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Property Law in the Lord of the Rings:

Canadian law student Jacob Kaufman has posted this interesting article about property law in the Lord of the Rings. I actually once created a handout for my Property class on how LOTR is really about the different modes of property acquisition. Sadly, literary critics have neglected this crucial aspect of Tolkien's masterpiece for too long. Fortunately, property professors and students in at least two countries have begun to fill the gap in the scholarly literature. Below the fold is my handout. You will never see the Ring the same way again. It turns out that property law is even more important in Tolkien's work than in Jane Austen's.

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UPDATE: In addition to the primary property dispute over the ownership of the Ring, there are several other conflicts over property in the Lord of the Rings, such as the claim of Rohan's neighbors that the Riders wrongfully disposessed them of their land, the conflicting claims to ownership of Moria as between the Dwarves and the Balrog, and Aragorn's claims to inherit the lands and other property of his ancestor Isildur. The chapter on "The Scouring of the Shire" with its scathing portrayal of Saruman's "Gatherers and Sharers" and Saruman's nationalization of industry is a thinly veiled attack on socialism. None of this is to say that Tolkien was some kind of libertarian. He hated modern industry and capitalism. But he did have a conservative traditionalist's attachment to private property, and it comes through in the book at many points.

Soronel Haetir (mail):
As for any patent disputes regarding the creation of the Ring, we can only assume that the Elves licensed any IP involved, because Sauron gave them a great deal of assistance in the creation of the other rings of power.

Just because they weren't aware of all the ramifications of that license is no reason to declare the contract void.
3.30.2008 3:55am
CDU (mail) (www):
What about the possibility that Smeagol is Deagol's lawful heir? Though again the fact that Smeagol killed to get it certainly creates a problem for his legal claim.

Acquisition V may actually another example of Acquisition by Find. While he told his friends he won it in the riddle game, Bilbo later admitted that he had found it before meeting Gollum (the riddle game was to determine whether Gollum would eat him or show him the way out). Of course which version is correct depends on the legal status of a retcon.
3.30.2008 4:03am
Ilya Somin:
As for any patent disputes regarding the creation of the Ring, we can only assume that the Elves licensed any IP involved, because Sauron gave them a great deal of assistance in the creation of the other rings of power.

Maybe, but he was apparently just an employee (or at best an independent contractor) of Eregion, Inc., which retained the IP rights to his work product.
3.30.2008 4:28am
theobromophile (www):
As for any patent disputes regarding the creation of the Ring, we can only assume that the Elves licensed any IP involved, because Sauron gave them a great deal of assistance in the creation of the other rings of power.

International patents only last from 20 years from the date of filing of the application. After that, the information is in the public domain. It would make more sense, given the Elven longevity and the capacity for evil to flourish for generations, to keep this knowledge as a trade secret and license where appropriate.
3.30.2008 4:45am
Jim at FSU (mail):
I wish my property class had been this awesome.
3.30.2008 5:18am
Dave Hardy (mail) (www):
Jane Austen was actually Jim Austen. He created the alias because he hoped to get into George Elliot's pants. Or skirt.
3.30.2008 5:26am
Lior:
I believe Bilbo "wavers" before bequeathing the ring to Frodo.
3.30.2008 6:40am
Nessuno:
And how, I wonder, might one characterize returning the One Ring to the Fires Whence it Cameā„¢?
3.30.2008 6:52am
Simon (391563) (mail) (www):
Heidi Bond got to the "LOTR &the Common Law" first, four-plus years ago.

(I can't figure out how to make the link work, but if you add http://web.archive.org/web/20040201232402/ and then http://blog.qiken.org/archives/000196.html you should be able to find it.)
3.30.2008 7:55am
PersonFromPorlock:
Cute, but absent a state to enforce all this 'law' it comes down to bash-bash-bash. Everything else is just whining to God.
3.30.2008 8:17am
FantasiaWHT:
Clever, but I don't see how Smeagol's gain is adverse possession. In what way is it different than the acquisition by conquest of Isildur?
3.30.2008 9:17am
Sasha Volokh (mail) (www):
On the Ferengi Rules of Acquisition, see my own work: Alexander Volokh, Privatization and the Law and Economics of Political Advocacy, 60 Stan. L. Rev. 1197, 1253 n.249 (2008):

See, e.g., Seymour Melman, Pentagon Capitalism: The Political Economy of War 8 (1970) (describing the Vietnam war as beneficial for Department of Defense officials); see also Aaron L. Friedberg, In the Shadow of the Garrison State 294-95 (2000) (arguing that if arms were made by government instead of by private contractors, "[p]ublic producers might actually have been better situated than their private counterparts to delay or prevent deep reductions in military spending ... it is difficult to believe that a large, deeply entrenched public bureaucracy with nowhere to go but out of business would have been a less effective opponent of peace"); id. at 295 (citing F.M. Scherer, The Weapons Acquisition Process: Economic Incentives 388 (1964)). Compare also Fer. R. Acq. 34 ("War is good for business."), with Fer. R. Acq. 35 ("Peace is good for business."), in Quark, The Ferengi Rules of Acquisition 19, 21 (Ira Steven Behr ed., 1995).
3.30.2008 10:11am
gattsuru (mail) (www):
The claim may be tenuous because it is not clear whether he made illegal use of the elves' patented production processes (the suspicion of illegality is strengthened by the fact that Sauron made every effort to keep the elves from finding out what he was doing).


