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A discussion of "Law and Arda" by Douglas Kane
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Brethil
Half-elven


May 28 2013, 1:36pm

Post #1 of 101 (1047 views)
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A discussion of "Law and Arda" by Douglas Kane Can't Post

Some discussion points I thought were interesting from the fascinating Law and Arda article from Tolkien Studies (Volume 9) that Douglas Kane, our own Voronwe the Faithful, kindly made available to us! Angelic

Feel free to address as many or as few points as you have ideas about...and as always in the RR, bring up any thoughts or questions you have too! Enjoy all! Can't wait to hear your thoughts!


** Order in the Court! Let us gaze at the Wizard in the dock: a question of "Undue Influence." Is it a charge that can be levelled at Gandalf, for his leading role in giving Bilbo "a little nudge out of the door..."? http://en.wikipedia.org/wiki/Undue_influence
The article above provides the legal definition of 'undue influence'. Do you feel that Gandalf can defend against the charge? Does his stature in relation to Bilbo make him more likely to have undue influence? We can consider two things: Bilbo's own indecisiveness in the matter - "Bilbo’s attempt to retreat into a modern, business-like air is defeated by the Dwarf song "Far Over Misty Mountains Cold," which evokes the ancient world and awakens in Bilbo’s heart "the love of beautiful things made by hands and by cunning and magic." (Shippey 73) - as well as his emotional state as described above. Yet also taking into account his own independent inclination to proceed, do you feel his free will was, or may have been, violated?


** 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?


** Douglas Kane sums up Bilbo's choice in the Trollshaw, where he has taken the step in deciding to live up to the title of "Burglar." In Letter #163 JRRT says; "Anyway I myself saw the value of Hobbits, in putting earth under the feet of 'romance', and in providing subjects for 'ennoblement' and heroes more praiseworthy than the professionals..." Let us discuss the role of the Talking Purse: to set the charming scene for Dwarves-in-sacks, or to maintain Bilbo's status as a non-professional burglar/adventurer? 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?


** As Douglas Kane points out, the event in which Bilbo finds the Ring is of enormous and apparently fateful importance, to Bilbo and to Middle Earth. "Although Bilbo found the Ring as opposed to taking it from Gollum by force or stealth, once he learned for certain that it was property belonging to Gollum he would be duty-bound by law to return it to him; failing to do so was as much a theft as if he had taken it by force. On the other hand, one defense that a person accused of a crime can assert is the defense of necessity, and it seems likely that Bilbo could have successfully claimed that it was necessary that he keep the Ring in order to avoid getting throttled and eaten. Moreover, he did not use more force than was necessary, since he used the Ring to escape Gollum by leaping over him instead of his original inclination of 'stabbing the foul thing, putting its eyes out, killing it' [H, v, 81](Kane, L and A)." A turning point in his career. 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?


** 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?


** After Bilbo's departure form the Shire, Frodo faces conflict and "legal folderol", as Douglas Kane quite properly calls it, surrounding the Will, with its seven signatures in red ink; in Hobbiton, apparently it takes a village to sign a will! What does this particular legal fiction say about Hobbit (and possibly in JRRT's mind idealized, countrified, pre-industrial English) society?


** The crucial distinctions of morality over law. In the examples Douglas Kane gives us in Law and Arda, circumstances in which JRRT highlighted morality over law (Frodo allowing Gollum to swear fealty on the Ring; Finrod's oath; the sanctioned Death of Miriel resulting in the birth of the children of Indis; Theoden sparing Grima) 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 experienced deep love in his life, yet through the legendarium shows the reader that he is well aware of strife and unhappiness in marriage (though he did not believe in divorce) and what its grave consequences can be. As Douglas Kane notes: "There is no provision made for Elvish divorce, but Tolkien notes in "The Laws and Customs of the Eldar" that no ceremony was necessary for marriage; a couple was automatically married when they consummated their relationship [Morgoth 211-211].(Kane, L and A) ." No option for divorce is available to star-crossed Numenoreans Aldarion and Erendis either; but then likewise no legal ceremony seems to have taken place. 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?

Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."

(This post was edited by entmaiden on May 28 2013, 2:44pm)


noWizardme
Grey Havens


May 28 2013, 5:09pm

Post #2 of 101 (383 views)
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Persons in Middle-earth [In reply to] Can't Post

Something I found myself thinking about while reading is "who is a person in Middle-earth". This question, while a bit curious, is relevant since a lot of law only applies to persons.

In real life, only humans qualify as persons. To remove trinkets found in a magpies nest is not a crime against the magpie, because its not a person. Similarly, there must be many contracts about for slaughtering livestock for meat production. These contracts can be legal, whereas slaughtering people for meat production would obviously be criminal, and no contract to do it could be valid. To be sure slaughterhouses must conform to animal welfare law, but I think that's a distinct thing.

