Gwen Seabourne of the University of Bristol School of Law has an interesting article on legal history as it is used in the Lord of the Rings at Common Lawyer.
The Oath
Binding oaths are used in LOTR, which are enforceable well after death following Norse and Anglo-Saxon traditions:
- Gollum swearing by “precious” not to harm the Hobbits
- Pippin swears loyalty to Denethor II, and Merry swears to Theoden
- King of the Mountain of Erech and his men could not rest because they broke their oath to fight Sauron
Ritual oaths were called a compurgation, because the person would purge themselves of charges, a tradition that remained in English debt law until the 1600’s.
Professional oath takers would place a straw in their shoe, giving way to the term “straw man,” which still has implications to debt law today.
Medieval Remedies
The paying of reparations for homicide, wrongful death, or other serious crimes was a principle in Nordic and Anglo-Saxon law known as weregild (from Old English: wer, man; geld, payment).
The 13th-14th c. Icelandic saga of Grettir the Strong relates a story of a warrior turned outlaw. Grettir proposes weregeld for killing of one of the characters in chapter 27,
Fain am I that those who have made me an outlaw should have full pay for this, ere all be over.
The Kingdom of Rohan, analogous to the medieval Saxon kingdom of Mercia, used the law of weregeld, as did its Riders and the dwarves.
Isidlur, the second king of Gondor and Amor, claimed the One Ring after cutting it from Sauron’s hand as a form of weregeld for his brother and father’s death.
Oaths were also used by Anglo-Saxons to swear mutual protection over households for blood feuds prior to the Normal conquest in 1066.
Seaborne also raises similarities with the Hundred Years’ War (1337 to 1453) between England and France in the protection extended to heralds and ambassadors.
Blood feuds were commonly used in early Medieval times for disputes over contested property.
Property Law
The premise of most of the trilogy centers around various property claims over the Ring, which include:
- Gollum, because it was gifted to him as a present
- Aragorn’s right to inheritance from Isildur
- Sauron, as the original owner, and through accessio by mixing it with other metals under the doctrine of accession
Sauron had originally forged the ring during the Second Age, presumably from gold and some other unknown metals.
Under ancient Roman property law of accession, when two things are united to become a dramatically new thing, old property in the thing is extinguished.
Silsbury v. McCoon (1850) stated,
[I]t is said that the owner may reclaim the goods so long as they may be known, or in other words, ascertained by inspection.
Saruon’s claims as a dispossessed prior possessor would be countered by Gollum and Aragorn by a defence of abandonment or limitation.
Roman law allowed abandonment allowed extinguished property through abandonment, but in contemporary law it would be evaluated slightly differently.
Stewart v. Gustafson (1998) outlined 4 things to assess abandonment:
- Passage of time
- Nature of transaction
- Property holder’s conduct
- Nature of the thing
Although 2,500 years had passed, Sauron could not claim to have given up looking for the Ring, and had repeatedly expressed intent to exclude even when it was not under his physical control. Additionally, he was originally dispossessed through a violent act.
However, any legal recourse by Sauron could be barred under limitations legislation that would state that too long a time had passed before re-acquiring possesion.
Another application of property law is in land ownership. Most of Middle-earth operates under a feudal title, with barons acting as tenants-in-chief for a regent.
An exception would be Tom Bombadil, omitted from the films, who interestingly enough does not own any property in land but is also the sole character immune to the corrupting effects of the ring.
Civil Rights Law
The archaic society depicted by LORS is not renowned for their advocacy. In fact, specific racialized legislation appears to exist in a number of domains.
The LOTR creation story of Middle-earth, with the Two Trees of the Valinor, and the awakening of the Elves beside Lake Cuiviénen, has some classic pagan parallels.
The Nordic “World Ash Tree” Yggdrasil connected the Anglo-Saxon seven earthly worlds, which included lands of Elves (Alfheim) and Dwarves (Niðavellir). These worlds were in the “middle” between Asgard and Hel. Tolikien then Anglicized this to Elvenhome, and drew on the meaning of Niðavellir (dark fields) to place the Dwarves in the mountains.
The Elves appear to be the most racist and exclusionary of all the people in Middle-earth. For example, they have explicit anti-Dwarf laws and formally referred to them as Naugrim, or Stunted People, and more commonly as Dornhoth, for Thrawn (perverse; contrary) Folk.
This racism appears to harken back to an ancient conflict between the Elves and Dwarfs in the First Age, and the Elves apparantly never get over their prejudicial misconceptions.
But even prior to this conflict there is evidence of persecution by Elves. The first contact they had with Dwarves was with the “Petty Dwarves,” outcasts who were the Aboriginal inhabitants of Beleriand even before the First Age.
When the Elf colonial setters arrived in Beleriand they referred to the Dwarves as “two-legged animals,” and engaged in a campaign of systematic genocide to near-extinction of this group. Dwarves thereafter maintained a healthy suspicion and distrust for Elves.
Elves also cite racial supremacy as justification of their behaviour. Dwarves are not Children of Eru Ilúvatar, or created by the Supreme God of LOTR, who created Elves first before all other races.
The elves even appear rather obsessed with pure bloodlines and heredity.
But Seaborne comments how their blind support for a primogeniture model of succession differs from Nordic cultures, which always allowed for new people and new claimants to the throne, and evaluated the merit of individuals beyond their ancestry alone.
The Elves therefore appear more racialized than even archetypes found in Nordic or Germanic cultures.
As a typical feudalistic society, Seaborne comments on the limited role of women in LOTR.
The Others
Tolkien includes other exceptions to the classical Nordic and Anglo-Saxon models of law, possibly to highlight their differences for philosophical purposes.