The methodology to create the rings was developed by Sauron, as even the Three Rings created as by an independent worker were based on his knowledge. At the time, however, Sauron was working under a pseudonym, 'Annatar' or 'Lord of the Gifts', and appeared to make his techniques public knowledge rather than attempt any patent processes, nor did the Elves attempt to do so.

That said, his liability for the corrupt processes involved in the creation of the Seven and the Nine would probably fall afoul of more than a few laws, and the One was pretty clearly an unlawful device, as it its intended purpose was the domination of the wills of other individuals, a purpose for which it was immediately used, making Sauron's claims likely to be problematic under statutory reasons.
3.30.2008 11:08am
DiverDan (mail):
Re: Item V., Bilbo's "Acquisition by Agreement". I think it is pretty clear from The Hobbit that the Ring was NOT an "agreed upon stake", and Bilbo in fact broke the rules of the game. Bilbo found the ring on the floor of the maze-like trails in the mountain caverns, and when he stumbled into Gollum's lair, the two agreed to a Riddle contest, with the winner to get what he wanted from the other; for Bilbo, that meant a guide to lead him out, for Gollum, that meant a tasty meal of Hobbit. Gollum had no idea that Bilbo had the Ring, until Bilbo violated the sacred rules of the Riddle Contest when, stumped to come up with a real riddle, he asked "what have I got in my pocket?" When Gollum could not guess (until later, while showing Bilbo out), Gollum complied with the agreement by leading Bilbo out of the caverns. Bilbo's acquisition was really another example of Acquisition by Discovery, just like Deagol.
3.30.2008 11:41am
Ventrue Capital (mail) (www):
Depending on how you want to define The Lord of the Rings you can also say the whole thing started with a dispute over the ownership of the Silmarils. Not just between Morgoth and the Noldor, but between the Noldor and Eru, who told them "Let them go, don't worry about getting them back."
3.30.2008 12:23pm
Pennywit (mail):
Interesting analysis, but what court holds jurisdiction over the conflicting claims of ownership over the One Ring?
3.30.2008 12:35pm
ERic (mail):
I don't see how the ring could be legitimately considered property at all. For one thing, it's intended use is exclusively malicious, something which can't be said for any property in our own world. Seondly, in the philosophical sense, only Sauron could posess the ring, as all others who held it were actually possesed by it(Tom Bombadil or whatever his name was excluded). That really can't be said of anything in this world either, not in the sense of truly being possesed by rather than simply desiring an object. It seems that the good guys had it right in destroying the ring, as it simply didn't have a right to even exist.

At any rate, one thing is surely clear: LOTR would've been a god-awful story if there had been lawyers in Middle Earth.
3.30.2008 12:39pm
JB:
They both resort to illegal self-help remedies rather than bringing the appropriate common law action and a preliminary injunction against destruction of the Ring before the case can be heard.

Best line ever. But would have made for a boring story.
3.30.2008 12:50pm
Soronel Haetir (mail):
Fantasia,

Isildur's conquest differs in that it was 'legitimate', the aim of the Last Alliance was to at Sauron. The Ring was merely one foul prize of that war.

Smeagol's sole purpose in killing Deagol was to take the Ring for himself.
3.30.2008 1:17pm
Jmaie (mail):
I hate to nit pick, but Smeagol and Deagol were NOT hobbits.
3.30.2008 1:18pm
ReaderY:
The Ferengi Rules of Acquisition would seem the more appropriate comparator here. Their courts and laws would seem to have at least as much jurisdiction over Middle-Earth as American courts and the common law.
3.30.2008 1:19pm
DDG:
Interesting analysis, but what court holds jurisdiction over the conflicting claims of ownership over the One Ring?




None. International law is an illusion in the absence of compulsory measures of enforcement of judgment. Thus, the War of the Ring.
3.30.2008 1:20pm
thadthor:

As for any patent disputes regarding the creation of the Ring, we can only assume that the Elves licensed any IP involved, because Sauron gave them a great deal of assistance in the creation of the other rings of power.

