and the other person always waited for
you to begin, you see nobody would ever say anything.... ," Throughout the
two books she manifests a pragmatic and engaged attitude towards learning
and mastering the rules in order to know how to play the game.
In some respects, Wonderland can be perceived as an authoritarian model
of a legal order. Law takes the form of command accompanied by expectations from the sovereigns of full compliance and unthinking obedience from
their subjects. These expectations, however, are rarely fulfilled by Wonderland's subjects. What Alice finds there is a world with more than one sovereign, each thinking she is absolute (for the kings are ineffectual), coupled
with a social environment not unlike the war of all against all in the Hobbesian state of nature-if the state of nature were simply a game. On the other
hand, Wonderland exhibits anarchic tendencies and a recurring, dissolving
sort of instability. 9 The Looking-Glass world, on the third hand, contains an
extreme form of determinism, as all residents are subject to the authoritative
rules of chess, rules that they have not participated in making, and have no
hope of changing.
The reader can see the effects of this system of rule in the ridiculous game
of croquet that Alice is compelled to play. This scene highlights how games
can become unfair through erratically applied rules, as well as how games can
be made unplayable because of bad structure. The croquet game is "like" the
idea of its real-world counterpart but the combination of living cards as hoops,
flamingos as mallets, and hedgehogs as balls poses insurmountable problems
in managing the living parts, making for a most ineffective game. Deficiencies, however, run deeper than the nature of the game's tools, for the unplayability of the croquet game results from several key failings in its content and
"spirit": the atomization of the players leading to the disorganized fashion in
which everybody runs around; the lack of a unifying intent to the game; the
penalty of death for missing one's turn; and the fact that nobody really wants
to play with anyone else. This lack of shared spirit makes the croquet game
one hardly worth the same name:
The players all played at once, without waiting for turns, quarrelling all the
while, and fighting for the hedgehogs; and in a very short time the Queen was
in a furious passion, and went stamping about, and shouting "Off with his
20
head!" or "Off with her head!" about once in a minute.
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Despite having rules, then, the croquet game lacks shared meaning, internalization of the rules, and effective coordination as an end result. Concepts
of reciprocity, proportionality, and fairness do not inform the basic activity
of play.
Moreover, if the reader is attending to the particulars, she would notice that the game lacks several of the more legalistic components of rule-
making associated with the rule of law and legal validity. The game has no
prohibitions against impossible laws, such as playing with flamingo mallets;
it also applies disproportionate punishments, exhibits a general lack of clarity and constancy, contains retroactive laws and modes of promulgation,
and displays incongruity between declared law and official action. This last
flaw, incongruity between declared law and official action, inadvertently
acts beneficially, since the threat of beheading never seems to be enforced.
All the players know that execution is an idle threat for, as the Gryphon
remarks to Alice, "It's all her fancy, that: they never executes nobody, you
know... "21
Together all of these features exemplify arbitrary rule-making in the political community governed by the absolute, authoritarian, and capricious Red
Queen. Such a sovereign could not design or implement a legal system that
possesses integrity or consistency, or treats its legal subjects with even a modicum of fairness. As legal theorist Lon Fuller remarks:
To preserve the integrity of a system of legal relations set by advertence there
is need for a supplementary system of rules for healing the effects of inadvertence. There is a close parallel here to the problem of retrospective laws. A
system of law composed exclusively of retrospective rules could exist only as a
grotesque conceit worthy of Lewis Carroll or Franz Kafka.... Rules designed
[to correct for inadvertence] derive not only their justification, but their very
meaning from their function as an adjunct to a larger system of rules intended
to be taken as a guide for conduct.22
And, in fact the croquet game is not merely a game but, rather, an explicit
test of political loyalty to the Red Queen. This insight leads Alice to conclude
in confidence to the Cheshire Cat:
"I don't think they play at all fairly," Alice began, in a rather complaining
tone, "and they all quarrel so dreadfully one ca'n't hear oneself speak
and
they don't seem to have any rules in particular: at least, if there are, nobody
Liston • The
Rule of Law Through the Looking Glass
attends to them-and you've no idea how confusing it is all the things being
alive...
"How do you like the Queen?" said the Cat in a low voice.
"Not at all," said Alice: "she's so extremely-" Just then she noticed that
the Queen was close behind her, listening: so she went on "-likely to win, that
it's hardly worth while finishing the game."23
The deficiencies in the unknowable, arbitrary, and illogical rules that Alice
encounters and has applied to her serve to emphasize what the qualities a
sound rule-governed system should possess. While one goal of playing chess
is to win, one different and significant goal of legal rules in a modern society
might be "the effective realization of morality in the actual behavior of human
beings." 24
Legal rules that offer guidance for human interaction under a system of
governance should have some element of reciprocity as an organizing principle to them. Unidirectional and top-down rule-making processes and exercises of authority, therefore, would not qualify because successful law depends
on the ideally "voluntary collaboration between the citizen and [his] government, as well as upon a coordination of effort among the various agencies of
government concerned with the making and enforcing of law. '2' The combination of uncoordinated, competing absolute sovereigns and rule-governed
game-playing in Wonderland gives us a picture of law as a unidirectional projection of authority. But because it is Wonderland, the one-way projection of
authority is rendered relatively ineffective and only serves to emphasize the
ever-present anarchy of the political "order."
Recognition and Rule-following
Reciprocity implicates law as a discursive system, too. Most of Alice's conversations with the Wonderland residents do not serve as models of ideal
communication-Habermasian or otherwise-since they generally result in
confusion, misdirection, evasion, misrecognition, insult, and anger. Orders
and directives abound ("Everybody says 'comeon!' here," thought Alice...
"I never was so ordered about before, in all my life, never!" 26), usually in
the mouths of sovereigns who demand instant and usually detrimental results
(e.g., "Off with their heads!"), or as logically clear but interpretively ambiguous instructions on external objects (e.g., "Drink me."). Knowledge of purposes, effects, or reasons is completely absent.
49
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Linguistic exchange in Wonderland commonly takes the form of maddening riddles and cryptic conclusions. As the Red Queen remarks to Queen
Alice about the White Queen, a remark that could apply to almost every
other character: "Your Majesty must excuse her ...she means well, but she
ca'n't help saying foolish things, as a general rule.""z This tendency produces untrustworthy authority figures and irresponsible decision-makers. If
legal and political decision-makers in the "sensible" world were to take this
approach, we should expect to have them provide answers to our questions
in the following form: Q: Why is a raven like a writing desk? A: Because
there is a "b" in both. 8 Though logically correct, the Mad Hatter's answer
to the riddle is not a genuine response or justification; it is a communicative
disconnect. And, if we were to follow Alice in remarking, "I don't believe
there's an atom of meaning in it..." we might also anticipate something
like the King of Hearts' reply: "If there's no meaning in it ...that saves
us a world of trouble, you know, as we needn't try to find any."29 Stripped
of both shared meaning and the desire to share meaning, the characters in
Wonderland certainly mean what they say, and they certainly say it meanly,
but they don't offer much signification in return. Within this Hobbesian
system of verbal sovereignty, not even a minimal sense of reciprocity requires them to do so.
Alice's famous conversation with Humpty Dumpty provides the best discursive insight into the perils of unconstrained and unresponsive sovereignty.
Their conversation first amounts to an unfortunate exchange of insults-unintended on Alice's part, intended on Humpty Dumpty's and it only barely
improves after several minutes of talking to each other. Indeed, it dawns
on Alice that they aren't really having a conversation at all. For one thing,
Humpty Dumpty never directly says anything to her face and, for another,
there is more concern with form than content in their talk, and even the form
has little to do with the spirit of dialogue: "'In that case we start afresh,' said
Humpty Dumpty, 'and it's my turn to choose a subject-.' ('He talks about
it just as if it was a game!' thought Alice.)" 3 Here we have a mean verbal
exchange with no dialogic depth. After exchanging preliminary views about
cravats and unbirthdays, Humpty Dumpty expounds on his approach to language, which can be summed up in his well-known nominalist conclusion to
Alice's query about whether one can make words mean so many different
things: "The question is ...which is to be master-that's all."31 Humpty's
statement echoes the Red Queen's earlier direction to Alice: "I don't know
50
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Rule of Law Through the Looking Glass
what you mean byyour way ... all the ways about here belong to me.. ."