If we are worrying that Bilbo might be criminal in removing gold from trolls or cups from dragons, then I think this means we are assuming that trolls and dragons are persons. If they weren't it would be like my magpie example, I think.

It seems reasonable that trolls and dragons are persons- they can reason and talk, for example. Middle-earth Has a number of species which might qualify as persons. That contrasts with real life, where only humans are persons. Law in Middle-earth would need to decide which races qualified for personhood and which didn't.

It wouldn't necessarily be easy- consider the legal and moral issues which we have about "who is a person" with just our own species. These include
When does personhood start? (Brings up issues such as abortion)
Whether all humans are persons equally. Societies and legal systems have differed about whether every person has the same legal standing, or do rights depend on gender, race, social standing, or other factors.

Similarly, who in Middle-earth is a person and why? Quite easy to see elves, Ents, dwarves, hobbits, wizards and men in this light. But we push quickly into trickier areas: is Old Man Willow a person or a sort of dangerous beast, for example?

Hope that seems interesting!

Hmm- this talk of wizards in the dock and under the influence is concerning. Wearing the traffic cones was Elrond's idea, you know.

Disclaimers: The words of noWizardme may stand on their heads! I'm often wrong about things, and its fun to be taught more....

"nowimė I am in the West, Furincurunir to the Dwarves (or at least, to their best friend) and by other names in other lands. Mostly they just say 'Oh no it's him - look busy!' "
Or "Hold off! unhand me, grey-beard loon!"


telain
Rohan

May 28 2013, 5:32pm

Post #3 of 101 (366 views)
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Law and Arda: M-eU (Middle-earth Unit) [In reply to] Can't Post

 
In the criminal justice system, the Children of Eru (adopted or otherwise) are influenced by three separate, yet equally important groups. Morgoth who is the root of all evil, the High Kings who prosecute the offenders, and the Valar who oversee the proceedings dispassionately.

These are their stories. Dun Dun

First of all I want to thank Douglas "Voronwe the Faithful" Kane for his excellent contribution and to thank Brethil for this excellent discussion thread!

Gandalf and Undue Influence

Here is a question (And many of these fall under this category, so I won't belabour it after this), to me, of Real World (RW) v. Middle-earth (ME) definitions of "nudging". I do think in RW terms Bilbo does have free will, though Gandalf surely is using potentially unethical means to direct him to a decision (nudging). However, in ME terms I think Gandalf may be exerting perhaps more influence than the Ainur would deem reasonable and that the nudging would certainly be frowned upon with an inscrutable glance from Manwe.

Just how much of 1/14 can a Hobbit carry?

Definitions are important here. I think that "on delivery" means "hand over"; not "deposit at the doorstep of Bag End" The terms of Thorin's contract do not specify the definition of "on delivery", nor are they clear on whether cartage is "impossible" or merely "unreasonable". Since the contract ends with Bilbo's successful completion of his portion of the contract and the handing over of Reward, then any cartage is not part of the original terms of the contract, especially and since Thorin & Company planned to stay at Lonely Mountain (in either condition, living or dead).

How Does One Become a Burglar?

I think that the scene in the Trollshaw is important to Bilbo's character development. He has been nudged out the door, but that does not mean he has done an about-face. I think he feels the need to become what he contracted to be and sees in himself a great deficiency. Stealing from a Troll surely cannot be considered a "real" crime and facing the danger inherent the undertaking would put him on track to face larger dangers.

Here I would like to add a few of my own questions about "Law and Arda". Does the nature of a Troll preclude it from being treated as a part of a legal system? Would their inherent evilness (compare trolls to enemy combatants). Or their non-Children status? Are they more animal than person? Animals have some limited rights in some legal systems, but we in the RW still take things from animals (and plants) without it being considered larceny and adopt pets without it being considered kidnapping (note: I neither advocate for nor argue against these positions, I merely posit them.)

Kane raises the discussion of whether Thorin's contract is a problem because it is for a criminal act. Is it, though? I don't think it is necessarily a criminal act 1) for the reasons I describe below in "the Key is the Key" and also for the differences (which Kane does treat) regarding RW and ME morality. A contract for a burglar seems quite reasonable in the ME Tolkien describes in The Hobbit because in it there seems to be a professionalism surrounding burglary; it feels like the old adage "Honour Among Thieves" would apply here. Like the Game of Riddles with Gollum, there are rules, but they are of a different time and place.

The Key is the Key

I agree with Brethil's argument, since Bilbo is in possession of a key and the means to an unforced entry, and those means were given freely by the rightful owners, then Bilbo does not in fact steal the cup. If an armed person (or dragon) unlawfully took up residence in another's home, the original crime is the unlawful entry by Smaug, not the lawful re-entry by Thorin & Co.

