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....!)

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.)

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?

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!

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.

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!!!! Indeed it has!

"It comes in pints"

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?

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?

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