32
Humpty Dumpty applies with full force the principle of absolute sovereignty
to language-he possesses the unconstrained power to define exact meaning,
nothing more and nothing less than what he intended. Indeed, Alice comes
to realize that language has a power of its own for, as W. H. Auden wrote:
"In both worlds, one of the most important and powerful characters is not a
person but the English language. Alice, who had hitherto supposed that words
33
were passive objects, discovers that they have a life and will of their own."
The effect is that their conversation is drained of any reciprocity and simply
becomes a game replete with checks, trumps, and counters and whose raison
d'9tre becomes mastery and certain victory.
The exchange with Humpty Dumpty is one example among many that
raise questions about the relationship between recognition and rule-following.
From the very start Alice confronts the question "Who areyou?"34 and the
story follows Alice's efforts to find out her identity in Wonderland and also to
obtain proper recognition for who she is as a person. As Alice remarks at the
beginning of her journey through the Looking-Glass world: "It's a great huge
game of chess that's being played-all over the world-if this is the world at
all, you know. Oh, what fun it is! How I wish I was one of them! I wouldn't
mind being a Pawn, if only I might join-though of course I should like to be
a Queen, best."3 The rules of etiquette, for example, implicitly contain a recognition of individual worth, a social estimation that can also be manifested in
legal recognition and formal statuses:
"I shouldn't know you again if we did meet," Humpty Dumpty replied in
a discontented tone, giving her one of his fingers to shake: "you're so exactly
like other people."
"The face is what one goes by, generally," Alice remarked in a thoughtful
tone.
"That's just what I complain of," said Humpty Dumpty. "Your face is the
same as everybody has-the two eyes, so-" (marking their places in the air
with his thumb) "nose in the middle, mouth under. It's always the same .... ,,36
In Wonderland and the Looking-Glass world, Alice has face value, but
lacks equal moral worth, and her subsequent inferior ranking is both the product of the rules and the reflection of others' judgments. There is, moreover,
no guarantee that a positive estimation of her worth will be "institutionalized"
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permanently or that her worth will improve the more she masters the game
and therefore receive the benefits of membership (such that they may be in a
nonsense world). It is a narrow view of an already thin formal equality, quite
impoverished and made horrible by Humpty Dumpty's view of subjects as insignificant objects, formally equal in name (because, as the Gnat says to Alice,
"What's the use of their having names ... if they wo'n't answer to them?" 37),
but not in dignity.
Rules, of course, are not neutral when it comes to the deployment of power.
The rules of chess, for example, starkly illustrate the ascription and distribution of widely differing powers to the different pieces. A certain formal equality obtains in the sense that all pieces are recognized as full participants in
the game who must all obey the given rules, but some pieces have the "lion's
share"38 of the power and, as passive objects, none of them have participated
in making the constitutive rules that govern their existence and constrain their
moves on the board. Lon Fuller notes that the function of status is a difficult
problem for law, saying that "[iun a somewhat paradoxical sense even the essential social rigidities must maintain themselves, not simply by being there,
but by pressing actively for recognition."39 Status as social power reaches its
most absolute form in juridical right, but the legal system struggles to balance such rigidity with the flexibility that active recognition continuously demands. In games, however, the pieces and the players, unlike Alice, do not
actively press for recognition or independently and consciously consider how
to change their status. Alice is no fool, and when she sets out on the terrestrial board as a pawn she expresses the desire to become a queen. And why
shouldn't she? In Wonderland, when autonomy appears solely in the guise
of absolute sovereignty, would any self-respecting and thinking chess piece
want to remain a pawn for the entire game? On this point, Alice perceptively
remarks to the White Knight, "I don't want to be anybody's prisoner. I want
to be a Queen."4
The question of Alice's status presents a long-term puzzle for the characters in Wonderland. In the first book, she cannot be properly valued or ruled
because, unlike decks of cards, she is "one of a kind," an individual, rather
than ranked solely as a member of a suit. She is not part of that general class to
which the game can assign status and therefore regulate. Moreover, she is perceived as not just an outsider to the game but as an outsider, a foreigner, even
a kind of "outlaw" in Wonderland. The characters she encounters certainly
view her with suspicion as such. Near the end of her exchange with Humpty
Liston • The Rule of Law Through the Looking Glass
Dumpty, she asks him to explain the meaning of the poem "Jabberwocky"
and so he does. Following his lead and logic, Alice begins to master the meaning of the language used in the poem and proves that she has the capacity to
function as a regular resident in the Looking-Glass world; in other words, she
achieves "par."
In the second book, which centers on the game of chess, Alice starts off as a
lowly pawn but eventually achieves the highest status. Alice becomes a queen
when she reaches the eighth square-like many newcomers, she doesn't quite
understand how and why-and then must undergo a rigorous -examination"
by both the Red and White Queens in order to ensure her "suit-ability" for
the role. She passes and therefore achieves equal rank with the two female
sovereigns, though they each display a constant inclination to elbow and
squeeze her out of place. On the politics and injustices of elbowing, Fuller
thoughtfully writes:
When we use our fists we use them for a definite purpose, and we are answerable
to others and to ourselves for that purpose. Our elbows, we may comfortably
suppose, trace a random pattern for which we are not responsible, even though
our neighbor may be painfully aware that he is being systematically pushed
from his seat. A strong commitment to the principles of legality compels a ruler
to answer to himself, not only for his fists, but for his elbows as well. 4'
Wonderland is a world of violence, fisticuffs, and fear but it is the constant elbowing that best illustrates the need for that kind of accountability and
constraint. Not to overstretch the connection, it is, however, significant that
Lewis Carroll was interested in the kind of inequality produced by political
rules. As a mathematics professor, Carroll was preoccupied with early forms
of game theory, which he applied to the real world of electoral politics and
democracy. His concerns grounded his work on voting theory, proportional
representation, and reforms aimed at reshaping the British electoral system
to better serve, albeit imperfectly, the egalitarian representational goals of democracy.42
The Rule of Law, Not the Law of Rules
Wonderland contains three main rule-governed systems that attempt to regulate behavior: etiquette, games, and a kind of public law (chiefly criminal,
but also constitutional) voiced by sovereigns. In Wonderland, unlike in the
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Looking-Glass world of chess, no one rule-system dominates. Legal plurality obtains and there is no fundamental rule of recognition that provides a
source pedigree or an overarching lexical ordering to them. The rules of etiquette constitute an underlying and unwritten code that Alice comes to learn
through observation, questioning, and imitation. The rules of games are predetermined and outside of Alice's control, and constitutionally determine the
kinds of powers accorded to the players. Although the rules of public law are
publicly proclaimed, the manner of their creation and promulgation does not
satisfy the procedural requirements of the rule of law. Consider, for example,
Alice's outraged reaction in the first trial scene to the "irregular" rule-making
engaged in by the King of Hearts:
this moment the King, who had been for some time busily writing in his
note-book, called out "Silence!", and read out from his book, "Rule Forty-two.
At
All persons more than a mile high to leave the court."
"I'm not a mile high," said Alice.
"You are," said the King.
"Nearly two miles high," added the Queen.
"Well, I sha'n't go, at any rate," said Alice: "besides, that's not a regular
rule: you invented it just now."
"It's the oldest rule in the book," said the King.
"Then it ought to be Number One," said Alice.
The King turned pale, and shut his note-book hastily. "Consider your
verdict," he said to the jury, in a low trembling voice.43
As this exchange between Alice and the King of Hearts intimates, Wonderland is deficient in all of the generally agreed-upon characteristics of legality
that assist in underwriting our obligation to obey the law. Rules that are secret,
not public; come into existence only after one acts; unintelligible; contradicted
by other rules in the same system; command the impossible; and change every
minute are to be considered arbitrary by virtue of their very form and mode
of operation. Moreover, powers that are not effectively separated, such as here
where the executive and judiciary are fused tyrannically in monarchical persons, show a propensity to lead to abuses of power. Obedience to these sorts
of law is as futile an act of hope as casting a vote that will never be counted in
an electoral system.44 Furthermore, most of the Wonderland public law rules
emerge spontaneously, apply retroactively, and communicate irrational or unreasonable content. The frustration of reasonable expectations is made starkly
Liston • The Rule of Law Through the Looking Glass
visible in the similar exchange between Alice and the White Queen concerning
the optimality of "forward-looking" memory. When asked by Alice what sorts
of things she remembers best, the White Queen replies: "'Oh, things that happened the week after next,"' in a careless tone. "'For instance ... there's the
King's Messenger. He's in prison now, being punished: and the trial doesn't
even begin till next Wednesday: and of course the crime comes last of all. '' '4'
When Alice points out that this situation would be a problem if the Messenger
didn't commit the crime and, even more so, if he were punished for a crime he
actually didn't commit, the White Queen pedantically and contrarily replies
that it would be all the better morally for a person to be punished for wrongs
that he in fact didn't commit as that would ensure that his "crime" never happened at all no matter what chronology is involved.