The Hobbits, the only people humble enough to withstand the power of the Ring as carriers, are near-libertarians. They have little central authority beyond a Thain, or military leader, or legal system other than that of the Old King.
However, some parallels can still be drawn here as well. The Thane (sic) in Scandanavian and Anglo-Saxon society was a attendant, servant, retainer or official.
Shakespeare has Macbeth as the Thane of Glamis, reporting to King Duncan of Scotland. When Malcolm and Macduff later invade Scotland against King Macbeth, it is the thanes that defect to their side (Act V, Scene III):
5 All mortal consequences have pronounced me thus:
6 “Fear not, Macbeth; no man that’s born of woman
7 Shall e’er have power upon thee.” Then fly, false thanes,
8 And mingle with the English epicures!
Thanes were considered inferior to a member of the royal family, an aethel, but superior to an independent peasant landowner, or ceorl. The Normans confiscated most ceorl land when they invaded Britain.
Thanes were differentiated from ceorls by their weregeld, which was six times that of a ceorl. Ceorl is also the name of one of the Riders of Rohan.
Seaborne suggests that the Hobbits’ perspectives of the Old Law may harken back to Hywel Dda, a pre-Norman Celtic ruler in Wales that codified law c. 945. His rule was one of the few that achieved peace with the Anglo-Saxons.
Words of Wisdom
The character Gandalf plays a mentoring and leadership figure throughout LOTR. His role is to play (legal?) counsel to the people of Middle-earth, without dominating over them.
Seaborne suggests that Gandalf’s role is also foreshadowing of contemporary liberalism in legal theory regarding capital punishment.
He responds to Frodo‘s regret that Gollum did not die by saying,
Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment.
However, Gandalf has a tough side to him too. He criticizes the Elves for not successfully detaining Gollum and allowing him to escape.
But as Seaborne says,
Gollum, and, even more so, the Orcs [or Elves], are not amenable to rehabilitation.
And isn’t rehabilitation the ultimate purpose of the law?
The property that is held in the ring could make an interesting exam question.
The way I see it:
Sauron holds ownership in the ring through accession.
He is dispossessed by Isildur who now holds possession in the ring.
Isildur loses the ring (he has an intent to exclude made manifest but no physical control) when it slips off his finger as he was swimming in the Auduin river to escape from Orcs.
The ring was found by Déagol.
He is dispossessed by Sméagol (Gollum).
Gollum loses the ring, it is found by Bilbo.
Bilbo gifts the ring to Frodo.
Gollum restores his possession of the ring, seconds later it is then destroyed (and all property held in it disapears).
Here we have a property hiearchy with one owner and a series of possessors. Biblo states: “[The ring] is mine isn’t it? I found it.” This seems to be laying a claim of ownership through finding. But finding only lets a finder hold possession in a thing, it does not extinguish the rights of those higher up on the hierarchy. Anderson v. Gouldberg states: “possession is good title against all the world except those having better title.” Gandalf seems to know this as he tells Biblo to “[s]top posessing [the ring].” Nor does it matter that several of the possessors (e.g. Isildur and Sméagol) obtained possession by dispossessing others – that does not change the dispossessor’s rights vis-à -vis a third party.
So it seems at no point did Sauron’s ownership of the ring elapse. What of the claim of abandonment?
On the one hand, Sauron thought that the Ring had been destroyed which would support Simpson v. Gowers definition of abandonment as a “giving up, a total desertion, and absolute relinquishment.†And 3000 years have passed which is a considerable lapse of time.
On the other hand, as Stewart states: “As the practical or monetary value of a chattel increases, so in my view does the difficulty of inferring abandonment, i.e., an owner normally would not abandon an expensive item.†The extreme value of the Ring (it could be used to conquer all Middle Earth) cuts against an abandoment. As well after receiving notice about the existance of the ring he tried to take possession of the ring (he is described as “seeking it, seeking it, and all his thoughts [are] bent on it.”.
Certainly it seems likely that 3,000 years well exceeded the limitations period. Therefore, even if an abandoment has not occured Sauron has lost his right to legal recourse. As far as Canadian law goes however he would still have a self-help remedy, e.g. sending Nazgûl out to seize the ring.
I’m just an American non-lawyer from fly-over country, but I thought the ultimate purpose of the law was justice.
Actually, the purpose of the law is something intensely debated.
What we think you are referring to is was is called natural law, as opposed to positve law or legal realism.
The correct interpretation, according to Frank Bastiat, would be that the law is not to promote justice, but to prevent injustice.
Of course this is but one perspective, and rehabilitation could probably be more accurately described as an outcome of the law, specifically criminal law, rather than a purpose.
Keep in mind though that the post was not fully intended to be taken as a serious legal commentary.
I should have also put in a line about a (fictional) bailment between Frodo and Sam when Sam acquired the ring (fictional not in the sense that LOTR is, well, fiction, but in the sense that Frodo wasn’t actually a bailor initially).
“I’m just an American non-lawyer from fly-over country, but I thought the ultimate purpose of the law was justice.”
As U.S. Supreme Court Justice Oliver Wendell Holmes Jr. was walking up the stairs of the Supreme Court building a man shouted to him: “Do justice!”
Holmes shot back, “This is a court of law, young man, not a court of justice.”
Jacob,
This post has received lots of traffic over the past few days, even more than the ones immediately previous (as hard as that might be to believe), due to a referral by StumbleUpon.
Perhaps Alex would be willing to run a re-write (with your inclusions) in Nexus.
I’ll check with him in the New Year and get back to everyone.