The Arkenstone is another matter, and it is clear that Bilbo think so as well. He knows what he is doing is "wrong" yet there is a higher good that he seems to have access to.

Signatures in Red: A Bloody Business

Not to be too squick-inducing, but I think "red" signifies "blood", as when contracts demanded a "blood oath". While it is not de rigour today, I think it was an ancient/past way of ensuring fealty to the oath/contract. In the case of a will, it may also signify blood relations.

Kings Take the High Road

I think that Theoden's act of mercy for Grima is a signal to his people that he is cured of past Saruman-induced ills, and that he is morally healed. He takes a very high road to do this, but it is this unprecedented act, perhaps, that makes his healing unquestionable. I also think it is shows the incredible power a King must have -- especially in light of events that follow this scene in LOTR -- in order to lead his people and have their loyalty and faith.

On the Sanctity of Marriage and Other Personal Relationships

I apologize profusely, Voronwe, for I am about to commit a crime more heinous than any described here. I am about to ask, "Why didn't you include ____?" By _____, I mean Maeglin (and Eol and Aredhel). Here is a sad story that I don't wish to describe too fully, since it will be next weeks Sil discussion, but there is entrapment and treachery and it ends with Turgon sitting in judgement over Eol on "his high seat holding his staff of doom" and punishment is, well, rather final. I do think that Tolkien understood the happiness that could come from marriage to someone you truly loved, and therefore he wanted to portray that as part of the best qualities of Elves and Edain, but he did not really shy away from showing some horribly tragic circumstances.

As far as lack of ceremony, I turn to our discussion of organized religion a few weeks back. If there is no need to create ways to understand the spirituality of the world because the spiritual and physical are one and the same, then it would seem unnecessary to have a ceremony or other ritual to mark a very personal relationship that is life-long and cannot be undone or otherwise complicated (apart from the few very select cases).

Fabulous, article, Douglas -- hannon le!


telain
Rohan

May 28 2013, 5:38pm

Post #4 of 101 (378 views)
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very interesting [In reply to] Can't Post

and something that I thought/wrote about as well!

And if not "as persons", then what about "as enemies"? People "at war" or enemy combatants have very different rights under the law than do non-combatants.

Would it be wrong to murder a troll? Or is it self-defense? Or is it always OK because there is a state of the world in which all trolls try to kill all Elves, Edain, Dwarves, Hobbits and vice-versa?

Does the nature of the beast (i.e., "good" or "evil") determine the legality of the act?


Brethil
Half-elven


May 28 2013, 6:33pm

Post #5 of 101 (359 views)
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Legal 'personhood' in ME.... [In reply to] Can't Post


In Reply To
Something I found myself thinking about while reading is "who is a person in Middle-earth". This question, while a bit curious, is relevant since a lot of law only applies to persons. In real life, only humans qualify as persons. To remove trinkets found in a magpies nest is not a crime against the magpie, because its not a person. (Of course, there are magpie's trinkets and Magpie's Trinkets....!) Smile

If we are worrying that Bilbo might be criminal in removing gold from trolls or cups from dragons, then I think this means we are assuming that trolls and dragons are persons. If they weren't it would be like my magpie example, I think. It seems reasonable that trolls and dragons are persons- they can reason and talk, for example. Middle-earth Has a number of species which might qualify as persons. That contrasts with real life, where only humans are persons. Law in Middle-earth would need to decide which races qualified for personhood and which didn't. It wouldn't necessarily be easy- consider the legal and moral issues which we have about "who is a person" with just our own species. These include When does personhood start? A legal and ethical conundrum - where do we apply 'law' at all....great question Furuncurunir (exactly as I would expect..) I am sure there would be racial and social limits on who would be considered a recipient of legal protection/rights: is sentience itself enough to apply 'law' to an individual? Does one have to be verbally sentient to be a 'person of law'? And of course in a fantasy setting such as ME the gradient of who qualifies is a much more diffuse scale than we have in the real world. So the some questions: in JRRT's world, do we see sentience as the legal threshold for 'personhood?' Or is there more of a species line drawn, along humanoid lines? If so, where would that leave Orcs, for example? Is there a mandate that parallels creatures 'natural' and created by Eru, thus excluding Orcs from humanoid law? Hmm- this talk of wizards in the dock and under the influence is concerning. Wearing the traffic cones was Elrond's idea, you know. Poor Half-Elves, they just don't hold their liquor like a Maiar. But WHO TP'd Galadriel's favorite Mallorn tree? That's the question. (Although I am fairly certain it was Gandalf who put that lit sparkler in Legolas' breeches.)


Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."


noWizardme
Grey Havens


May 28 2013, 6:38pm

Post #6 of 101 (355 views)
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Great post, telain. I guess I owe you a beer at the Green Dragon for cross- posting [In reply to] Can't Post

Cross-posting rather than cross-dressing...
*sigh* is the entire Council of the Wise Christmas Party story going to come out here? I was hoping that only the traffic cones were widely known.