The angry, violent, and capricious rules do suit the Wonderland inhabitants, but they don't agree with Alice, leaving her fit to be tied:
".... Let the jury consider their verdict," the King said, for about the twentieth time that day.
"No, no!" said the Queen. "Sentence first-verdict afterwards."
"Stuff and nonsense!" said Alice loudly. "The idea of having the sentence
first!"
"Hold your tongue!" said the Queen, turning purple.
"I wo'n't," said Alice.
"Off with her head!" the Queen shouted at the top of her voice. Nobody
moved.
"Who cares foryou?" said Alice (she had grown to her full size by this time).
"You're nothing but a pack of cards."
At this the whole pack rose up into the air, and came flying down upon her;
she gave a little scream, half of fright and half of anger, and tried to beat them
off, and found herself lying on the bank, with her head in the lap of her sister,
who was gently brushing away some dead leaves that had fluttered down from
the trees upon her face.'
Alice's real-world statement "trumps" the scene and causes the Wonderland world to implode. But her defiant question "Who cares for you?" should
give pause for reflection that all systems of order require care for their fidelity
and efficacy over time. The rules of the game in Wonderland, however, do not
provide any "buy in" to care because Alice will never be properly recognized
or ruled there:
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"Thinking again?" the Duchess asked, with another dig of her sharp little
chin.
"I've a right to think," said Alice sharply, for she was beginning to feel a
little worried.
"Just about as much right," said the Duchess, "as pigs have to fly; and the
m-But here, to Alice's great surprise, the Duchess's voice died away, even in
the middle of her favourite word "moral"....47
In Through the Looking Glass, Alice ultimately becomes co-sovereign with
the Red and White Queens. But the sharing of this kind of sovereignty cannot
endure and the game ends chaotically and disastrously. The dissolution of the
banquet being held in Alice honor follows her exclamation "'I ca'n't stand this
any longer!"' 4 She then pulls the laden tablecloth off the dinner table, causing
general chaos, and the Red Queen dwindles in size to become one of Alice's
pet kittens.
When Alice reaches her full size again, she reaffirms her desire not to be
part of the Red King's dream ("Only I do hope it's my dream, and not the Red
King's! I don't like belonging to another person's dream..." 49 ). Alice has experienced the deficiencies of absolute sovereignty as a system of governance.
And she has come to know that the rules of Wonderland will never allow
her to realize either her dignity or her equal moral status. The potentially
enlightening aspects of Alice's adventures in Wonderland are driven home
at the end of each book. At the end of the first book, Alice's sister imagines
Alice as a grown woman telling her own children the tale. At the end of the
second story, Alice returns to the Looking-Glass Room where she started off
scolding and bullying her black kitten (who turns into the Red Queen) for
getting into "mischief." There, she had complained to the kitten's mother
that the older cat hadn't taught her kittens better manners, and Alice felt compelled to spell out the kitten's faults along with the appropriate punishments.
Depending on Alice's capacity to reflect on her experience, she might find
something of value she could use to reshape her approach not only to caring
for her pets, but to parenting her own future children. Because of the disjuncture between expectations about and the operation of rules in Wonderland,
the reader could consider the difference in theory or in practice between the
rule of law and a rule-governed game. Though Carroll didn't "moralize"
Alice's adventures, one possible morally laden insight from her story is that
Liston • The Rule of Law Through the Looking Glass
the success of the rule of law equally and radically depends on the energy,
intelligence, and conscientiousness of those persons who conduct it, as well
as those who comply with it.
IV. MILO AND UNRESPONSIVE
REGULATION
Neither Rhyme nor Reason
The Phantom Tollbooth, like the Alice books, begins with a very bored child.
Milo is a preteen whose apathy and lethargy know no bounds until one day he
receives an anonymous package containing a magic turnpike tollbooth, a map,
a book of traffic rules, and an instruction manual. He takes his toy electric car
(a present with which he previously was too bored to play), goes through the
turnstile to the Kingdom of Wisdom in the Lands Beyond, and commences
his journey in a place called Expectations, intending to reach Dictionopolis,
the city of words. Milo's journey soon becomes no mere car trip to a fantastic
land. Eventually he takes on an arduous quest to unite the two cities of Dictionopolis and Digitopolis (the city of numbers), each one ruled by a son of
the kingdom's founder.
Milo appears as another child errant, but his quest does not mirror the
frustrating and perhaps pointless adventure that Alice had. He, in contrast,
is given the task of reuniting the Kingdom of Wisdom, which is divided
between two feuding brothers. Well before Milo's arrival, King Azaz the
Unabridged, ruler of Dictionopolis, and the Mathemagician, ruler of Digitopolis, became estranged following a period of competition and distrust focused on the dispute over whether words or numbers should be considered
more important than the other. Unable to agree between themselves, they
took their quarrel to their two foundling sisters, over whose care they were
entrusted after their father's death. The two Princesses, Sweet Rhyme and
Pure Reason, were loved by all in the Kingdom because of their beauty, gentle ways, and ability to settle all controversies fairly and reasonably. The two
brothers relied on their sisters' judgment in this matter, but were thwarted
in their attempts to dominate each other for, after due consideration, Rhyme
and Reason declared words and numbers to be equally important. Able to
agree only about their shared anger over their sisters' judgment, King Azaz
the Unabridged and the Mathemagician banished Rhyme and Reason from
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the Kingdom of Wisdom to the Castle in the Air in the Mountains of Ignorance, where they remained alone and guarded by demons. Milo's adventure
becomes a mission to rescue the Princesses and bring them back to the Kingdom, thereby reconciling the conflicted polity.
Rhyme and Reason's exile causes several unforeseen and unwanted effects. Though words, meanings, numbers, and logic continue to exist, good
expression, good sense, and good judgment all fall by the wayside. Neither
does Anarchy prevail, for the Kingdom of Wisdom still operates under orders, rules, and regulations, but their application, interpretation, and enforcement take bizarre turns and become a kind of nonsense similar to that found in
Wonderland. In effect, the art of governance has been lost, with its different
parts distributed among the warring factions within the Kingdom. Because
of this disaggregation, those in power and their subordinates have become
detached, ineffective, and in many cases dangerous.
In Dictionopolis, for example, Milo meets four types of characters who are
literally captivated by words without rhyme or reason. Outside the city limits
in Expectations, he first meets the Whether Man who says everything three
times and (given his name) cannot directly answer any of Milo's questions
about what he should expect or provide guidance about where he should go.
He later meets the five royal advisors to the King, but their words provide no
counsel because they, as bizarre types of "yes-men," spend most of their time
responding to each other's comments with synonyms for each of their words.
And after he and his watchdog companion, Tock, are imprisoned for disrupting the local marketplace of words, he meets the "Which" named Faintly Macabre, King Azaz's great aunt, who was formerly in charge of choosing which
words could be used for which occasions. She tells them that she is in prison
because she noticed that people had become wasteful with their words, using
too many for even the simplest of statements. She became both power-hungry
and mean in response, giving people fewer and fewer words until nobody
could speak or write at all. King Azaz became infuriated with her and locked
her in the prison-a life sentence unless Rhyme and Reason are returned to
the Kingdom.
Officer Shrift is an equally disturbing example. He begins his investigation
into the collapse of the marketplace of words by declaring everyone guilty,
and follows this declaration with a series of irrelevant questions leading to the
conclusion that Milo and Tock are individually guilty of multiple ridiculous
crimes when they had only, and inadvertently, knocked over the market stalls.
Liston • The Rule of Law Through the Looking Glass
He subsequently pronounces a sentence of six million years in prison where,
rumor has it, their existence will be quickly forgotten. Such a possibility lends
a whole new meaning to the punishment of arbitrary detention and the absence of habeas corpus as a legal remedy.
Digitopolis operates with few discernible differences. Here Milo first
encounters the Dodecahedron, a twelve-faced character, who explains to
Milo that everything in Digitopolis is named for what it is and then wonders
if everyone with one face is named Milo. In tones reminiscent of Humpty
Dumpty, the Dodecahedron finds Milo's system of naming impossible to
understand and suggests that it would be impossible to add if the numbers
all had their own names and one had to do the sum of "Robert plus John."
