TOLKIEN, AQUINAS, AND THE LAW In January of 2009, I engaged in an email conversation with Dr.

Alison Milbank, who had written a book entitled, Chesterton and Tolkien as Theologians. The purpose of my email was to inquire if she had any inkling (pun intended) as to whether Tolkien had any connection to St. Thomas Aquinas. I had previously read, in an entry on Aquinas in the work J.R.R. Tolkien Encyclopedia - Scholarship and Critical Assessment," by Prof. Michael D.C. Drout that, Though the name of Thomas Aquinas never appears in any of Tolkien's published writings or letters, it would be impossible for a Roman Catholic of his generation not to have been influenced by Thomism." While I suspected this was true, I hoped Dr. Milbank had run across something more substantial. Surely enough, she indicated that St. Philips bookstore in Oxford had for sale a copy of the Summa that had belonged to Prof. Tolkien, and containing AngloSaxon booklists, as well as handwritten notations by him. Dr. Milbank was able to review that copy in preparation for her book, but did not purchase it due to the high asking price. With that said, the natural question is why I thought it was important to find out that Tolkien was familiar with the Summa. The first response is that my own love of useless information drives me to discover such things. This fact is now lodged away quietly in my heat, awaiting deployment at some time in the future where such esoteric knowledge may further conversation, or in a pre-confessional moment, exercise my ego. More importantly than my curiosity, while it may be too much to claim that Tolkien sat and wrote Lord of the Rings, or the Rings, for short, with a copy of the Summa in his hand, I believe that certain parts of the Summa may be helpful in illuminating Tolkiens explorations in law and judgment. Finally, although explorations of hobbits and dwarves (and perhaps even orcs as a foil) could be useful, the brevity which is required in this forum requires that the societies of men and Elves, about which Tolkien provides the most information in the Rings, remain the primary focus. I. Aquinass Treatise on Law

Before delving into examples from the Rings, I would like to turn first to St. Thomas Aquinas Summa Theologica, or the Summa, for short. Specifically, I am interested in certain portions of the treatises on law and judgment. St. Thomas Treatise on Law, found in II, I, QQ 90 108, is a careful treatment of all forms of law human, natural, the Old Law, the New Law, and so forth. According to St. Thomas, law is said to be a rule and measure of acts, whereby man is induced to act or is restrained from acting, which is enacted for the common good, namely the happiness of man.1 Laws are made by the entire people, or a public individual who has care of those people, since only the entire people can order something to the common good. St. Thomas holds that a law may be unjust in two ways first by being contrary to human good, such as when imposed for a rulers own purposes or when made by someone who does not have the power to make it2 in both cases, it becomes a perversion of law, and is no longer binding in conscience. And secondly, when a law is contrary to the Divine good, such as laws commanding idolatry.

1 2

II, I, Q. 90 II,I, Q. 96, Art. 4

Electronic copy available at: http://ssrn.com/abstract=2147474

Laws do not bind in these cases, nor do they bind outside of the realm of authority, or when superseded by a higher law.3 With that said, it is most important to keep in mind St. Thomas precept that law is enacted for the general good. He argues that because the law is general, in specific situations, it may be hurtful.4 Therefore, though the lawgiver must shape the law according to what happens most frequently, if observance of the law would do harm to the common good, the law should not be observed. In such a case, the ruler would dispense of observation of the law for a specific situation affecting the entire commonwealth. If the situation is dire, and there is no time for referral to the ruler, then any citizen may dispense with observation of the law, since necessity knows no law.5 In addition, this dispensation must always be with a view towards the common good. The final considerations are from St. Thomas Treatise on Justice. There, he argues and reiterates that the lawgiver is permitted to judge according to equity, which allows for exemption from the written law when enforcement would result in harsh or burdensome measures.6 Furthermore, if a judgment is contrary to the will to render each his due, then it is unjust or perverted; if it exceeds the authority of the individual making the judgment, it is usurped.7 II. Society and Lawgivers

As a preliminary matter, a brief discussion of the makeup of the societies of men and Elves is useful to provide a general framework within which to situate my late comments. My discussion herein focuses on Gondor and Rohan, the two major settlements of men in the Third Age of Middle Earth, and upon Lothlorien. Although there are other settlements (such as Bree and Rivendell), and wandering parties of men (such as the Rangers), either there are no formal leaders as such, or Tolkien does not provide enough information in the Rings to really make a determination of legal structure. Gondor is the region in the southeast of mapped Middle Earth, west of Mordor, a vast region comprised of fiefdoms acknowledging as their head the King or Steward of Gondor, residing at this time in the City of Minas Tirith. During the majority of the time encompassed by the Rings, this ruler is the Steward Denethor, a man of high lineage, though not of the kings line, who rules in the kings stead with all the powers of the king save the name. Denethor is the 26th steward to rule since the last king had departed many years before to battle and never returned. To the north-northwest of Gondor lies Rohan, a region inhabited by the Rohirrim, the so-called horse lords, who, in reward for having assisted Gondor many years before, were granted the region as their home. In the Rings, Rohan is governed by King Theoden. Both governments are best described as absolute feudal monarchies, with power and rule making exercised by the king or steward, and in their absence, by whichever agent of the ruler is present
3 4