Just because they weren't aware of all the ramifications of that license is no reason to declare the contract void.


The construction contract, not the IP is void. The One Ring was crafted by the Elves, but it was designed by Sauron. Since the Elves made that specific ring and since Sauron breached the contract with them in its creation (that it wouldn't enslave all the free peoples of Middle Earth), the property of the ring falls back to the Elves. And they elected to destroy it. If Sauron wants he can go try to find another construction firm to make his product.
3.30.2008 1:32pm
Bob from Ohio (mail):

Smeagol and Deagol were NOT hobbits


I am not sure about that statement. My recollection is that thy were Stoors which are hobbits.

Smeagol at the time of LOTR was certainly unlike any hobbit in history but that was due to the Ring.
3.30.2008 1:40pm
gattsuru (mail) (www):
The One Ring was crafted by the Elves, but it was designed by Sauron. Since the Elves made that specific ring and since Sauron breached the contract with them in its creation


No, the One Ring was forged by Sauron, in secret. The Nine and Seven were forged by the Elves under his guidance and the Three were made by a single Elf with his techniques but without his knowledge.
3.30.2008 2:02pm
GMS:
I believe Smeagol and Deagol are hobbit-like creatures, ancestors of the modern hobbits. Proof that evolution works way faster in Middle Earth...
3.30.2008 2:04pm
Bruce:
Because Gollum's possession of the Ring is open and notorious

It's not *that* open and notorious -- he spends most of his post-acquisition time living in isolation in a cave.
3.30.2008 2:13pm
UChicago1L:
Heh. A prof here actually gave a property exam a couple years ago based on LOTR. Of course, he didn't stay true to the material (I assume to make it less complicated and/or to make sure people with extensive familiarity with the material don't have an advantage- or disadvantage as the case may be). But it was still pretty creative.
3.30.2008 2:19pm
Brian Macker (mail) (www):
Philosophically property rights are grounded in reciprocity. Saurons initial creation of the ring was with the intent to deprive others of their right to property. Therefore he cannot rightly claim ownership as he has undercut the very reason that others have reciprocally agreed to respect his property rights.

That's why criminals can lose their freedoms (rights to freedom) when they trespass against others.

Of course it must be proportional and in Saurons case the intent and actions were devised in such a way as to bring the entire social order into collapse. Thus not only needn't other respect his property rights in the ring but they could take further actions against Sauron in order to protect themselves.
3.30.2008 2:35pm
Sauron's Lawyer (mail):
This is the page that Simon (391563) was talking about above: Heidi Bond on LOTR
3.30.2008 2:38pm
Ben P (mail):

I am not sure about that statement. My recollection is that thy were Stoors which are hobbits.

Smeagol at the time of LOTR was certainly unlike any hobbit in history but that was due to the Ring.


If I recall correctly the language was something along the lines of "quite similar to" Hobbits. I know about where the passage is but don't have copy here at the moment.

The ring's effect was what turned Smeagol from a Human like character to how is described. The ring artifically prolonged his life and caused him to become thin and drawn. Bilbo describes this in the opening chapters of the Fellowship, where, as he's celebrating his "eleventy first" birthday (making him uncommonly old) that he feels "thin inside, ... like a pat of butter spread over too much bread."

and that's my nerd commentary of the day. But I am forwarding this to my old property professor, I think he'd get a kick out of it.
3.30.2008 4:00pm
A.W. (mail):
> how LOTR is really about the different modes of property acquisition

You know, its this kind of lame line that puts professors into disrepute. No, even with your exposition, LOTR is not "about" property acquisition. Its about a war between a bunch of monsters v. nice creatures. Sheesh.

As far as the rules of property, you are forgetting that there is no civil society between Sauron and the humans, elves, hobbits, etc. So the real right to this property is not based on rational argument. It is based on Sauron's need for the ring, and his power, and nothing else. its might makes right--or at least an attempt at that. Meanwhile, it is equally always believed the ring belongs to whatever creature can claim it among humans, etc.

At best you can say that there is a running thread of different methods by which we can FEEL we own a thing. Whatever.
3.30.2008 4:22pm
Bruce:
Compare also Fer. R. Acq. 34 ("War is good for business."), with Fer. R. Acq. 35 ("Peace is good for business."), in Quark, The Ferengi Rules of Acquisition 19, 21 (Ira Steven Behr ed., 1995).

Sasha, that's brilliant. It would never have occurred to me that there might be proper Bluebook format for citing the Ferengi Rules of Acquisition.
3.30.2008 4:59pm
NickM (mail) (www):

Because Gollum's possession of the Ring is open and notorious

It's not *that* open and notorious -- he spends most of his post-acquisition time living in isolation in a cave.


It's not only that. No one ever sees Gollum with the Ring on.