When Milo points out the silliness of this, the Dodecahedron replies that "as
long as the answer is right, who cares if the question is wrong?"5 thereby
indicating a preference for correct results rather than appropriate processes,
an inclination that mirrors the prevailing attitude in the kingdom. The Dodecahedron takes them to the numbers mine, where digits are cut from the
rock like gems, and then to meet the Mathemagician, who turns out to be
as curious a figure as his brother King Azaz. Instead of a banquet of halfbaked ideas that he feasted on in Dictionopolis, Milo dines on subtraction
stew (which makes him hungrier rather than fuller) and encounters the literal
logic of the numerical wizard. Milo informs the Mathemagician that King
Azaz has agreed to release the Princesses, but the Mathemagician will not
concur on a point of consistency-he will not agree because he always disagrees with Azaz-unless Milo can prove that both he and the King have
ever agreed. Milo meets the challenge by pointing out that both the King and
the Mathemagician have in fact agreed to disagree and the wizard, not able
to live with contradiction, accepts his defeat and agrees to assist Milo. One
could say that it is only at this point-the formal recognition of an agreement to disagree through an informal process of dispute resolution-that
the rule of law makes its introduction into the conflicted polity.
Ludicrous Laws
Other cities in the Kingdom of Wisdom fare no better. The twin cities of
Reality and Illusions have both ceased to exist. While Illusion was always a
mirage, the residents of Reality decided that things would be more efficient if
they moved as quickly as possible, not bothering to stop and appreciate things
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along the way. Being taken for granted, the city consequently withered away,
becoming invisible without its inhabitants even being aware of the transformation. The citizens of Reality, however, are exactly like the rest of the residents of the Kingdom, for they too are rather passive and pliable subjects who
live under a constant funk in the land they call the Doldrums:
"Allow me to introduce all of us," the creature went on. "We are the Lethargarians, at your service."
"I'm very pleased to meet you," said Milo, not sure whether or not he was
pleased at all. "I think I'm lost. Can you help me please?"
"Don't say 'think,"' said one sitting on his shoe, for the one on his shoulder
had fallen asleep. "It's against the law." And he yawned and fell off to sleep, too.
"No one's allowed to think in the Doldrums," continued a third, beginning
to doze off. And as each one spoke, he fell off to sleep and another picked up the
conversation with hardly any interruption.
"Don't you have a rule book? It's local ordinance 175 389-J."
Milo quickly pulled the rule book from his pocket, opened to the page, and
read, "Ordinance 175389-: It shall be unlawful, illegal, and unethical to think,
think of thinking, surmise, presume, reason, meditate, or speculate while in the
Doldrums. Anyone breaking this law shall be severely punished."
"That's a ridiculous law," said Milo, quite indignantly. "Everybody thinks."
"We don't," shouted the Lethargarians all at once.
"And most of the timeyou don't," said a yellow one sitting in a daffodil.'
While the ridiculous laws in the Kingdom of Wisdom might lack the evidently "brutal pointlessness"52 of those in Wonderland, they do achieve a
similar effect: to hinder the thinking subject from considering the merits of
the rules that govern him or her. On the other hand, the rules in The Phantom
Tollbooth are hardly lethargic in their force as they exhibit an overtly violent
purpose, which is to shut down thinking completely either in the interests of
order (as with the Lethargarian enforcers in the Doldrums above), or logical
exactitude (as in Digitopolis), or the commodification of meaning (as in Dictionopolis), or efficiency (as with the residents of Reality).
To take another example, consider Ordinance 574381-W: "In the Doldrums,
laughter is frowned upon and smiling is permitted only on alternate Thursdays.
Violators shall be dealt with most harshly. 5 3 Though even he would have to
admit that in his former life he did not spend much time in hard thought, Milo's
Liston - The Rule of Law Through the Looking Glass
indignant response to these ordinances shows his belief that because these
laws require the impossible, they contradict what it means to be fully human.
These laws, however, do not require the impossible with some laudable but
ill-thought motive of furthering human capacities; rather, they seek regularity,
compliance, and order through the creation of thoughtless, passive subjects.
This type of legal order risks capture by the troublesome leaders and leaves
its indifferent citizens open to abuse by enforcers and officials, who give subjects short shrift, who favor advisors providing no guidance, and who legitimate rulers who rule for their own sake. Even King Azaz says of his own
administration:
"Why, my cabinet members can do all sorts of things. The duke [of Definitions]
here can make mountains out of molehills. The minister [of Meaning] splits
hairs. The count [of Connotation] makes hay while the sun shines. The earl [of
Essence] leaves no stones unturned. And the undersecretary [of Understanding]," he finished ominously, "hangs by a thread."54
They also leave the polity open to the kinds of bureaucratic demons who
control the Mountains of Ignorance and guard the imprisoned princesses.
These include the Terrible Trivium, a demon who inspires busywork,
wasted effort, petty tasks, and habit; the Demon of Insincerity, who uses
others to illustrate his own cleverness; the Everpresent Wordsnatcher, who
takes others' words and twists them for his own use; the Gelatinous Giant,
who is afraid of everything, including ideas, and so tries to stay safe by not
being different; and the Senses Taker, who delights in delaying travelers by
engaging them in a game of questions that become increasingly trivial with
the effect that people forget why they were traveling in the first place. What
these demons emphasize is that the means employed are not just insignificant matters of expediency. Rhyme and Reason, for example, are the means
through which words and numbers achieve meaning, and their banishment
illustrates the intimate relationship between means and ends. Their loss can
be likened to rule-utilitarianism, which "makes us forget that in a legal system, and in the institutional forms of society generally, what is means from
one point of view is end from another and that means and ends stand in a
relation of pervasive interaction.""
In many respects, The Phantom Tollbooth simply represents an updated
version of Alice in Wonderland.Instead of Victorian children in idyllic Oxford
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climes, though, Milo is an ordinary urban child, living in a city and experiencing the sort of ennui brought on by twentieth-century mass culture and the
pedagogy of modern schools. In contrast to the sovereigns in Wonderland,
who represent the more internal household authority of parents, governesses, and teachers, Milo's encounters with authority in language, rules, and
leaders take on a more bureaucratic mien typical of the kinds of personages
and decision-makers one might encounter in a modern regulatory regime.
Nevertheless, the constitution of this nonsense regime is another absolute
monarchy. But, instead of a battle between autonomy and sovereignty under
a system of monarchical ordering, The Phantom Tollbooth concerns the difference between education and wisdom and what processes are conducive to
synthesizing both, so as to encourage an attitude of engagement, alertness,
and responsibility within an increasingly autonomous individual.
Compared to Alice, Milo first appears as the bored "everychild." And
yet Alice, while shrinking and growing regularly in a physical sense, does
not really develop or mature as a person. Indeed, one could say that all that
happens is a simple inversion in an authoritarian rule-governed order where
Alice becomes co-ruler-albeit, an inversion that turns sovereignty on its
head and causes the whole system to collapse. When she returns home, we
are not quite sure whether she has learned anything from her experience or
certain if what she has learned will be put to good use. The outcome of the
process of learning that each child experiences mirrors the possibility for
achieving some form of self-determination in these worlds. Alice cannot
exist in the mad world of absolute sovereignty and she learns that she would
not want to.
Milo's successful quest leads to the reconciliation of the brothers, who join
forces to help him defeat the demons and save the Princesses of Rhyme and
Reason. Like a Rousseauean Legislator, he helps restore good governance to
the Kingdom of Wisdom and then leaves the polity. But, in so doing, he transforms himself from an unthinking and compliant Lethargarian to a young
adult with greater consciousness, a firmer sense of self, and a newly found
set of responsibilities. He becomes the type of person who can supervise and
judge a rule-governed society at home, confirming what the Princess of Pure
Reason advised him before his return home: "You must never feel badly about
making mistakes ...as long as you take the trouble to learn from them. For
you often learn more by being wrong for the right reasons than you do by
being right for the wrong reasons."56 At the end of the book, the tollbooth
Liston • The Rule of Law Through the Looking Glass
disappears and Milo is left a note telling him that he now knows the path to
wisdom in his own life.