II,I, Q. 96, Art. 5 II,I, Q. 96, Art. 6 5 He who in a case of necessity acts beside the letter of the law, does not judge the law; but of a particular case in which he sees that the letter of the law is not to be observed. II,I, Q. 96, Art. 6 6 II,II, Q. 60, Art. 5 7 II,II, Q. 60, Art. 5

Electronic copy available at: http://ssrn.com/abstract=2147474

and able to do so. Judgment in legal matters is therefore the prerogative of the king, though rule in lesser matters may be delegated to rulers of fiefs or provinces when the king has not spoken. There are three major settlements of Elves in Middle Earth during the time period set forth in the Rings Rivendell, Mirkwood, and Lothlorien. Similarly to the Rangers, there are wandering houses of Elves who are led by lords, but who possess no realm. Like the settlements of men, the Elves are organized in each settlement under rulers, such as Elrond in Rivendell and Galadriel and Celeborn in Lothlorien.8 The law seems to be set forth in all cases monarchically from the top down, similarly to the structure of men. III. Law in Action

As for Elves, the one example I drew from the Rings concerns entry of the Fellowship of the Ring into Lothlorien. After the walkers have been brought to a point, they will be blindfolded, to which Gimli takes exception and claims his honesty and faithfulness. In reply to Gimlis protest, Haldir replies I do not doubt you[y]et this is our law. I am not the master of the law, and cannot set it aside and adds that [n]ow that you have come this far, you must be brought before the Lord and the Lady. They shall judge you, to hold you or give you leave, as they will. Haldir reports that if any of the Fellowship attempt to turn back, they will be killed by the sentinels. Later, a messenger from Galadriel and Celeborn allows the removal of the blindfolds. Clearly they are the masters of the law. While the potential here is to make some distinction in absolutism between men and Elves, I think rather the difference is in the station of the one confronted with the question, and perhaps the exigencies of the situation. Haldir is not, apparently, of a lordly line, nor is he empowered as such to judge the law itself. This situation echoes Aquinass discussion on judgment of the law here, the situation, although dire for Middle Earth, admits of time to refer the matter to the ruler. At points during the war of the Ring, Faramir and his guerrilla band hide in Minas Anor, a ruined city close to Mordor. The Hobbits, passing nearby, are captured by Faramir and his band and taken to their hidden refuge. Faramir hears the story of the Hobbits, is aware they seek to destroy the Ring, but is also called by the law to return them to Minas Tirith for judgment in front of Denethor. If making the wrong judgment, he notes that his life will justly be forfeit. Nonetheless, after knowing more, he declares them free in Gondor, though he is not clear for his reasons in so doing. He begs them to present themselves to the steward if they return safely out of Mordor, in order that the steward may confirm his decision and make it lifelong. When sending Frodo, Sam, and Gollum on their way, his last words are a blessing: Go with the good will of all good men! In Rohan, Eomer, the leader of an eored (and relative of Theoden), encounters Aragorn, Gimli, and Legolas on their hunt for the orcs that captured Merry and Pippin. Before knowing of their mission, Eomer states that the king has commanded that it is against the law to let strangers wander at will in the land, until the king himself shall give them leave, and more strict is the command in these days of peril. Similarly to Faramir, Eomer is required by his law either to present Aragorn, Gimli, and Legolas before King Theoden or to slay them if they refuse. Aragorn argues that he does not believe that the law was made for such a chance and that
8

Interestingly, the only major settlement of elves or men ruled by married co-regents in the entire book.

Never in former days would any high lord of this land have constrained a man to abandon such a quest as mine. Eomer finally allows them to proceed, and lends them horses, begging them to present themselves to Theoden at the conclusion of their quest, saying, There you shall prove to him that I have not misjudged. In this I place myself, and maybe my very life, in your good faith. Do not fail. The echoes of the Thomistic discussion on law and judgment may be seen here, clearly, first in Aragorns appeal to the difficult case, where imposing the law would result in injustice and then in an appeal to custom, where no lord would have denied Aragorn the ability to continue his quest. In both cases, the judge notes that the judges own life or living is forfeit should his judgment be proven wrong. In all of the human instances, the judgment results in greater good occurring. It is difficult not to believe that Tolkien is attempting to illustrate the results of careful judgment by the sovereign or his agents in a literary fashion, even if, in our own world, such judgment may not be recognized, or may indeed result in harm to the judge. There are many more examples of Tolkiens use of ideas drawn from or similar to those discussed by St. Thomas Aquinas in the Summa. I find that the more I read the Rings with these Treatises in mind, and indeed, with parts of the Summas discussion on the nature of the good, the more I see how Tolkien has integrated a very beautiful illustration of Catholic moral thought throughout Lord of the Rings, and bringing illumination to his own statement that the work is a Catholic one, unconsciously in the writing, and consciously so in the editing.