14. ONE RECHT

Pages279-303
Published date30 December 2004
Date30 December 2004
DOIhttps://doi.org/10.1016/S1059-4337(04)34014-7
AuthorWilliam MacNeil
14. ONE RECHT TO RULE THEM ALL!
LAW’S EMPIRE IN THE AGE OF
EMPIRE
William MacNeil
1. FORGING LEGAL FICTION AND FACTION: THE
WEREGILD OF INTERTEXTUAL JURISPRUDENCE
This article1is offered up in the spirit of what the High Kings of Gondor might
call a weregild.2Thatis, I hope, in this article, to clear a debt: a debt, long overdue,
much like that owed by the Armies of the Dead to Isildur’s heir, Aragorn son of
Arathorn. I reference The Lord of the Rings: The Return of the King (Tolkien,1994)
because this article is, in the main, about Tolkien and his oeuvreas an astonishing
instance of what might be called lex populi. But this article attempts more than just
another cultural legal reading of a popular literary and cinematic phenomenon.3
What, in fact, it proposes is nothing less than a practical demonstration of what it
means to read jurisprudentially. In so doing, I hope to repay some of the theoretical
debt that jurisprudence (and law-and-literature) has incurred, and owes so clearly
to literary criticism, cultural studies and Continental philosophy. For far too long
jurisprudence has been content to absorb the lessons of these other disciplines’
versionsoftextualtheory of the play of the sign, thedisseminationof meaning, the
deconstruction of logos – without propounding its own topoi let alone interpretive
paradigms. Such topoi, of course, jurisprudence has in abundance: in notions of
a “higher justice”; in concepts of law’s connection with morality; and, especially,
the law’s role in inaugurating “the social.
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 279–303
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34014-7
279
280 WILLIAM MACNEIL
It is this last topos that concerns me most here; indeed, this article will read
Tolkien’s The Lord of the Rings as a text of state construction, a blueprint of
sovereignty (see Section 5). That interpretation arises not only by reading the
text intratextually (i.e. collating accounts in the appendices, and cross-referencing
them with those in the text proper), but also by reading intertextually. That is,
by approaching The Lord of the Rings as in dialogue with another text of the
millennial moment: namely Hardt and Negri’s Empire (2000). Both these texts I
argue (in Sections 3 and 4) are engaged in a debate over the nature, role and status
of legitimacy, of legality. Thus, they function as mediations of the law, which,
in turn mediate each other. In so doing, they produce a reading – of Recht,of
rights (see Section 4) – that might properly be called “jurisprudential.” This, I
would argue (in Section 2), is the strength of mediating the law through fiction
(The Lord of the Rings) as much as faction (Empire). That is because it produces
not just mutually illuminating readings, but an alternative intertext. That intertext
synthesizes, sublates and goes beyond Tolkien and our two theorists, Hardt and
Negri, and enables us, in turn, to look at “the legal” and “the literary” otherwise
– as a site of discursive difference rather than binary stasis, of theoretical inquiry
rather than socio-legal representation. In short, what the forging of legal fiction and
faction produces is nothing less than the weregild of intertextual jurisprudence.
2. DARK LORD OR LAW LORD? THE RING
AS RECHT IN THE LORD OF THE RINGS
AllegoryisnothingnewinTolkienstudies despite Tolkien’sown strictures against
it.4Indeed, the temptation to allegorise Tolkien’s masterpiece, The Lord of the
Rings, seems to be almost as impossible to resist as the Ring itself.5For each
successive generation of the text’s readership has produced its own allegorical
version6of the fellowship and its quest, emphasising, alternatively, either the
beginning or the end of the trilogy.Readers in the countercultural 1960s and 1970s,
for example, focussed on the beginning of the trilogy and the idyllic scenes set in
the Shire, which stood in for and represented the commune, with the halflings’
leaf – “Old Toby,” so favoured by Gandalf (and Saruman!) – a code for that
period’s mind-expanding drugs (Walmsley, 1983, pp. 73–86).7While the previous
generation, the original readership of the 1950s, looked to the end of trilogy and
its dramatic battle scenes, which they couldn’t help but read in light of their own
wartime experiences, equating the Nazgul with the Nazis, Sauron with Hitler,
Saruman with Stalin, etc. ...
8
I want to suggest yet another allegorical reading of Tolkien, one which stakes
a claim for the law. I will argue that The Lord of the Rings – both the classic

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