V. HARRY AND THE EVIL EXECUTIVE
Fear and Disorder
With the Harry Potter series, we come to the most mature character and the
most fully drawn world of law. The series follows Harry's development as a
budding wizard in the parallel magical world at Hogwarts School of Witchcraft and Wizardry. The rule of law, as it appears in the Potter books, has
relevance not just for the human world, but for the world of magic too. At
least for Rowling, even magical powers ought to be constrained and rightly
directed. Magic, then, becomes the chief means through which Rowling explores themes of power, authority, justice, and legality.
Harry differs from Alice and Milo in not starting from "ground zero." He
is neither denied standing to claim his rights nor disentitled from challenging laws and interpretations. Claiming standing and voice allow Harry and
his friends to use the institutions and processes of legality to confront evil,
brought on by Lord Voldemort, and to seek justice, compromised though
these efforts might be by the pervasive influence of dark forces. Though the
first three books of the series set out the conventional fight against evil, by
the fourth book the narrative explicitly takes on the theme of the growing
subversion of legality. William MacNeil describes, in the fourth book of the
series, Harry Potter and the Goblet ofFire, the transition to a seemingly per-
manent state of emergency with a concomitant increase in sham trials and
arbitrary detentions that put suspected undesirables in Azkaban prison.57 My
focus, however, is on the fifth book in the series, Harry Potter and the Order
ofthe Phoenix, which I believe constructs the most detailed picture of the infrastructure of government in the Harry Potter series, and marks the turning
point where the wizarding world transforms itself into a political community
fully ruled through illegality.
Order ofthe Phoenix describes Harry's struggle with the executive and its
main administrative arm called the Ministry of Magic (MoM), headed by the
chief public official, Cornelius Fudge, the Minister. The principal function
of the Ministry is to conceal the existence of magic and magical beings from
human cognizance, a purpose first mandated by the International Statute
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of Wizarding Secrecy 1692. The Ministry liaises directly with the British
prime minister when emergencies necessitate such communication. Order
oftthe Phoenix begins with the notification that Harry will be called before a
disciplinary hearing at the offices of the Ministry of Magic for using illegal
magic. His specific violation was producing a Patronus Charm in the Muggle
(human) neighborhood of Little Whinging in contravention of both Paragraph C of the Decree for the Reasonable Restriction of Underage Sorcery,
1875 and Section 13 of the International Confederation of Warlocks' Statute of Secrecy. He had previously received merely a written warning on a
similar charge, but now it will be decided whether or not Harry will have
his wand confiscated and be expelled from Hogwarts. Harry's hearing is
held at the Department of Magical Law Enforcement, where he must plead
his case before the Wizengamot, a panel of randomly selected wizards who
will judge his case. Harry's hearing provides an important perspective on
the type of administrative process in place, as well as the potential for the
instantiation of administrative injustice at the hands of the Ministry.
The reader soon suspects that administrative processes will not be open,
transparent, clear, or reliable when Harry, who had fortunately arrived early
at the MoM offices, is notified purely by chance that the time and venue of the
meeting had "changed" just that morning. He is lucky to be only late for the
hearing, rather than missing it entirely and risking an adverse finding without having had the opportunity to present his side. Things worsen for him.
Instead of an administrative tribunal or disciplinary hearing operating under
the rules of natural justice or due process, he discovers that he must participate in an examination before the full court of fifty wizards, a degree of representation that is usually only necessary for serious criminal proceedings,
but without the benefit of any representation and without being expected to
provide a full and fair defense. If the reader didn't already guess, she should
suspect that something is quite amiss in the wizarding world and that legality
is indeed in peril. Of all the historical ghosts that animate Rowling's fantasy
world, the specter of the Star Chamber makes a surprise appearance in its
usual guise as an arbitrary tribunal prone to covering its abuse by manipulating the rules of administrative procedure.
Fortunately for Harry, the Headmaster of Hogwarts, Professor Albus
Dumbledore, unexpectedly appears to testify on his behalf, though he in fact
becomes Harry's counsel-the only example of any individual acting as a
lawyer in the wizarding world. Dumbledore reminds the Wizengamot that
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under the Wizengamot Charter of Rights, Harry is entitled to present witnesses for his case." After calling on a witness to corroborate Harry's account that he used his magic-specifically a Patronus Charm-to prevent a
vicious attack on himself and his cousin by the deadly demonic Dementors,
Dumbledore puts the following proposition into the record. The Ministry
itself may be at fault for Harry's supposed illegality because it is supposed
to be in control of the Dementors who are used as guardians and enforcers in the prison of Azkaban. Therefore, either someone in the Ministry
ordered the attack and is fully culpable, or the Ministry has been negligent
and should make a full inquiry into why the Dementors attacked a wizard
without proper authorization. It later becomes clear that officials within the
Ministry are actually allied with Lord Voldemort and it is they who have sent
the Dementors to attack Harry.
In response to Cornelius Fudge's enraged question concerning whether or
not Dumbledore is attempting to direct the Ministry's actions by requesting
an inquiry, Dumbledore replies: "I was merely expressing my confidence that
this matter will not go uninvestigated." Either way, Dumbledore continues,
Harry ought not to be found culpable:
"Laws can be changed," said [Cornelius, Minister of Magic] Fudge savagely.
"Of course they can," said [Headmaster Albus] Dumbledore, inclining his
head. "And you certainly seem to be making many changes, Cornelius... it has
already become the practice to hold a full criminal trial to deal with a simple
matter of underage magic!"
A few of the wizards above them shifted uncomfortably in their seats. Fudge
turned a slightly deeper shade of puce....
"As far as I am aware," Dumbledore continued, "there is no law yet in place
that says this court's job is to punish Harry for every bit of magic he has ever
performed. He has been charged with a specific offence and he has presented his
defence. All he and I can do now is await your verdict.""
Moreover, Dumbledore reminds the Minister that Clause 7 of the Decree
allows magic to be used before humans in exceptional circumstances, such as
life-threatening situations. Dumbledore concludes Harry's defense by stating that if the Wizengamot accepts Harry's account, an account backed by
a credible witness, then they would have to agree that his case fell soundly
under the exemption. The Minister reluctantly accepts this conclusion but
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then attempts to impugn Harry's credibility by calling into question not only
his previous misdemeanors, but also his general behavior at school. Dumbledore constructs a compelling rebuttal to Fudge's line of attack:
"But, as the Ministry has no authority to punish Hogwarts students for misdemeanours at school, Harry's behaviour there is not relevant to this hearing,"
said Dumbledore as politely as ever, but now with a suggestion of coolness
behind his words.
"Oho!" said Fudge. "Not our business what he does at school, eh? You
think so?"
"The Ministry does not have the power to expel Hogwarts students, Cornelius, as I reminded you on the night of the second of August," said Dumbledore. "Nor does it have the right to confiscate wands until charges have been
successfully proven; again, as I reminded you on the night of the second of
August. In your admirable haste to ensure that the law is upheld, you appear,
inadvertently I am sure, to have overlooked a few laws yourself."6
Left with no alternative, the Wizengamot is compelled to clear the charge
against Harry, but the administrative battle within the larger struggle remains far from over. The hearing serves to mark the beginning of the Ministry's illegitimate incursion into Hogwarts' jurisdiction, an action constituting a violation of the separation of powers in the wizarding system of
governance.
Taking Umbrage at Illegality
Shortly after Harry's hearing, the Minister deals with the "jurisdictional"
or constitutive issue by having Educational Decree Number Twenty-three
enacted, thereby creating the new position of Hogwarts "High Inquisitor"
whose powers include the ability to inspect, place on probation, and dismiss
any teacher at the school. Dolores Umbridge, the former Senior Undersecretary, assumes the position. Harry knows her as one of the fifty wizards who
sat on the Wizengamot disciplinary panel and who had voted in favor of convicting him. Soon Umbridge not only supervises the standards at Hogwarts
and inspects the teachers, but commands unchecked power over all punishments, sanctions, and removal of privileges. This development confirms the
end of the institutional aspect of the rule of law-the separation of powers,
checks and balances, and respected jurisdictional boundaries have all gone
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up in a puff of smoke. It also signals the now open challenge to civil society
on the part of a growing police state controlled by the executive branch of
government:
In a surprise move last night the Ministry of Magic passed new legislation
giving itself an unprecedented level of control at Hogwarts School of Witchcraft and Wizardry.
"The Minister has been growing uneasy about goings-on at Hogwarts for
some time," said Junior Assistant to the Minister, Percy Weasley. "He is now
responding to concerns voiced by anxious parents, who feel the school may be
moving in a direction they do not approve of."