It was only Saruman who thought it was funny to moon at the Palantir, you know. Just thought I'd get that in first.

Disclaimers: The words of noWizardme may stand on their heads! I'm often wrong about things, and its fun to be taught more....

"nowimė I am in the West, Furincurunir to the Dwarves (or at least, to their best friend) and by other names in other lands. Mostly they just say 'Oh no it's him - look busy!' "
Or "Hold off! unhand me, grey-beard loon!"


noWizardme
Grey Havens


May 28 2013, 6:44pm

Post #7 of 101 (351 views)
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Miruvor slammers....never again...// [In reply to] Can't Post

 

Disclaimers: The words of noWizardme may stand on their heads! I'm often wrong about things, and its fun to be taught more....

"nowimė I am in the West, Furincurunir to the Dwarves (or at least, to their best friend) and by other names in other lands. Mostly they just say 'Oh no it's him - look busy!' "
Or "Hold off! unhand me, grey-beard loon!"


Brethil
Half-elven


May 28 2013, 7:07pm

Post #8 of 101 (362 views)
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Some more interesting ethics... [In reply to] Can't Post


In Reply To
Would it be wrong to murder a troll? Or is it self-defense? Or is it always OK because there is a state of the world in which all trolls try to kill all Elves, Edain, Dwarves, Hobbits and vice-versa?

Does the nature of the beast (i.e., "good" or "evil") determine the legality of the act?




Excellent questions. If the nature of the creature (Trolls, Orcs) are inherently evil and imply destruction (and roasting with sage) of other sentient life forms: so then is a continuous case of self-defense feasible, clear cut across species lines?

And therefore the inverse: is NOT destroying such a threat 'wrong'?

JRRT has some rather surprisingly utilitarian thoughts on a related tangent: (discussing the overthrow of Sauron) "So even if 'the West' had bred or hired hordes of orcs and had cruelly ravaged the lands of other men as allies of Sauron, or merely to prevent them from aiding him, their Cause would have remained indefeasibly right." (Letter # 183)

I have always found this piece of philosophy on JRRT's part fascinating. There is a ruthlessness to the concept, that victory over evil must be obtained even by unconventional means. And he uses the word 'indefeasible' in describing their cardinal aim, a law term implying the lack of ability of legal negation.So based on that sort of idea, that any and all actions are justified in the destruction of evil by 'good' people (with some vocabulary of the Court thrown in), it seems like your idea is on track in ME Telain.

So are we safe in concluding that in ME, the nature of the beast determines the 'good' and perhaps even then the 'lawfulness' of the act; and that maybe a constant state of moral and lawful 'self-defense' can apply? (I am inclining that way myself...)

Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."


Brethil
Half-elven


May 28 2013, 7:27pm

Post #9 of 101 (343 views)
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So many questions back Telain! [In reply to] Can't Post


In Reply To
In the criminal justice system, the Children of Eru (adopted or otherwise) are influenced by three separate, yet equally important groups. Morgoth who is the root of all evil, the High Kings who prosecute the offenders, and the Valar who oversee the proceedings dispassionately.
These are their stories. Dun Dun
Thank you for the intro there!!! Gandalf and Undue Influence
Here is a question (And many of these fall under this category, so I won't belabour it after this), to me, of Real World (RW) v. Middle-earth (ME) definitions of "nudging". I do think in RW terms Bilbo does have free will, though Gandalf surely is using potentially unethical means to direct him to a decision (nudging). However, in ME terms I think Gandalf may be exerting perhaps more influence than the Ainur would deem reasonable and that the nudging would certainly be frowned upon with an inscrutable glance from Manwe. Ahhh, interesting take...so perhaps that inscrutable glance doesn't happen *only* because the task at hand is such a small Dwarven walking party? So do you feel Gandalf is pulling a bit of a fast one here with his mandate?

Just how much of 1/14 can a Hobbit carry?
Definitions are important here. I think that "on delivery" means "hand over"; not "deposit at the doorstep of Bag End" The terms of Thorin's contract do not specify the definition of "on delivery", nor are they clear on whether cartage is "impossible" or merely "unreasonable". Since the contract ends with Bilbo's successful completion of his portion of the contract and the handing over of Reward, then any cartage is not part of the original terms of the contract, especially and since Thorin & Company planned to stay at Lonely Mountain (in either condition, living or dead). I tend to agree with you here...so in that case we may say that on that point the Contract is not voided by the reasonability (or lack thereof) of the carting issues?

How Does One Become a Burglar?
I think that the scene in the Trollshaw is important to Bilbo's character development. He has been nudged out the door, but that does not mean he has done an about-face. I think he feels the need to become what he contracted to be and sees in himself a great deficiency. Stealing from a Troll surely cannot be considered a "real" crime and facing the danger inherent the undertaking would put him on track to face larger dangers.
Agreed! Does his failure though make him a Burglar yet...is the intent enough to classify him, do you think?