Nick
3.30.2008 5:33pm
Mark E (mail):
"However, Gollum's claim is defective because a claim of adverse possession cannot succeed if it resulted from a criminal act by the claimant."

-- Non lawyer view, but isn't the definition of 'adverse possesion' = theft or tresspass were the victim either isn't aware of the crime and does not or cannot do anything to correct the situation for some (long) period of time?

if this to true, then how can any adverse possession stand since all result from a criminal act?
3.30.2008 5:52pm
Ilya Somin:
Non lawyer view, but isn't the definition of 'adverse possesion' = theft or tresspass were the victim either isn't aware of the crime and does not or cannot do anything to correct the situation for some (long) period of time?


No, the victim does in fact have to be aware of it (thus, the requirement that it be "open and notorious"), and then not do anything about it for a long time. In this case, the victim (Deagol) Didn't act because Gollum killed him.
3.30.2008 5:59pm
robbbbbb (mail) (www):

Bilbo gives the Ring to his nephew Frodo Baggins. His intention to give Frodo the ring is clear (though he waivers initially), and he hands the ring over in person, thereby effecting proper delivery.


I'm surprised that someone else didn't nitpick on this subject, but this isn't quite true. Bilbo doesn't give the ring to Frodo in person. He leaves it in an envelope on the mantelpiece. (And, in fact, Gandalf has to browbeat him into it.) Bilbo has serious attachments to The Precious due to its nature, and has a very difficult time giving the ring away.
3.30.2008 6:08pm
Mark E (mail):
Thanks Ilya -- "No, the victim does in fact have to be aware of it (thus, the requirement that it be "open and notorious"), and then not do anything about it for a long time"

--- But, then how did the lawyer in Colorado (Boulder?) recently get away with an adverse posession of 1/3 of his nieghbor's yard?

Not only did the neighbor's not know of it, there was (according to news reports) photos &sat images showing that the paths "proving possession" appeared shortly before the adverse possession claim was lodged?
3.30.2008 6:08pm
Dennis Nicholls (mail):
As rob states above, Bilbo drops the ring in its envelope, and Gandalf snatches it up and puts it onto the mantlepiece.

However, Bilbo did write "to Frodo" on the envelope, which may be a writing satisfying the Statute of Frauds for a property transaction. At the least it should be found to be a Deed of Gift.
3.30.2008 6:37pm
Dennis Nicholls (mail):
Actually there's an interesting problem of the One Ring under the Rule Against Perpetuities. A mortal who possesses the Ring does not die.
3.30.2008 6:47pm
SH:
"The Lord of the Rings was written for the purpose of explicating the different modes of property acquisition."

I guess that's supposed to explain why Tolkien spent an enormous part of his life constructing fictional languages, maps and ancient histories.
3.30.2008 7:01pm
Soronel Haetir (mail):
Another problem occurred to me.

When possessed by someone other than Sauron the Ring has at least some volition independant of the possessor. Perhaps custody law needs to be addressed.
3.30.2008 7:03pm
betsybounds:
Interesting. NickM says, "No one ever sees Gollum with the Ring on." Is that important in property law?

But then, because of its properties, no one ever sees anyone with the Ring on, right?
3.30.2008 7:07pm
zippypinhead:
Speaking of the Rule Against Perpetuities, the contingent property rights reversion to the Kingdom of Gondor that was ultimately exercised by Aragorn should have been readily voidable in a court of competent jurisdiction.

Suggesting that Steward Denethor should have consulted with legal counsel rather than trying that extralegal remedy involving a funeral pyre...
3.30.2008 7:23pm
Soronel Haetir (mail):
Tom Bombadil is visible while wearing the Ring. And given that Sauron and Isildur (and someone else whose name eludes me tight now) engaged in hand to hand combat there is reason to believe that Sauron was visible while wielding it.
3.30.2008 7:46pm
Roscoe (mail):
I don't think you can have adverse possession of personal property, even if Gollum's possession of the ring was of such a character as to provide actual notice to the owner.
3.30.2008 8:02pm
LongHairedWeirdo (mail) (www):
DiverDan:

Actually, although Bilbo did not come up with a proper riddle, it is acknowledged by all experts in the law of the matter (ref: "The finding of the ring" in the start of LOTR) that, once Gollum had demanded three guesses, he had agreed to a suspension of the standard rules of the riddle game, and was bound by the results.

However, it's true: the ring was not the stake. The agreement was that Bilbo would be led to the surface if he won. Note that, once Gollum was faced with this obligation, his intention was to use the ring to murder Bilbo anyway.