This is not the first time in recent weeks that the Minister, Cornelius Fudge,
has used new laws to effect improvements at the wizarding school. As recently
as 3oth August, Educational Decree Number Twenty-two was passed, to ensure that, in the event of the current Headmaster being unable to provide a candidate for a teaching post, the Ministry should select an appropriate person.
"That's how Dolores Umbridge came to be appointed to the teaching staff
at Hogwarts,' said Weasley..."
Throughout the rest of the book the Ministry, with Umbridge as the focal
figure, uses law to take over Hogwarts while, at the same time, transforming
the administration from one concerned with the regulation of magic for the
public good to one employing formally valid, and increasingly illegal, means
to achieve illegitimate ends. Umbridge also becomes the Defence Against
Dark Arts (DADA) teacher. Students, however, have a rude awakening about
their expectations for this course. Umbridge merely teaches the students the
abstract theory of defense but doesn't allow them to practice the necessary
skills in class. The purpose of her pedagogical method becomes clear. She
is attempting to disarm the students and to make them vulnerable by denying them the tools and the practices of defense for themselves and the larger
community. The students defiantly resist her attempts to inculcate learned
helplessness.
With every decree the former rule-governed regime diminishes, and with
every arbitrary detention, in the interests of security, the public order is warped
into a police state devoted to the accumulation of power and the enforcement
of nefarious purposes. Over the course of the narrative in Order ofthe Phoenix, the Ministry enacts eight more decrees, each of which clearly violates
common civil liberties, shatters the background shared expectations of the
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wizarding community, and illustrates the uncooperative nature of a system
used to maintain illegality-at least uncooperative for those residents who
oppose the Ministry's actions and the growing power of Voldemort. Each
decree applicable to Hogwarts emerges secretly, without warning from or
consultation by the Ministry, is inconsistently posted for public notice, and
generally exhibits the sort of absolute, arbitrary, and untrammeled executive
discretion inconsistent with the idea of the rule of law.
Educational Decree Number Twenty-four requires the disbanding of all
student organizations, teams, and clubs, though these groups could reform
upon obtaining Umbridge's approval.62 Though "neutral" on its face, the decree's actual intent is to halt all "subversive" student group activities including
the group to which Harry belongs, whose purpose is to teach each other the
self-defense skills they are denied learning in Umbridge's class. According to
Educational Decree Number Twenty-five, Umbridge gains supreme authority over all punishments, sanctions, and the removal of privileges at Hogwarts,
and she subsequently uses this power to single out Harry and his friend Ron
Weasley for a lifetime ban on playing the game Quidditch.63 As Umbridge
notes, this decree was necessary in order to distinguish her authority from
the "usual powers" possessed by the "common teachers."64 Teachers, in Educational Decree Number Twenty-six, are banned from giving students any
information not related to subjects they are paid to teach.65 Under Educational
Decree Number Twenty-seven, students could be expelled for possession of
the tabloid magazine The Quibbler, a media source that prints a lot of gossip, but also not infrequently the truth.66 These last two decrees clearly limit
freedom of expression. And finally, in the form and spirit of a jurisdictional
ouster, Dolores Umbridge replaces Dumbledore as Headmaster of Hogwarts
by the powers of Educational Decree Number Twenty-eight. She then institutes a specially selected Inquisitorial Squad of students who will dedicate
themselves to the enforcement of Ministry-directed orders at the school. With
this final "'educational" decree, the state of emergency created in response to
Lord Voldemort's quest for power has completely enveloped the wizarding
society. Officials within the administrative state have used the preexisting crisis to entrench emergency powers and effectively control not only the state
but key aspects of civil society.
The wizarding world deeply suffers from a particular kind of deficit of accountability. Delegations of discretionary authority within the government are
ample, secretive, and largely unchecked. Susan Hall notes that the Ministry of
68
Liston - The Rule of Law Through the Looking Glass
Magic exercises the main legislative, executive, and (minimal) judicial functions within the wizarding world.67 The Ministry is both the principal domestic
lawmaking body for the British witches and wizards as well as the final judicial
body. Most importantly, this concentration of power in the Ministry appears
not to be subject to any kind of scrutiny or oversight, either democratic or
judicial, for the main checks seem to be the media and Hogwarts itself. Perhaps
this is because this small community finds it not unreasonable to assume that
the people who fill these managerial positions would have the requisite sense
of role responsibility and loyalty to the community, thereby obviating the need
for oversight. But from an administrative or constitutional law perspective, the
larger legal system, because of its dependence on the political system, cannot
be solely relied on for the effective maintenance of responsible government.
Lord Voldemort's and his supporters' efforts to undermine legality and
governance bring the system to the brink of collapse. Yet it is also true that
they have exploited preexisting weaknesses, gaps, and vacuums in the wizarding legal system to hasten its fall. Hall, who adopts a primarily Diceyan conception of the rule of law with its inherent suspicion of administrative bureaucracy, focuses on the first four books and provides a description of the various
rule-of-law and other failings in the political system and in criminal matters."
But Order ofthe Phoenix discloses the unadorned truth that this weakness is
not endemic to law alone. Other safeguards of freedom-Congress or the
House of Commons, the media, pressure groups, the good sense and decency
of administrators-are as vulnerable as the law is in times of crisis. In this respect, Harry Potter brings us back to basic insights given to us by legal realism
concerning the effects of power on human character in a way that the more
absurd story of Alice and the more optimistic story of Milo do not.
Practicing Illiberal, Undemocratic Citizenship
A second serious source of weakness is the overall acceptance of overt discrimination within the wizarding world and in its relations with the non-magic world.
It is this weakness that directly links the books to discourses about human
rights. A caste system operates in the wizarding world where sentient beings
are classed and ranked according to race, with pureblood wizards and witches
accorded superiority and inferiors designated "half-blood" and "mudblood."
Individuals who are from purely Muggle (human) backgrounds are derogatorily called "Mudbloods," while other creatures, like house-elves, giants,
69
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and werewolves are openly discriminated against on the basis of their "kind."
When Professor Lupin is revealed to be a werewolf, for example, he is forced
to resign his position simply because of what he is, while Hagrid, the Hogwarts
gamekeeper who also teachers the course on the care of magical creatures, offers to resign when he is "outed" as a half-giant and is subjected to miscegenistic attitudes from members of the wizarding class. House-elves are an underclass of indentured servants upon which the smooth running of a wizard's life
depends. They are unpaid, must perform their work without clothes, and are
legally barred from carrying and using wands so as to limit their magic powers.
This prohibition effectively keeps them in a condition of permanent slavery.
Harry's friend Hermione, herself a Mudblood, is outraged that the official
Hogwarts history whitewashes itself by making no reference to the houseelves. She takes it upon herself to advocate for "elf rights" in order to redress
the current effects of a continuing system of past injustice." Muggles and their
world are thought similarly inferior and the wizarding community contains
some extreme views advocating for the classification of humans as beasts or
nonsentient beings. The evil Lord Voldemort, for example, refers to Dumbledore as "that champion of commoners, of Mudbloods and Muggles." ° The
majority of the community, however, paternalistically believes that humans
ought to be protected from magical harm, much like human societies have
laws protecting animals from human acts of cruelty. The concealment of the
existence and the effects of magic occur through memory modification in humans, a not effectively supervised practice that can have cruel results. The
inability of the wizarding world to control memory modification of humans
through the use of the Memory Charm by the Ministry's "Obliviators," or
even by ordinary wizards, poses yet another subversion of a lawful and politically moderate order. Whim and subjective desire, not reason and restraint,
seem to be the main psychological drivers, and the Ministry often uses modification in order to protect state secrecy. As Aaron Schwabach argues, wanton
use of the Memory Charm effectively makes Muggles the objects of wizarding
law, and they, like the subjects in the Looking-Glass world, play no part in the
structuring of the ongoing legal discourse and norm application.7'
Legal Dementia and Political Suicide?
Schwabach suggests that the existence and frequent use of three Unforgivable Curses, prohibitions that are peremptory-like norms, point to profound
Liston • The Rule of Law Through the Looking Glass
inconsistencies in the content and application of wizarding laws that reveal
the moral values underlying the collective choices the society has made. The
three spells are the Cruciatus Curse, causing unbearable pain; the Imperius
Curse, removing free will; and the Killing Curse, causing instant death. Each
of these curses is punishable with life imprisonment, but many characters use
them without fear or application of any punishment, including Harry. By
contrast, the use of the Memory Charm is taken much more seriously when
applied to wizards rather than Muggles, but its effects on Muggles-full erasure of memory-is as "cruel and unusual" a punishment as any of the three
prohibited curses.72 Even more inconsistent is the Ministry's reliance on the
Dementors as guardians and enforcers in the prison of Azkaban, who "police" with a kiss that extracts the victim's soul out of his or her body. No legal
sanctions control the Ministry's use or punish the misuse of powers of these
terrible creatures. Such a consistent inconsistency transforms the Ministry's
regulatory authority from one of "muddling misrule '73 to something more
psychotic-the administrative equivalent of the rule of Dementors, sucking
both spirit and form out of the legal body.