Here I would like to add a few of my own questions about "Law and Arda". Does the nature of a Troll preclude it from being treated as a part of a legal system? Would their inherent evilness (compare trolls to enemy combatants). Or their non-Children status? Are they more animal than person? Animals have some limited rights in some legal systems, but we in the RW still take things from animals (and plants) without it being considered larceny and adopt pets without it being considered kidnapping (note: I neither advocate for nor argue against these positions, I merely posit them.) Excellent point, NoWiz brought up similar ideas as well...and I addressed the ideas about self-defense in the post upthread. But this is larceny, not self-defense; so is the same argument applicable, that based on their (OK, I will crack and use the D and D term) alignment, are Trolls exempt from protection from theft? Taking into consideration that they make nothing, so that all they have is stolen from someone else...?

Kane raises the discussion of whether Thorin's contract is a problem because it is for a criminal act. Is it, though? I don't think it is necessarily a criminal act 1) for the reasons I describe below in "the Key is the Key" and also for the differences (which Kane does treat) regarding RW and ME morality. A contract for a burglar seems quite reasonable in the ME Tolkien describes in The Hobbit because in it there seems to be a professionalism surrounding burglary; it feels like the old adage "Honour Among Thieves" would apply here. Like the Game of Riddles with Gollum, there are rules, but they are of a different time and place.
The Key is the Key
I agree with Brethil's argument, since Bilbo is in possession of a key and the means to an unforced entry, and those means were given freely by the rightful owners, then Bilbo does not in fact steal the cup. If an armed person (or dragon) unlawfully took up residence in another's home, the original crime is the unlawful entry by Smaug, not the lawful re-entry by Thorin & Co. And of course we can ask the same question here, as applied to the Trolls: as an inherently evil creature, would the Dragon come under the protection of Law at all? Potentially he would be exempt, as an evil creature (who is also clearly a law-breaker).

The Arkenstone is another matter, and it is clear that Bilbo think so as well. He knows what he is doing is "wrong" yet there is a higher good that he seems to have access to. I agree here: in a way, I think this is the ONLY time Bilbo actually 'steals' anything! And it does rather sanctify him, that he can give up the Jewel for the intention of greater good, a Doug points out, showing the way for Bilbo to later give up the Ring.

Signatures in Red: A Bloody Business

Not to be too squick-inducing, but I think "red" signifies "blood", as when contracts demanded a "blood oath". While it is not de rigour today, I think it was an ancient/past way of ensuring fealty to the oath/contract. In the case of a will, it may also signify blood relations. So a very symbolic statement here...

Kings Take the High Road
I think that Theoden's act of mercy for Grima is a signal to his people that he is cured of past Saruman-induced ills, and that he is morally healed. He takes a very high road to do this, but it is this unprecedented act, perhaps, that makes his healing unquestionable. I also think it is shows the incredible power a King must have -- especially in light of events that follow this scene in LOTR -- in order to lead his people and have their loyalty and faith.
Perhaps he must go beyond Rohirrim law, considering that he himself has probably crossed that line as Saruman's captive...?

On the Sanctity of Marriage and Other Personal Relationships

I apologize profusely, Voronwe, for I am about to commit a crime more heinous than any described here. I am about to ask, "Why didn't you include ____?" By _____, I mean Maeglin (and Eol and Aredhel). Here is a sad story that I don't wish to describe too fully, since it will be next weeks Sil discussion, but there is entrapment and treachery and it ends with Turgon sitting in judgement over Eol on "his high seat holding his staff of doom" and punishment is, well, rather final. I do think that Tolkien understood the happiness that could come from marriage to someone you truly loved, and therefore he wanted to portray that as part of the best qualities of Elves and Edain, but he did not really shy away from showing some horribly tragic circumstances.
As far as lack of ceremony, I turn to our discussion of organized religion a few weeks back. If there is no need to create ways to understand the spirituality of the world because the spiritual and physical are one and the same, then it would seem unnecessary to have a ceremony or other ritual to mark a very personal relationship that is life-long and cannot be undone or otherwise complicated (apart from the few very select cases).
It highlights his intrinsic idea of fea and hroa then...the link between the spirit and the body. And perhaps that supersedes the definition of that relationship by a law? Making it the higher mandate?

Fabulous, article, Douglas -- hannon le!
Agreed!


Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."


