Law of the West (Arnor-Gondor)
The Law of the West is the corpus juris of the Reunited Kingdom of Arnor and Gondor. It derives from the Laws of Númenor, which comprise a sacred corpus of religious law which the Faithful inherited from their forefathers, and which forms the basis of all legal traditions adhered to within the Realms-in-Exile and, therefore, within the Reunited Kingdom. They form the constitution ordained by the Valar and include all the just and fair royal decrees whose memory survived the events recorded in the Akallabêth.
In a broader sense, the Law of the West is the legal system of Dûndor, including the legal developments spanning over three thousand years of jurisprudence, from the Edicts of Elros, to the New Laws ordered by High King Eldarion. The Laws of Númenor form the basic framework for the legal system of the Reunited Kingdom law, although it is heavily overlaid by feudal, and local practices, as well as doctrinal strains such as natural law.
The Laws of Númenor served as a basis for legal practice throughout Arnor and Gondor. Taken together, the Laws of Númenor serve as the norm and standard against which all other sources of law must be measured and evaluated. It has all the ordinary elements of a mature legal system: laws, courts, lawyers, judges, a fully articulated legal code, principles of legal interpretation, and coercive penalties.
The jurisprudence of Western law is the complex of legal principles and traditions within which the law operates, while the philosophy, theology, and fundamental theory of Western law are the areas of philosophical, theological, and legal scholarship dedicated to providing a theoretical basis for Western law.
Origins
The original laws were given to the Three Houses of Men by Eönwë, the herald of Manwë. These laws are thought to be the rationalisation and humanisation of the divine order. The Valar are held responsible for establishing and perpetuating the law.
The laws were inscribed upon seven bronze tablets and preserved in Armenelos. They stipulated sacred order - the worship of Ilúvatar, obedience to the Powers, respect for oaths, and observance of ritual prohibitions. The King's primary duty was to see to it that the Dúnedain adhered to their place in this order. As for the ordering of the Númenórean society itself, the Law of Seven Tablets covered little. The Three Houses could decide (in concert with their king) their own internal affairs in the Gathering of Houses. After Númenor became a settled and urban society, the laws of Edain (Namnar Atanion) were collected and codified as non-religious law.
The Downfall wiped out the vast majority of written records in Númenor. So, Elendil commanded that his sons undertake to compile an exhaustive codex of Númenórean law. This compilation sprang from its extant surviving fragments, which would serve as the foundation for all future law-making and jurisprudence in Gondor and Arnor. The task of compiling and ordering the Laws of Númenor took sixty years and was carried out in the Halls of the Faithful in Pelargir. The resulting codex became the sacred corpus of law in Arnor and Gondor.
Once codified, the Laws of Númenor remained a fixed corpus, intended to serve as canon for the development of future laws, but never to be expanded or changed because no law created under the authority of the exile could ever equal or surpass the authority of the original. Nevertheless, a great deal of new law did come into use in Arnor and in Gondor over the three millennia following the Downfall, in areas otherwise unexplored by the ancient law makers, for ancient traditions were seldom overturned and then only at great need.
Alongside the laws elaborated during the Third Age, a whole set of juridical norms evolved by sedimentation of rulings and of edicts issued by lords of fiefdoms, governors and other magistrates. Such people were not legislators and did not technically create new law when they issued their edicts. Other magistrates, and successors of those who issued edicts, were not bound by the edicts of predecessors. However, rules taken from predecessors' edicts often proved suitable and useful. did take rules from edicts of his predecessor that had proved to be useful. In this way, rules progressively became entrenched in tradition. This happened mostly in Gondor. Thus, over the course of the centuries, the Laws were at least partially integrated by the body of rulings concerning these laws.