Both William MacNeil and Benjamin Barton suggest that Rowling's oeuvre demonstrates a profound suspicion of all political institutions. MacNeil
argues that such suspicion comes from a perspective on institutions, particularly legal institutions, as irreparably tainted by violence and injustice from
their very beginnings.74 A profound unease about the possibility of the very
existence of "good" law underlies the narrative. This suspicion extends even
to the "good" characters, for Rowling uses Hermione partly for parody. Hermione's pressure group is named the Society for the Promotion of Elfish
Welfare-acronym "SPEW" MacNeil speculates that Rowling's ambiguity
about the potential of law and rights discourse neither supports the Burkean
conservatism of some characters, who believe that juridification of the houseelves' plight will create more problems than it solves, nor Hermione's liberallegal rights talk, but points to an as yet unformulated and perhaps immanent
"third way" of remedial justice that remains inchoately expressed in wizard
culture.75 Such a "third way" retains a small hope that law and politics can
control their internal tendencies towards arbitrariness and unjustified exercises of power.
Benjamin Barton, on the other hand, considers the Ministry of Magic
in Harry Potter and the Half-Blood Prince from the perspective of the
public-choice model of self-interested, power-hungry bureaucrats who
Law & Literature • Volume 21,
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tyrannically override the broader public interest and dominate the political system.76 His detailed analysis, however, misses a key feature of governance that Rowling may be more aware of by virtue of being British
rather than American. There is "never any mention of a legislature or
legislative process"77 in the books, and little oversight of the Ministry, because Rowling has taken the executive-dominated tendencies of the British
Westminster system of government to its extreme. For Barton, in contrast
to MacNeil, Rowling's work exhibits a libertarian mind-set emphasizing a
profound distrust of bureaucracy, the value of self-reliance, and a preference for minimal government.78
The analysis here does not depend on Rowling's actual political views;
instead, it considers expectations about a law-governed polity that Rowling either deliberately or intuitively uses in her texts. These expectations
may cohere with a variety of ideologies: conservatism, liberalism, libertarianism, and human rights. The world of Harry Potter described above
contains enough information to observe similarities between the rule of
law there and the rule of law as it has been conceptualized here, particularly in post-9/ ii Anglo-North American systems of government. Despite
permeation by various kinds of law-international, customary, a charter,
and the existence of legal practices that were originally in accordance with
the rule of law-Harry's political community is rendered profoundly illegal as a result of the struggle against Voldemort, a struggle superadded to
the problems of a political community whose legitimacy is already under
question as a result of entrenched legal and political discrimination. These
two axes of weakness together threaten to make the rule of law's abeyance
an enduring condition. The attentive audience anxiously charts the attenuation of the rule of law in the following ways: the increasing lack of openness and publicity concerning the enacted laws; the loss of long-standing
reliance on a set of interlocking expectations about receiving fair and equal
treatment under laws or through discretionary decision-making in government; the progressive violation of minority rights and civil liberties; and
the monopolization of the judicial and legislative by the executive. Moreover, instead of a voluntary system of cooperation on the part of citizens
and governments in the responsible maintenance of legality, the reader
comes to see the institutions of government abandoning their commitment
to reciprocity under the influence of a political drive geared to obtaining
total domination of society.
Liston - The Rule of Law Through the Looking Glass
VI. DEMOCRATIC
RULE OF LAW
CITIZENSHIP AND THE
Alice leaves the unredeemable world of Wonderland, happy to have the experience but happier still to go home. Milo becomes the outsider who is
asked by the inhabitants of the Lands Beyond to help them reform their
polity, which he successfully does, and then like a good Rousseauean Legislator, leaves to return home. Harry, on the other hand, has no option of exit
or escape from either his wizard or his human world. Like the readers, he
lives in a permanently flawed political and legal order under a current state
of emergency. For this reason, his story is the most pertinent in thinking
about the social imaginary of the rule of law. Harry's story asks the reader
to consider what kind of political order matters, and how it has been or is
being brought about.
Despite Harry and his friends' own "unruliness" at Hogwarts, the reader
sees that they believe in the rule of law, not just in relation to the human
world but in the wizarding world as well. Perhaps inconceivably, we learn
that even magic ought not to be considered a rule-free response to changing
conditions. It also ought to have limits, standards, and guidelines in order
to be used responsibly and to be perceived as legitimate. This intimation informs an underlying belief in the rule of law: for power to be considered legitimate in form, content, and use, it must be limited to purposes conducive
to the realization of human good, it must restrain public power and guide
citizens' own powers effectively, and it must operate within a perspective
recognizing all legal subjects as moral equals. Without this normative core,
legality will fail to confer legitimacy and the lack of legitimacy may, in turn,
imperil legality. This knowledge is captured by the rule of law as a political
ideal, but it requires continual justification and maintenance in an existing
political order. A state committed to the rule of law is not just a well-run enterprise; rather, it is a well-run enterprise intending to realize some germ of
justice in the way it produces and administers human laws. The enterprise is
difficult and hazardous and relies on the personal investment of citizens for
the long run or else risks collapsing in on itself like Alice's deck of cards.
Past and current lessons of history tell us that the rule of law can easily
be taken for granted. Citizens can fail to appreciate its benefits, fail to recognize the sheer effort behind the achievement, rely on the perception that
because the forms are in place a society can simply assume that the existing
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structure and its associated practices continue to be valid. To monitor and
maintain the quality of the legal system, the political community requires a
set of critical and reflective standards with which to judge governmental processes and the institutions. The concept of the rule of law can assist in this
necessary and continual assessment; so too can democratic theory.
If the rule of law is not just the "law of rules," but is a purposive and discursive activity, then law, like communication, "is something more than a means
of staying alive. It is a way of being alive."79 The political choice of the rule
of law as a principle of government communicates our views on the worth of
individuals as well as our estimations of a particular political and legal order
that uses law to rule. While discussing historicity as the most prominent feature of the law, Paul Kahn remarks:
We will not grasp the distinctive character of law's past if we focus only on
particular rules-statutes, judicial decisions, or constitutional provisions-and
the distinctive manipulations, both logical and rhetorical, that legal argument
deploys upon these resources. If approached in this way, law's rule looks like a
rather complex game, distinguished only by the fact that its rules are enforced
by violence, if necessary. Such an approach misses what is most significant
about law. Law's rule carries forward a past that makes a meaningful claim upon
us. That claim is internal to our beliefs. It is also deadly serious, extending to
life itself. "
Although the rule of law emphasizes survival, self-preservation, moderation, stability, and order, it is not only about these concerns. The discourse
of the rule of law necessarily also concerns recognition, liberty, and equality,
both formally and substantively.
The three texts help the reader see that law and rules always embody and
communicate a view of the affected person as a legal subject and as a moral
being. The power of citizens to accept or challenge rules through political or
legal activity has its merits and demerits, but such activities constitute crucial
ways to reveal whether the governing order can justify its demand for obedience. Citizens are not merely passive consumers of rules to be acted upon by
legislative, executive, and administrative powers, but are necessary participants in a democratic system of lawmaking and norm application.
I have argued that the three children's literature texts offer fruitful insights
into how the rule of law, as part of our social imaginary, acts as a political belief with an accompanying framework of commitment that can be realized, if
Liston , The Rule of Law Through the Looking Glass
only partially or immanently, as we use it, critically reflect on it, and aspire to
better it in practice. A rule-governed community worth maintaining endorses
a political space where subjects have a "right to think" and a "right to grow,""
who are placed at the moral center of rule-making, who are encouraged to
invest themselves in practices of democratic citizenship, and who will not let
their political culture, through the machinations of public officials or political
forces, redefine illegality as a legitimate mode of rule.
I am indebted toLaurie Naranch at the Midwest Political Science Association Annual Conference,
Chicago, April 2007; the Fellows Workshop at the Centre for Ethics, University of Toronto; and the
anonymous reviewer for constructive comments on this article.
i. Northrop Frye, "Literature and the Law," 4 Law Society of Upper Canada Gaiette 70 (1970).