CuriousG
Valinor


May 28 2013, 7:30pm

Post #10 of 101 (341 views)
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Disturbingly ruthless [In reply to] Can't Post

I have to save a full reply to the OP for when I get home from work, but for now, just a quick dash to say I find Tolkien's rationale very disturbing. It's okay to employ orcs to fight Sauron? One of the things that made Saruman bad was that he employed orcs. It would have been okay for Aragorn or Eomer to hire orc mercenaries and pillage Dunland to prevent the Dunlendings from aiding Saruman? Shocking, to me. It sounds like "to fight the enemy, we must become like the enemy," or maybe without the "must," it's still okay to become like the enemy. But the enemy is evil, so if you're fighting evil and become evil yourself...

It seems at odds with positions taken by Tolkien's noblest characters:
Faramir didn't enjoy killing anybody, Frodo pitied the ruffians (even half-orcs) and forgave Saruman, and Gandalf pitied Sauron's slaves, which I interpret as nearly all of Sauron's servants, because orcs serve him out of fear and not voluntarily, and if we're just talking about slaves that have been taken captive (e.g., people of Gondor), then everyone would feel sorry for them anyway, and there'd be no need for Gandalf to state the obvious to Denethor.


Otaku-sempai
Half-elven


May 28 2013, 7:42pm

Post #11 of 101 (342 views)
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Saruman and Orcs [In reply to] Can't Post

Dealing with Orcs was a sign of Saruman's corruption. He did not do so openly at first, but only in secret. It wasn't until he fell completely into evil that he gave up any serious pretense of innocence of meddling in Rohan.

'There are older and fouler things than Orcs in the deep places of the world.' - Gandalf the Grey, The Fellowship of the Ring


noWizardme
Grey Havens


May 28 2013, 7:46pm

Post #12 of 101 (354 views)
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Letter 183 is an eye-opener then [In reply to] Can't Post

Maybe the idea is that causes and methods are both open to moral and legal questioning. Your cause can be right but your methods wrong. And I suspect the danger is that wrong methods remain all to convenient after right cause has been abandoned or compromised.

Otherwise, surely, its OK for Gandalf to accept the Ring from Frodo, and use it to down the Dark Lord...

Disclaimers: The words of noWizardme may stand on their heads! I'm often wrong about things, and its fun to be taught more....

"nowimė I am in the West, Furincurunir to the Dwarves (or at least, to their best friend) and by other names in other lands. Mostly they just say 'Oh no it's him - look busy!' "
Or "Hold off! unhand me, grey-beard loon!"


CuriousG
Valinor


May 28 2013, 8:07pm

Post #13 of 101 (346 views)
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Yes, that's what is puzzling [In reply to] Can't Post

The Wise repeatedly refuse to take the Ring for the purpose of fighting Sauron because they don't want to become like him. But Tolkien said it was okay to be like Sauron in using orcs to pillage and plunder other men? Doesn't add up for me.


Brethil
Half-elven


May 28 2013, 10:02pm

Post #14 of 101 (329 views)
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I think the issue must be intent [In reply to] Can't Post


In Reply To
I have to save a full reply to the OP for when I get home from work, but for now, just a quick dash to say I find Tolkien's rationale very disturbing. It's okay to employ orcs to fight Sauron? One of the things that made Saruman bad was that he employed orcs. It would have been okay for Aragorn or Eomer to hire orc mercenaries and pillage Dunland to prevent the Dunlendings from aiding Saruman? Shocking, to me. It sounds like "to fight the enemy, we must become like the enemy," or maybe without the "must," it's still okay to become like the enemy. But the enemy is evil, so if you're fighting evil and become evil yourself...

It seems at odds with positions taken by Tolkien's noblest characters:
Faramir didn't enjoy killing anybody, Frodo pitied the ruffians (even half-orcs) and forgave Saruman, and Gandalf pitied Sauron's slaves, which I interpret as nearly all of Sauron's servants, because orcs serve him out of fear and not voluntarily, and if we're just talking about slaves that have been taken captive (e.g., people of Gondor), then everyone would feel sorry for them anyway, and there'd be no need for Gandalf to state the obvious to Denethor.




Of course Saruman was using Orcs for his own purposes of domination - I guess in the statement that if he had marched on Mordor, the intent would have been different. Evil or dark power in the right hand being able to be used for good? It's a strong statement I think about the ethics of war, which of course he had seen firsthand in a very real way. I feel like he had no illusions on that front.

Of course I guess Orcs are different than the Ring - (and I don't know how literally we can take the statement) - as no one can actually use the Ring but Sauron. In the same Letter JRRT discusses that he does nor believe in Absolute Evil...so I think it comes back to the cardinal goal. He also discusses how in modern day times the analogy applies to people fighting tyranny, even if their methods aren't always drawing-room pretty.

I related it right away to Telain's point about the nature of the target of an action sort of defining its legality (and morality). It seems like he is saying that if the target is oppressive evil, the actions are justified.

I think your point about using evil to fight evil is a tightwalk rope: if you keep true to your purpose, you are good. Once your purpose varies (like Sauron's did) you have indeed crossed over.