If someone tries to kill another, and is unable to do so because the second has taken the gun - quite by accident, as it turns out - of the first, is the second allowed to retain ownership of the gun? It would seem likely that this question has arisen in the past, and that the answer would carry over to this situation as well.
3.30.2008 8:06pm
betsybounds:
Soronel is correct, and I had forgotten. Tom Bombadil was outside the influence of evil, so the Ring didn't affect him, neither did he lust for it. It's been, oh, 35 years since I read the LOTR, and I've forgotten many details (and Bombadil doesn't appear in the LOTR films).

Another thought: I've never considered property law in relation to the Harry Potter books, but it's interesting to note that goblins in that series regarded anything they had created and crafted as their own, no matter who and commissioned it or later came into possession of it (Horcruxes come to mind). Sauron appears to have believed the same of the Ring--and the Ring seems to have agreed with him!
3.30.2008 8:41pm
betsybounds:
Sorry--I was thinking of Gryffindor's sword, which was goblin-wrought, but which was not a Horcrux.
3.30.2008 9:27pm
Ken Arromdee:
As I said last time this turned up, this is very much a case of "when the tool you have is a hammer, every problem looks like a nail", where the hammer is property law. Sauron wanting the Ring had nothing to do with ownership in any sense greater than "if I can take it, I'll own it". If the Ring had never had any connection to Sauron in the past, but was otherwise the same, Sauron would still have wanted it and done just as much to try to get it.
3.30.2008 9:29pm
Heir of Elendil (mail):
The effects of the One Ring upon its wearer were proportionate to the wearer's native will and powers-- a "power user" like Sauron remained visible while wearing it. Only lesser beings (or, more specifically, mortals) became invisible while wearing the Ring. Tom Bombadil is likewise a enigma within the LOTR universe-- at least as strong as Sauron himself but indifferent to it all
3.30.2008 9:42pm
Bama 1L:
The chapter on "The Scouring of the Shire" with its scathing portrayal of Saruman's "Gatherers and Sharers" and Saruman's nationalization of industry is a thinly veiled attack on socialism.

Tolkien repeatedly denied making any contemporary political statements in his fiction.
3.30.2008 11:00pm
Lev:

Bilbo violated the sacred rules of the Riddle Contest when, stumped to come up with a real riddle, he asked "what have I got in my pocket?" When Gollum could not guess (until later, while showing Bilbo out), Gollum complied with the agreement by leading Bilbo out of the caverns. Bilbo's acquisition was really another example of Acquisition by Discovery, just like Deagol.


Two nerd points:

1. as pointed out earlier, when Gollum agreed to the question "what have I got in my pocket" so long as he got three tries, it became proper.

2. Gollum did not lead Bilbo out of the caverns. Gollum headed for the exit so he could catch and strangle Bilbo and get the precious back, Bilbo merely followed Gollum who didn't know he was being followed, then, if memory serves, jumped over him.


No one ever sees Gollum with the Ring on.


Right...because it makes him invisible.
3.30.2008 11:56pm
Lev:
Another nerd point:

Sauron put a great deal of his own power into the ring at its forging.
3.31.2008 12:12am
Julian Droms:
>
> Clever, but I don't see how Smeagol's gain is adverse
> possession. In what way is it different than the
> acquisition by conquest of Isildur?
>
I think it relates to the fact the Isildur is a sovereign. Acquisition by conquest must be on behalf of a sovereign (e.g. state, monarch) in which case ownership transfers to the sovereign subsequent to the conquest (which may bequest the booty as it sees fit). e.g. John v. M'Intosh.. "Two people have bought the same piece of land. P got land from Indians; D got land from [the U.S.] government. D won in Supreme Court because discovery or conquest gave title to those who made it. Government had right to acquire land from Indians by purchase or conquest, but no one else could, and Indians' prior possession largely irrelevant."
...
"1. Acquisition by conquest
1. McIntosh Case: decision based on international rule of discovery; all property rights trace back to a sovereign; Indian sovereignty not recognized so land goes to McIntosh since he acquired it from a line of sovereigns."
...
I thought perhaps it had to do with the nature of the conflict between Sauran and Isildur having some legitimacy. But say for example, person A assaults person B without good cause. Person B then vanquishes person A in self defense. Person B then takes (comes into possession) of person A's wallet. I don't think person A's claim to possession of the wallet stands up to person B's claim after person B recuperates from the fight, even though person B was the one responsible for the fight.
...
So I really think it has to do with Isildur being a sovereign, who may thus lay claim to a conquest. After all, there is no superior legal power to a sovereign that exists in the international arena, particularly in the time the stories are drafted. In the international era, where multiple competing legal structures lay claim to the same item, it's pretty much "might makes right." At least in so far as jurisdiction within a given legal system itself is concerned, conquered items belong to the sovereign.
>
> Cute, but absent a state to enforce all this 'law' it
> comes down to bash-bash-bash. Everything else is just
> whining to God.
>
Yes, the state must enforce property rights. Paradoxically, it is the uniform application of such rules by the state and its legal system which results in the vast majority of such cases being resolved without the state ever becoming involved... Otherwise, total chaos.
link 1
link 2
3.31.2008 1:49am
Julian Droms:
>
> Acquisition V may actually another example of
> Acquisition by Find. While he told his friends he
> won it in the riddle game, Bilbo later admitted
> that he had found it before meeting Gollum (the
> riddle game was to determine whether Gollum would
> eat him or show him the way out). Of course which
> version is correct depends on the legal status of
> a retcon.
>
From wikipedia...