2. LewsisCarroll, The Annotated Alice
The Definitive Edition:Alice'sAdventures in Wonderland& Through
theLooking Glass, introduction and notes by Martin Gardner (New York: W. W. Norton, 2000).
3. Norton Juster, The Phantom Tollbooth (New York: Epstein & Carroll, 1961; New York: Random
House, 2oo). Citations are to the Random House edition.
4. J. K. Rowling, Harry Potterand the Orderofthe Phoenix (Vancouver: Raincoast Books, 2003).
5.See Maria Tatar, Off with Their Heads: Fairy Tales
and the Culture of Childhood(Princeton, N.J.: Princeton University Press, 1992), 8-9.
6. On the British boarding school genre, see Colin Manlove, From Alice to Harry Potter: Children'sFantasy
inEngland (Christchurch: Cybereditions, 2003), j85-86. See also David K. Steege, "Harry Potter,
Tom Brown, and the British School Story," in The Ivory Tower and Harry Potter:Perspectives on a Literary Phenomenon, ed. Lana A. Whited (Columbia and London: University of Missouri Press, zooz).
7. Celia Catlett Anderson & Marilyn Fain Apseloff, "Some Definitions ofNonsense," Nonsense Literature
for Children:Aesop to Seuss (Hamden, CT: Library Professional Publications, 1989), 4 5.
8. See Alison Lurie, Don't Tell the Grown- Ups: Subversive Children's Literature (Boston: Little Brown,
199o).
9. See Bruno Bettelheim, The Uses of Enchantment: The Meaning and Importance of Fairy Tales
(New
York: Knopf, 1976).
io.Laura C. Barry, The Child, the State, and the Victorian Novel (Charlottesville and London: University
Press of Virginia, 1999), 4 5-
ii. F. J. Harvey Darton, Children's Books in England: Five Centuries of Social Life, 3rd ed., rev. Brian
Alderson (Cambridge: Cambridge University Press, 1982), 26o.
12.John Morison, "Stories for Good Children," in Tall Stories? Reading Law and Literature, ed. John
Morison and Christine Bell (Aldershot, UK: Dartmouth, 1996).
13. See Desmond Manderson, "From Hunger to Love: Myths of the Source, Interpretation, and Constitution of Law in Children's Literature," 15Cardo~oStudies in Law andLiterature87 (2003).
14. See Ian Ward, "Children's Literature and Legal Ideology," Law and Literature: Possibilitiesand Perspectives (Cambridge: Cambridge University Press, 1995).
15. 1 rely on the following texts for this condensed understanding: T. R. S. Allan, ConstitutionalJustice: A
Liberal Theory ofthe Rule ofLaw (Oxford: Oxford University Press, 2oo1); Richard Bellamy, ed., The
Rule ofLaw and the SeparationofPowers (Aldershot, UK: Ashgate/Dartmouth, 2005); Albert V. Dicey,
Introductionto the Study ofthe Law ofthe Constitution, 8th ed. (Holmes Beach, FL: Gaunt, 1996); Lon
L. Fuller, The MoralityofLaw, rev. ed. (New Haven and London: Yale University Press: 1969); Joseph
Law & Literature ° Volume
21,
Number
1
Raz, "The Rule of Law and Its Virtue," The Authority of Law: Essays on Law andMorality (Oxford:
Clarendon Press, 1979); Brian Z. Tamanaha, On the Rule ofLaw: History, Politics, Theory (Cambridge:
Cambridge University Press, 2004); and Jeremy Waldron, "Is the Rule of Law an Essentially Contested Concept (in Florida)?"
21
Law and Philosophy 137
(2002).
i6. Rawls's early work incorporated Jean Piaget's research on the development of moral reasoning in
children. For applications of Piaget in children's literature, see Ward, supra note 14, and also Lana
A. Whited with M. Katherine Grimes, who incorporate Lawrence Kohlberg's further work on moral
reasoning in "What Would Harry Do?: J. K. Rowling and Lawrence Kohlberg's Theories of Moral
Development," in The Ivory Tower andHarry Potter: Perspectiveson a LiteraryPhenomenon, ed. Lana A.
Whited (Columbia and London: University of Missouri Press, 2oo2).
17. John Rawls, A Theory ofjusice, rev. ed. (Cambridge, MA: Belknap Press of Harvard University Press,
1999), 207.
18.Carroll, supranote 2, at 25I.
19. For more on this interpretation of Alice in Wonderland, see Gilles Deleuze, The Logic ofSense, trans.
Mark Lester with Charles Stivale, ed. Constantin V. Boundas (New York: Columbia University Press,
1990).
2o. Carroll, supranote 2,at 85.
2i. Id. at 95.
22. Fuller, supra note i, at 74.
23.
Carroll, supranote
2,
at 86.
24. Fuller, supra note 15,
at 205.
25.Id. at 22o.
26. Carroll, supranote
27.
2,
at 95.
Id. at 256-57.
28. Other possible responses include: because there is an "r" in neither, and because each begins with the
letter "e" Carroll's own answer was: "It is nevar put with the wrong end in front." The misspelling is
deliberate as "nevar" is "raven" spelled backwards.
29.
Carroll, supra note 2, at 123.
30. Id. at 210.
31. Id. at213.
32.
Id. at i6i.
33. W. H. Auden, "Today's 'Wonder-World' Needs Alice," in Aspects ofAlice: Lewis Carroll'sDreamchild
as Seen Through the Critics' Looking- Glasses, ed. Robert Phillips (New York: Vanguard Press, 1971),
9-10.
34. The Caterpillar is the first character of many who poses this question to Alice. Carroll, supra note
2,
at 47.
35. Id. at 163.
36. Id. at 219.
37- Id. at 173.
38. Chapter 7, "The Lion and the Unicorn," is a lengthy pun on this phrase.
39. Fuller, supra note 15,
at
29.
40. Carroll, supra note 2, at 235.
41. Fuller,supra note
42.
15,
at 159.
See Duncan Black, A Mathematical Approach to Proportional Representation.
Duncan Black on Lewis
Carroll,ed. 1.McLean, A. McMillan & B. L. Monroe (Boston: Kluwer, 1996).
43. Carroll, supra note 2,at 120.
44. Fuller,supra note 15,
at 39.
45.Carroll, supra note
46. Id.at 124.
2,
at 196-97.
Liston - The Rule of Law Through the Looking Glass
4"7. Id. at 93.
48. Id. at 266.
49. Id. at 233.
0. Juster, supra note 3, at 175.
51. Juster, id. at 24.
52. Fuller, supra note ij, at 71.
53. Juster, supra note 3, at 26.
i4. Id. at 85.
ii.
Fuller, supra note x, at 197.
56. Juster, supra note 3, at 233.
5,7. William P. \IacNeil, "'Kidlit' as 'Law-and-Lit': Harry Potter and the Scales of Justice," 14 Cardogo
Studies in Law & Literature 545-64 (2002).
j8. Rowling, supranote 4, at 131.
59. id. at 137.
6o. Id.
61. Id. at 24 75.
62. Id. at 313.
63. Id. at 368.
64. Id.
6j. Id. at 486.
66. Id. at 512.
67. Susan Hall, "Harry Potter and the Rule of Law: The Central Weakness of Legal Concepts in the
Wizard World," in Reading Harry Potter. CriticalEssays, ed. G. L. Anatol (Westport, CT and London:
Praeger, 2003), 149 50.
68. ld. at 148.
69. \IacNeil, supra note 57, at 545.
"70. J. K. Rowling, Harry Potterand the Goblet ofFire (Vancouver, BC: Raincoast Books, 2ooo), 33.
71. See Aaron Schwabach, "Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency,
and the Rule of Law in the Wizarding World," ii Roger Williams University Law Review 325-26
(20o6).
72. Id. at 309.
73. Id. at 350.
74. MacNeil, supra note 57, at 552-55.
75. Id. at 557.
76. Benjamin H. Barton, "Harry Potter and the Half-Crazed Bureaucracy," 1o4 Michigan Law Review 1526
(20o6).
77. Id.at i533.
78. Id.at 1536-37.
79. Fuller, supra note 15, at 186.
80. Paul W. Kahn, The Cultural Study ofLaw (Chicago: University of Chicago Press, 1999), 45.
81. Carroll, supra note 2, at 114.