Source of law
The source or fountain of law may be taken as the formal cause of the existence of a law, or as the material channel through which laws are handed down and made known
Issuing authorities
Positive laws, based directly or indirectly upon immutable natural law, derive formal authority, in the case of universal laws, from promulgation by the supreme legislator — the High King, who possesses the totality of legislative, executive, and judicial power in his person, or, for laws promulgated in Gondor during the Third Age, by the King of Gondor. The Ruling Steward issued acts with the force of laws - subject to the King's approval. Particular laws derive formal authority from promulgation by a legislator inferior to the supreme legislator, whether an ordinary or a delegated legislator. The Authorities who may issue law are, as listed by Mormalhan of Erech in T.A. 915 for King Eärnil I:
- Eru Ilúvatar, who is the single omniscient and omnipotent creator and Lord, is the original source of laws.
- The King of Númenor and, after the demise of Númenor, the High King of the Realms-in-Exile, either alone or in unison with a general council, as endowed with the supreme and ordinary power of enacting laws.
- The King of Gondor for Gondor, either alone or in unison with a general council, as endowed with the supreme and ordinary power of enacting laws.
- The Lords for their respective particular domains, unless competency is reserved to another authority.
In Fo.A. 5, Steward Faramir revised Mormalhan's hierarchy:
- Eru Ilúvatar, who is the single omniscient and omnipotent creator and Lord, is the original source of laws.
- The King of Númenor and, after the demise of Númenor, the High King of the Realms-in-Exile, either alone or in unison with a general council, as endowed with the supreme and ordinary power of enacting laws.
- The High King of the Reunited Kingdom, either alone or in unison with a general council, as endowed with the supreme and ordinary power of enacting laws.
- The King of Gondor during the Third Age, the King of Arnor and the King of Gondor in the Reunited Kingdom, for their respective particular realms, either alone or in unison with a general council, as endowed with the supreme and ordinary power of enacting laws.
- The Lords for their respective particular domains, unless competency is reserved to another authority.
In Fo.A. 11, in order to deal with the reclamation of the North, Faramir added the King of Arnor during the Third Age. Tradition, too, is a source of law, universal as well as particular. The natural law as such cannot be called a homogeneous source of Law except it has been declared such by the highest authority.
Sources of knowing
The sources of knowing are depositaries in which the laws enacted in the course of centurie may be found collected. They do not constitute the law as such. Among these sources are the traditions and the Lais and the decrees of Kings.
Tradition
Tradition in Western law is the repeated and constant performance of certain acts for a defined period of time, which, with the approval of the competent legislator, thereby acquire the force of law but it is not a law in proper sense.
Tradition may be considered as a fact and as a law. As a fact, it is simply the frequent and free repetition of acts concerning the same thing; as an act with the force of law, it is the result and consequence of that fact. In order for Tradition to become a source of law, it must be approved by the competent legislator and not simply tolerated.
Decrees
A decree is, in a general sense, an order made by a superior authority for the direction of others. A Decree must not violate the established law but, with the fullness of powers of the High King, it may suspend or not applicate the law. Generally, decrees determine the implementation of a legislative act and are dependent upon such for their efficacy. Ordinances are particular decisions, issued in order to fulfil universal law on a local or regional level. Decrees include:
- Royal Decrees: they may issue general provisions but they cannot novate a law. They also may dispense or exempt from following a law.
- Decrees of the Wise;
- Decrees of provincial governors: they are binding for the boundary where they are issued;
- Decrees of the Lords, of the cities, and of other particular powers pertaining the royal laws.
The decrees of governors and of particular powers deal with the administration and good order of the specific jurisdiction. The decrees of a particular power or council or of provincial governors may not be promulgated until they have received the approval of the High King. The High King may approve the decrees, and they thereby have force in the province. The High King may also "adopt" the decree, which is given the same force as if it emanated from the Hgh King, though they are binding only in the relevant jurisdiction.
Law
A Law is the highest level of normative act issued by the High King. By their nature, laws properly termed as such are promulgated by the Sovereign but have to obtain consent from the lords and captains assembled.