In the first edition of The Hobbit, Gollum willingly bets his magic ring on the outcome of the riddle-game, and he and Bilbo part amicably.[19] In order to reflect the new concept of the ring and its powerful hold on Gollum Tolkien decided a rewrite of the Gollum encounter in The Hobbit was in order, and he sent a revised version to his publishers. He heard nothing further for years. When he was sent galley proofs of a new edition he learned to his surprise the new chapter had been incorporated as the result of a misunderstanding.[18] In The Lord of the Rings the original version of the riddle-game is explained as a "lie" made up by Bilbo, and that the revised versions of The Hobbit contain the "true" version of events.[20] This became the second edition, published in 1951 in both the UK and America.[11]
3.31.2008 2:17am
BruceM (mail) (www):
Clearly the Ring is unlawful contraband and nobody has a right to possess it in Middle Earth. However, necessity provides an excuse for possessing it in order to carry it to Mount Doom for its destruction.
3.31.2008 4:03am
Dr Ken:
Re: Bama 1l:
"Tolkien repeatedly denied making any contemporary political statements in his fiction."

Quite right, but there are many signs that a non-contemporary political situation influenced his writing a great deal. I strongly recommend "Tolkien and the Great War: The Threshold of Middle-Earth", by John Garth, for an illuminating discussion of Tolkien's role in World War One. His close friends had a role in it, too, unfortunately for them.

Not too much on property law in it, but all you lawyers might like it anyway.
3.31.2008 8:56am
anonthu:
You know, its this kind of lame line that puts professors into disrepute. No, even with your exposition, LOTR is not "about" property acquisition. Its about a war between a bunch of monsters v. nice creatures. Sheesh.

I would imagine that Ilya was(is) writing firmly tongue-in-cheek in the handout. Sheesh indeed.
3.31.2008 12:26pm
DiverDan (mail):

Actually there's an interesting problem of the One Ring under the Rule Against Perpetuities. A mortal who possesses the Ring does not die.


There is no Rule Against Perpetuties problem here for two reasons: First, there is no issue concerning an unvested contingent interest; the Rule Against Perpetuties only prohibits the creation of contingent interests which may not vest or lapse with a life in being plus 21 years. Rule of thumb - no contingent interest, no RAP problem. Second, as noted in the statement above, as long as the Ring exists, there will always be a "life in being", i.e., the posssessor of the Ring, since it renders the bearer immortal.
3.31.2008 2:17pm
zippypinhead:
DiverDan wrote:
There is no Rule Against Perpetuties problem here . . . the Rule Against Perpetuties only prohibits the creation of contingent interests which may not vest or lapse with a life in being plus 21 years.
Actually, there's probably no RAP problem for another reason: It would be logical for the measuring life in being to be Sauron's, as the One Ring's creator and grantor of any contingent interest. Admittedly, there is no writing declaring his to be the measuring life (raising Statute of Frauds questions?), but a construing court would likely find Sauron's life to be appropriate for measuring any contingent interest. Unless Sauron's travels between the spirit and physical worlds caused him to not be a single "life in being" for RAP purposes. But that's a Tolkien-theology question well beyond my limited mortal powers of comprehension.
Second, as noted in the statement above, as long as the Ring exists, there will always be a "life in being", i.e., the posssessor of the Ring, since it renders the bearer immortal.
But the life in being is only "immortal" while possessing the One Ring. Otherwise Isildur would have continued to live after losing the Ring in the the River Anduin, and we wouldn't have gotten into all that messy Gondor steward fiduciary stuff, right? Under RAP one cannot measure the interest against successive lives in being.

All of which is bringing back traumatic repressed memories of my 1L property exam many years ago... excuse me while I run screaming from the room...
3.31.2008 3:04pm
David M. Nieporent (www):
But the life in being is only "immortal" while possessing the One Ring. Otherwise Isildur would have continued to live after losing the Ring in the the River Anduin, and we wouldn't have gotten into all that messy Gondor steward fiduciary stuff, right?
The possessor of the One Ring is only immortal in the sense of being immune from death by old age; Isildur was killed by orc arrows.
3.31.2008 3:33pm
markm (mail):

Nessuno:
And how, I wonder, might one characterize returning the One Ring to the Fires Whence it Came

Doesn't full ownership of a piece of property give one the right to do anything one wants with it, even destroying it? Of course, it could only be destroyed by trespassing on Sauron's real property...

