May 29 2013, 1:19am
1. Yet also taking into account his own independent inclination to proceed, do you feel his free will was, or may have been, violated?
Criminal minds think alike
I think Gandalf used trickery at most but not mind control on Bilbo, and Bilbo was never under any duress, so I think Bilbo was responsible for his decisions. And no matter how many times he wished he was safe back in his hobbit hole, he never once blamed Gandalf for getting him into that mess, though he periodically got angry with the Dwarves. So this juror lets Gandalf off the hook.
2. JRRT uses Smaug as the voice of legalistic reason to shake Bilbo's resolve, by cunningly asking him: "But what about delivery? What about cartage? What about armed guards and tolls?" (H, xii, 192). As Douglas Kane demonstrates in Law and Arda, the viability of the Contract rests on its executability by both parties. So let's discuss the point raised by Smaug the Barrister: the carting of the 1/14th share - is it a contract breaker? Is the letter of the Contract fulfilled without taking into consideration the return journey, and does 'delivery' simply mean the handing over the Reward? Is Thorin or his representative legally or ethically responsible for the Burglar's management of the Reward once it is provided to Bilbo?
This is such a great point, not least because Smaug is a criminal himself, and he doesn't let that dissuade him from playing a crooked legal advisor in this case. He plants a legitimate doubt in Bilbo's mind, and on first read, I wondered if the Dwarves were laughing at Bilbo's naivete also. When considering the Dwarves, however, they are consistently honorable, and I think they themselves gave no thought to the logistics of Bilbo transporting his fortune home, and once Thorin was established as a king with more than 12 servants, he would have provided a guard to Bilbo. That's my take on Dwarves: they take the law seriously, which is why they can be very vindictive when they're wronged. It's not just the personal betrayal, it's the breach of contract that upsets them. Given how much Dwarves depend on commerce for their livelihood, I would say that laws matter to them more than to any other race. Thus to answer your question, I think the contract is executable. (And so was the dragon, har har.)
3. Is maintaining the legal fiction of Bilbo as an (non-gifted) amateur needed to advance the story and Bilbo's arc, or is it more of a plot-driven point?
I like your question, but am I permitted to answer yes and yes? I think it was primarily to show that Bilbo remained inept at anything other than being a pampered aristocrat, and that for the Took in him to take over, it was going to happen gradually, not dramatically. But his purse snatching turned into a great part of the story that I believe is a favorite for most readers, and not a lot had been happening plot-wise for awhile, so that encounter livened up the story. And of course led to things like Sting and Glamdring, and we got to see how clever Gandalf is.
But there was also some good character development involved: Bilbo trying to prove himself as a burglar, the Dwarves loyally coming to save him, and Thorin standing out as the most sensible of all of them by being cautious. Then there was Bilbo showing his loyalty by going Took and grabbing a troll's leg (unfortunately a failure), then the Baggins in him cowering where he fell while his friends were going to be eaten. All of that milked from one failed attempt at snatching a purse! Yet odd as it is, since I have no sympathy for the trolls, it does seem like Bilbo was stealing from them, and unlike Smaug's treasure, Bilbo and the Dwarves had no claim on what the trolls had, even though they were thieves too. So the Baggins is guilty in this case.
4. Based on the revised version of Riddles, where do you stand here, in the moral, legal and/or psychological implications of Bilbo keeping the Ring? Theft, necessity or the hand of Fate?
Well, the Valar ("Authorities") ruled that Gollum was bound by his promise in the riddle game, and it only came dimly to Bilbo that the Ring belonged to Gollum, in fact, only when Gollum was prepared to murder him. So if you accidentally find something that could be anyone's, and later realize who the owner is only when the owner is going to eat you, I think there is legal justification for running away and using that object to save your life. But if you want to stick to the law, Bilbo should have thrown the Ring back to Gollum once he was clear of him, or even once he was outside. He knew he had stolen property, and he hadn't been hired to steal from Gollum. There is a legal paradox at work in The Hobbit. Bilbo wants to become a burglar in a noble way by stealing from a criminal dragon, but burglary is not noble, and practicing it along the way, such as stealing from Gollum, doesn't improve Bilbo's character. So it's significant when he begins to repudiate the burglar role by giving up the (stolen) Arkenstone, not to its owner, of course, but with the hope that it would go back to its owner by averting a war.
And though the pity of Bilbo ruled the fate of many, it's no excuse for stealing the Ring.
5. Burglary or Recovery: whose cup is it anyway? Since the Dwarves have possession of the Key, (a legitimate means of entry, and the Key being undisputed legal property of Thorin) does that legally and ethically sanctify their entry into the Mountain? Taking the Cup: does or does it not make Bilbo a burglar? And how does it compare with Bilbo removing the Arkenstone?
I have no ambivalence about this one: Smaug stole from the Dwarves, and they were entitled to get their property back. Bilbo thought that taking the cup made him a burglar, and I suppose it did since he was taking something from its possessor, but it feels pretty neutral, and was just a little thrill to him. Taking the Arkenstone was different. He knew it legally belonged to Thorin, he knew how much Thorin wanted it, and most tellingly, he felt guilty about keeping it. So Bilbo stole from his employer, which made him a bad burglar.
6. The Will.
I personally don't read much into this except that hobbits were ridiculous sticklers for detail (another example was their obsession over family trees). The part about red ink stands out to me as something that isn't as common as blue or black ink, and somehow it invokes a greater sense of absurd ceremony to have the witnesses employ it, along with seven witnesses being overkill. But when hobbits go to extremes, they're just absurd, and no one gets hurt. (*Points at Denethor.*)
7. Clemency: each event has a significant story consequence - except for the case of Grima and Theoden. With the idea that in JRRT's world legal fictions create meaning, why might choosing this legally unprecedented act of mercy for Grima, especially after his numerous dark deeds, be so morally (or psychologically) important for Theoden?
Tolkien likes his characters to keep the high ground and show clemency (*cough* except Thingol), and specifically for Theoden, it seems to me that his story unfolds in a way that shows him clearing away all petty concerns so that he can die in peace. He's aware of that himself and hints at it a few times. The Theoden/Grima mercy parallels the higher level Gandalf/Saruman mercy, and each of the bad guys comes close to repenting, then stick to their evil ways. It seems to me that there may be written laws in Rohan that Theoden could follow, but both he and Gandalf are following Valar or Iluvatar laws (ditto Frodo/Gollum) in showing mercy, so the higher set of laws trumps the lower.
I would also say that all this mercy does have generally good consequences. Frodo would not permit Saruman to be killed, so Grima did it, eliminating a spirit of malice from the world who could clearly still do harm. The pity of Theoden ruled the fate of the hobbits and whoever else Saruman would have tormented.
8. Marriage: So what do you think JRRT is saying about marriage in a morality vs. law context, by using a lack of formal legal structure in his literary depiction of a highly legalized real-world state; perhaps in both an idealized and real-world sense?
I'm a little puzzled that someone who believes that marriage is forever with no possibility for divorce doesn't believe in having a great big, formal ceremony to cement a marriage. But I think that Tolkien, who so often stressed that what was natural was best, was showing that mating for life (which plenty of intelligent animals do) was natural and didn't need a ceremony. It was willed by Eru, and that was that.
This was a lot of fun, Breth, and you clearly toiled over it more than a Dwarf over a labor of love. Thanks so much for creating this discussion!