Principle of subsidiarity
A universal law in no way derogates from particular or special law, unless the law expressly provides otherwise. The High King can modify the statutes of communities or associations, or even suppress them, if he deems it prudently appropriate: these communities emanate from him because he or his predecessors erected them when they deemed it appropriate. The High King does not create the different forms of communities (territorial, orders or congregations). Instead, the High King verifies, improves and perfects them.
The High King (and the Lords and Governors) performs a perfecting role towards the communities subject to them through the supervision of customs. They do not create the community nor do they replace the "just autonomy", which on the contrary protects. If there are deviations or abuses, he can appoint a Legate, who, however, must always govern according to the law of the community. The Authority may also, in very serious cases, suppress the Institute or the community, but it cannot change its essential patrimony and its purpose.
Particular law and limits of the power of the High King
A universal law in no way derogates from particular or special law, unless the law expressly provides otherwise.
The High King's power is always limited by local law. Therefore, however absolute the authority which the High King enjoys over all subjects, he cannot ordain anything that is above the local law or contrary to justice.
In this respect, he has only the authority that belongs to the local community or congregation leaders themselves. The command of the chiefs is truly legitimate, obligatory, only if it complies with the law. The Superiors are the interpreters of the rule, but they must not exceed, in what they require, the limits imposed by the nature and by the constitutions of the community or of the Order or of the Congregation.
Promulgation
Promulgation is the act by which the legislator manifests to those subject to his jurisdiction the decision that he has made and makes known to them his intention to bind them to the observance of his law Without having been promulgated, the law in question has no legal effect, because promulgation is of the essence of a law.
Once promulgation takes place, a law takes immediate effect, subject to the vacancy imposed by universal law, or by the particular legislator issuing a law. For the purposes of jurisprudence, promulgation is equivalent to publication, although the two must not be confounded.
Principles of legal interpretation
Over the centuries, legal scholars have formulated interpretive rules for the proper interpretation of laws. An authentic interpretation is an official interpretation of a statute issued by the statute's legislator. An authentic interpretation has the same force of the law which is interpreted.
Authentic interpretation
An authentic interpretation is an official interpretation of a statute issued by the statute's legislator. An authentic interpretation has the same force of the law which is interpreted.
Besides the High King, there are several other legislative authorities with varying degrees of particular legislative power. Primary examples are monarchs of suzerain realms, provincial governors, lords, and particular councils. Any of these legislators can issue authentic interpretations of their own laws and their predecessor's laws. Subordinate legislators also can entrust the power to authentically interpret their own laws to the High King.
Doctrinal interpretation
When it is not possible for a law to be authentically interpreted, recourse must be had to doctrinal, interpretation, for which rules of law have been formulated. The words of a law must be understood according to their usual signification, unless it is certain that the legislator intended them to be taken in another sense, or the rules of law dictate another interpretation. In all interpretations, however, the meaning of the words is to be preferred which favours equity rather than strict justice. The provisions of a previous statute are not presumed to be changed beyond the express meaning of the words of a new law. No words of a law are ever presumed to be superfluous.
During the Third Age, the doctrinal interpretation could be given by the Kings, by the scholars and learned men steeped in traditions delegated by the Kings, and by the Wise (usually Saruman). However, in T.A. 2012, Eäadacar of Linhir argued that «the work of the interpreter must not be deprived of vital contact with reality». In the Fourth Age, only the High King and delegated lore masters may be called to give doctrinal interpretation. In general, law can only be interpreted and fully understood in the light of universal truths.
Ruling according to a higher law
The rule according to a higher law is an interpretation principle meaning that no law may be enforced unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. This concept serves as a practical legal criterion to qualify the instances when the laws, even though issued in conformity with the proper legal procedures and rules, still produces results which the general consensus finds as being grossly unjust.
The idea of a law of ultimate justice over and above the momentary law of the King was first introduced by Silmal of Pelargir in S.A. 3330, and it was utterly reinforced and enshrined in legal reasoning by post-Kin-strife jurists in late T.A. XV century. The "Higher law" is the divine or natural law as well as basic legal values.