Can one gain property by adverse possession without having come into possession by a crime? For real property, I believe that in the common law, you haven't committed the crime of trespassing until you've ignored a clear message to stay out or to leave - if you've openly occupied the land for a long time without being told to leave (or paying rent or otherwise acknowledging the owner's rights), you never trespassed and once you gain title, you aren't trespassing. Of course, if the owner hasn't warned you off because you murdered him, the land won't become yours. To extend adverse possession to personal property, the only non-criminal ways I can think of to come into possession of another's personal property is to be entrusted with it temporarily, or to find it. When do found objects become the property of the finder? I don't think it's immediate, although that may be a common-law rule that's been universally overridden by legislation. OTOH, if possession of a found object has been unchallenged for centuries, I think the current possessor should win over someone showing up and claiming to be the heir, say of Isildur who lost the thing centuries before it was found. But that would have been Deagol's claim; by murdering him, Smeagol/Gollum forfeits all rights forever. On the third hand, if Smeagol/Gollum became a sovereign (which the ring could have enabled, had he had the imagination and nerve), then could he claim it by right of conquest? (In other words, the difference between a bandit and a king is success.)
3.31.2008 4:07pm
JBL:

Wait - what about the inscription on the Ring itself?

The text is actually a bit ambiguous. It could be read to attribute the ownership of the ring specifically to the Dark Lord.

On the other hand, it could be read as stating that the Ring itself is soverign (One Ring to rule them all...), in which case the Ring's relationship to the various holders isn't really one of ownership at all, more like an alliance (or perhaps vassalage)...
3.31.2008 5:15pm
zippypinhead:
David M. Nieporent wrote:
The possessor of the One Ring is only immortal in the sense of being immune from death by old age; Isildur was killed by orc arrows.
Exactly true. But the Rule Against Perpetuities doesn't care how the measuring life in being is destroyed to start the 21-year clock ticking.

I still think the real RAP problem in Tolkien's world was the unvested contingent interest in the throne of Gondor by some unspecified heir of Isildur. Steward Denethor definitely needed a better general counsel, or attorney general, or whatever they call their in-house lawyers in Middle Earth...
3.31.2008 6:41pm
Dennis Nicholls (mail):

Doesn't full ownership of a piece of property give one the right to do anything one wants with it, even destroying it? Of course, it could only be destroyed by trespassing on Sauron's real property...


I would start off by arguing that due to the evil of the One Ring that Sauron created an Easement by Necessity for those bent on unmaking the Ring.
3.31.2008 9:39pm
nick:
Speaking of the Rule Against Perpetuities, the contingent property rights reversion to the Kingdom of Gondor that was ultimately exercised by Aragorn should have been readily voidable in a court of competent jurisdiction.

Nice try, but the Stewards are agents of the holders of the Throne of Gondor, not themselves holders of that political property. As evidenced by the fact that they are called "stewards", don't sit on the king's throne, and don't wear the king's crown. Political authority was only delegated, revocably, by Aragorn's ancestor to the Stewards. The Throne itself was not granted as property, contingent or otherwise. The disappearance for an extended period of the master does not give the servant title to the master's properties. The Throne instead descends down the line of the king's heirs, to Aragorn. The Stewards do seem to have a heritable property right in their temporarily delegated authority, but that right is exhausted as soon as Aragorn, holder of the Throne, revokes it.

Given Tolkien's extensive study of ancient Anglo-Saxon languages and history, he could hardly have avoided coming across some ancient Anglo-Saxon law. It would have been consistent with his extensive use of the language to use some of the law also. Indeed, possession of political power is such an important theme in LotR that the legalities as well as the ethics of same could hardly be avoided. Anglo-Saxon as well as Anglo-Norman power was, legally, a matter of holding political property rights, so property law, but from that era not ours, is central to the story. We might expect his accounts of the personal property rights to the Ring, the political property rights to kingdoms, and so on to be based on this ancient law, although to what extent it is faithful to that law may be another matter (his use of ancient language was rather creative).
3.31.2008 10:26pm
nick:
Julian Droms: I think it relates to the fact the Isildur is a sovereign. Acquisition by conquest must be on behalf of a sovereign (e.g. state, monarch) in which case ownership transfers to the sovereign subsequent to the conquest (which may bequest the booty as it sees fit). e.g. John v. M'Intosh..