(Can't wait to see your full reply BTW!) Cool

Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."


Voronwė_the_Faithful
Valinor

May 28 2013, 10:10pm

Post #15 of 101 (356 views)
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That's not what Tolkien actually said [In reply to] Can't Post

The quote from Letter 183 is being taken out of context. While he does say that if the Free Peoples had engaged in evil actions such as using orcs to pillage and plunder their "Cause would have remained indefeasibly right" that does not mean that the taking of those evil actions would be justified or right. As he says earlier in the same letter:

"Of course to a judge whose moral ideas have a religious or philosophical basis, or indeed to anyone not blinded by partisan fanaticism, the rightness of the cause will not justify the actions of its supporters, as individuals, that are morally wicked."

Cheers! (Glad my paper has stimulated such an interesting discussion for y'all!)

'But very bright were the stars upon the margin of the world, when at times the clouds about the West were drawn aside.'

The Hall of Fire


Brethil
Half-elven


May 28 2013, 10:49pm

Post #16 of 101 (333 views)
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Would Orcs be evil...in a war machine sense? [In reply to] Can't Post


In Reply To
The quote from Letter 183 is being taken out of context. While he does say that if the Free Peoples had engaged in evil actions such as using orcs to pillage and plunder their "Cause would have remained indefeasibly right" that does not mean that the taking of those evil actions would be justified or right. As he says earlier in the same letter:
"Of course to a judge whose moral ideas have a religious or philosophical basis, or indeed to anyone not blinded by partisan fanaticism, the rightness of the cause will not justify the actions of its supporters, as individuals, that are morally wicked."


Of course if one did use Orcs against a dark power, ie: Sauron, would their actions be morally wicked in the context of war? Considering that is rather their bailiwick, and total war against evil would be the aim. I have sort of read the whole argument in that Letter as rather equalizing actions in war: in the context of battle and war, do the actions of good or evil vary all that much? (Not any actions taken outside of that, for example Orcs allied with the Men of the West casually eating a village of Rohirrim on the way to the fight would definitely be a moral/clearly legally wrong issue!)

Cheers! (Glad my paper has stimulated such an interesting discussion for y'all!)
Thank YOU again Doug!!!! AngelicSmile Indeed it has!


Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."


Brethil
Half-elven


May 28 2013, 11:22pm

Post #17 of 101 (313 views)
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Wonder if we can see ME as a continual state of war? [In reply to] Can't Post


In Reply To

And if not "as persons", then what about "as enemies"? People "at war" or enemy combatants have very different rights under the law than do non-combatants.
Because if the underlying divinity and anti-divinity theme it the ME universe....in which case 'enemies' are always enemy combatants, at any time? That perhaps too would impact the legality of actions taken against some of the examples you named earlier - Trolls, Orcs, etc?

Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."


Brethil
Half-elven


May 28 2013, 11:31pm

Post #18 of 101 (321 views)
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Finally have time to ponder all your points Telain... [In reply to] Can't Post


In Reply To

Signatures in Red: A Bloody Business
Not to be too squick-inducing, but I think "red" signifies "blood", as when contracts demanded a "blood oath". While it is not de rigour today, I think it was an ancient/past way of ensuring fealty to the oath/contract. In the case of a will, it may also signify blood relations. I was feeling too that the need for so many signatures - as you say 'in blood', symbolic even - stresses both the familial connections in the society, as well as implying a certain lack of privacy! Just asking enough people in for the 7 signatures rather guarantees that your business isn't very secret! It seems to tell of a rather simple, transparent culture maybe? In Hobbiton it seems everyone knows everyone's business, and nothing is 'hole and corner' (despite Lobelia's irritation) not without that many eyes upon it!



Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."


telain
Rohan

May 29 2013, 12:39am

Post #19 of 101 (304 views)
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It comes in pints!?! [In reply to] Can't Post

Beer at the Green Dragon (check) just name the time and place.

Doesn't it strike you odd that the line "It comes in pints" is delivered by a character that might be called "pint-sized"?

Yes. The fatigue. Has set in.


Brethil
Half-elven


May 29 2013, 12:45am

Post #20 of 101 (304 views)
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The ideal Hobbit T-shirt? [In reply to] Can't Post


In Reply To

"It comes in pints"




Really a perfect shirt logo for a Hobbit, isn't it?

Manwe, when asked a simple "Yes" or "No" question, contemplated, and responded "the middle one."


telain
Rohan

May 29 2013, 1:01am

Post #21 of 101 (305 views)
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questions! questions that don't have answers! [In reply to] Can't Post

Or don't have very coherent ones, considering I'm rather tired at the moment!


Quote
Ahhh, interesting take...so perhaps that inscrutable glance doesn't happen *only* because the task at hand is such a small Dwarven walking party? So do you feel Gandalf is pulling a bit of a fast one here with his mandate?


