LOTR and Legal History.

[Beorn]

LOTR and Legal History

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:

1. Passage of time
2. Nature of transaction
3. Property holder’s conduct
4. 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?

Source

[Birka]

Very interesting subject, but somehow I would prefer to leave some room between my beloved LOTR and the legal profession. Bernard Cornwell one of my favorite authors, had a great disdain for 2 professionals, clergy and lawyers.