Long ago the matter was also in dispute. In the 13th century the King of England claimed that one John of Warenne, whose ancestors had fought for William the Conqueror, had usurped some of his jurisdiction without warrant (title). Said John reportedly "held up in court his old rusty sword and said, 'Here my lords, is my warrant! My ancestors came with William the Bastard and conquered the lands with the sword, and I shall defend them with the sword against anyone who tries to usurp them. The king did not conquer and subject the land by himself, but our forefathers were partners and co-workers with him.'"

Judgment was for the king: John's ancestor was a servant, not a partner, of William, so only William himself held original title by right of conquest. See here for citations and more on political property rights in old England.

(Most Norman barons successfully got around this ruling, though, by claiming prescriptive rights, i.e. rights gained through long usage, the ancient version of adverse possession).

Restricting right of conquest to a "sovereign" is a modern reading of this precedent. The real issue, when monarchs and barons actually wielded power in England, was that the ancestors of the Norman barons who fought for William were deemed to be William's servants, not masters, and thus were entitled to property gained by conquest only insofar as the master granted it to them or by prescription from the master's neglect.

This suggests a better argument for the Stewards of Gondor: they gained the Throne of Gondor by prescription, from long exercise of, effectively, all the authority of the Throne. But since they didn't sit on the king's throne, and wear the king's crown, and claim the title of King, their possession of the Throne itself, as opposed to their mere delegated authority as Stewards, was not "open and notorious", and thus failed to gain them title to the Throne by prescription.
3.31.2008 11:17pm
Rich Rostrom (mail):
What about all the property law issues in The Hobbit?

To wit:

Ownership of the hoard of Smaug - which dispute nearly ends in bloodshed. Most of the hoard was the treasure of the dwarves, but some, supposedly, was taken from the Men of Dale.

Ownership of the Arkenstone - claimed by Bilbo as his share of the treasure.

Ownership of Bag End and Bilbo's furniture - declared abandoned at his presumed death, then sold, and finally recovered. Tolkien stated explicitly that

The legal bother, indeed, lasted for years.


So it would appear that hobbits had a full-blown legal system. What sort of actions would Bilbo need to take?

Fortunately, Bilbo came back with a lot of money - chests of gold and silver from the hoard of Smaug, and more gold from the troll-hoard, so he could afford to buy back his possessions.

Note: when Bilbo got home, his goods were being sold at auction that very day. Who was to receive the proceeds?

Also, getting back to LotR: when Bilbo left the Shire after his eleventy-first birthday, he bequeathed his estate to Frodo in his will, which

was very clear and correct (according to the legal customs of hobbits, which demand among other things the signatures of seven witnesses in red ink).
4.1.2008 1:34am
Zsuzsa:
It seems to me that Aragorn's claim to the throne of Gondor is pretty thin. True, the Stewards were not the rightful kings. Despite the throne having been abandoned for several hundred years, the Stewards never attempted to make a claim on it. Denethor's comments to Boromir and Faramir suggest that the claim wouldn't have been accepted even if they had tried. Gondorian law, it seems, does not allow for abandoned property to be claimed even after such a length of time.

However, I don't see any good argument that says Aragorn get's to claim the throne either. It wasn't Aragorn's ancestor who abandoned the throne. Aragorn was the heir of Isildur; Isildur's brother Anarion was the first king of Gondor. Aragorn would have been something like the seventeenth cousin, twenty-five times removed, of the last king. Making a claim on that kind of relationship seems iffy, to say the least.
4.1.2008 2:12pm
HenryH:

VII. Temporary Acquisition by Necessity.

While Frodo lies unconscious, his servant Sam Gamgee temporarily takes possession of the Ring in order to save both of their lives from imminent danger.


It's been a while since I read LOTR so my memory may be faulty. I thought Sam took the ring because he thought Frodo was dead. So, this should be some sort of inheritance, rather than acquisition by necessity. It turns out he was wrong about Frodo's death and he gave the ring back as soon as possible after he found out.
4.1.2008 3:03pm
zippypinhead:
Rich Rostrom wrote:
Ownership of Bag End and Bilbo's furniture - declared abandoned at his presumed death, then sold, and finally recovered. Tolkien stated explicitly that "The legal bother, indeed, lasted for years." So it would appear that hobbits had a full-blown legal system.
Ah, I can see a new career path for a few of us who are bored with our current gigs -- Hobbit law! Bilbo as Replevisor absolutely required competent counsel!

...although I have a bad feeling that this career switch might also require me to actually learn how to properly pronounce "enfeoffment"
4.1.2008 4:16pm
Bill Woods (mail):
Rich Rostrom: Note: when Bilbo got home, his goods were being sold at auction that very day. Who was to receive the proceeds?

Presumably his heirs, the Sackville-Baggins, who wanted the house, but maybe thought that they already had better furniture.
4.1.2008 4:30pm