Oh I think Gandalf is flying -- by Eagle or Balrog -- under the radar here. But! And this may have some bearing on further discussions, Reading The Hobbit by itself does not (obviously) garner this opinion -- it is only when reading it in the context of the rest of the works that it does.

I think that while Douglas has produced a very good argument about the nature of legality in the main works (TH, LoTR, Sil) i.e., how legality goes from very like RW in TH to very green sun-ish in the Sil, I also think it is important to understand the nature of these works. please forgive the shorthand, happy to explain further if this is all a bunch of nonsense... TH is a children's book, so (to me) the legality is there in some ways as a conduit and as comedy. LoTR is an epic, so the legality is a juxtaposition of RW and Higher Morality/Higher Ground issues. The SIl is a collection of archival notes, papers, legends, stories, etc., so the legality there is very tenuous and very much in favour of how the Higher Powers (Valar) understand what is morally good (or bad). Almost "the making of morality".


Quote
so in that case we may say that on that point the Contract is not voided by the reasonability (or lack thereof) of the carting issues?


Agreed!


Quote
Does his failure though make him a Burglar yet...is the intent enough to classify him, do you think?


I think so, because in Bilbo's mind he is trying.

As for whether trolls or dragons come under the protection of the law -- just as you wrote that, I would say "no." It seems to put it into sharp relief. Trolls and dragons are bent on evil/immoral acts, what exactly would the law be protecting? Tolkien's world is actually much simpler than ours in some ways, as evil is almost definable, and those that are good and have been corrupted are also easy to identify.


CuriousG
Valinor


May 29 2013, 1:19am

Post #22 of 101 (305 views)
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Criminal minds think alike [In reply to] Can't Post

1. Yet also taking into account his own independent inclination to proceed, do you feel his free will was, or may have been, violated?
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!


CuriousG
Valinor


May 29 2013, 1:37am

Post #23 of 101 (296 views)
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That's a really fascinating question, Wiz. [In reply to] Can't Post

And has me a-pondering. Maybe I can come back with questions and comments later. Initially, I'm tempted to say that persons in MEarth are the good guys, and being a bad buy makes you an un-person (since everyone was good at some point).

I think Men are persons, even those led astray by bad guys. It's significant that all the orcs at Helm's Deep are slaughtered, but the Dunlendings are spared. And there's Sam feeling pity for the Southron soldier (though there's no pity for them on the Pelennor Fields). There are virtually no bad hobbits or bad Elves, and though there may be some bad Dwarves, we only see the good ones. Treebeard comments that there are bad trees, but as you say, is a sentient tree a person? There are intelligent mammals like bears and wolves that aren't granted personhood (and they can talk in Narnia if not in MEarth). So I keep coming back to persons being virtuous, but I'll stew some more (with some herbs and rabbits).


CuriousG
Valinor


May 29 2013, 1:43am

Post #24 of 101 (293 views)
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Oops, forgot the obvious: Thank you too for sharing your work, Mr Kane!! // [In reply to] Can't Post

 


CuriousG
Valinor


May 29 2013, 1:59am

Post #25 of 101 (306 views)
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There's context and then there's canon, I suppose [In reply to] Can't Post

Depending on the day of the week that you ask me and what I've seen on the news, I am either for or against capital punishment. I could put in writing "I want that @^#&!! to burn!" and another day write, "Well, let him rot in jail with the .00000001% chance that he'll redeem himself." By comparison, I don't think that everything Tolkien wrote in a letter should be taken as canon, so I probably overreacted in my hasty reply from work. He was clearly following a train of thought and writing in a certain context. I think context equally applies to his famous quote about LOTR being "a fundamentally religious and Catholic work"--he said that to a priest, right? In college, I would say mild, gentle things in letters to my grandmother that of course were contradicted in letters to my friends. We all tailor messages to an audience.

Going back to our discussion of Tolkien and the Law, what I would distill in general from his sentiments is that he felt that Good should fight against Evil, and given a divine moral imperative, that meant what Good did in that fight was legally permissible. Hence there are no antiwar activists outside Minas Tirith waving a red flag of Sauron chanting, "Better red than dead." And while Frodo is a noble peace activist, Merry bluntly tells him he's not going to save the Shire that way. Was it legally right to kill the ruffians? Are they persons, as Wiz asks? They fall between the cracks, it seems. But hobbits are clearly persons and Frodo forbids killing any of them, and it seems that no one else has an appetite to kill them either despite their treason. There also seems no desire to kill Lotho, but the hobbits are tempted to kill Saruman--is he a person, according to Shire laws? I don't think so, therefore they see it as permissible. And I think he'd forfeited his rights to being a legal person within the context of the story and the Valar, hence there was no forgiveness for him from that wind from Manwe that blew him the wrong way.

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