COMPARATIVE LAW

Spring 2003

Class 2

The Chthonic Legal Tradition

“CHTHONIC”

• What does “chthonic” mean”?

MEANING OF CHTHONIC

• chthonic (THONE-ik), adjective:dwelling in or under the earth; also, pertaining to the underworld

• Chthonic comes from (khthón), the Greek word for earth.

TODAY’S CLASS

• The Chthonic Legal Tradition, viewed broadly• I will first introduce H. Patrick Glenn, the author

of your book, Legal Traditions of the World• We will then consider the nature of a chthonic

legal tradition• We will then discuss some examples of chthonic

legal traditions that persist (at least in part) in the present day.

H. Patrick Glenn

• Teaches at McGill University in Montreal

• Teaches and has research interests in the areas of comparative law, private international law, and judicial law. His latest sabbatical year was spent in Mexico and during the year he also taught at the University of Fribourg in Switzerland.

More on Professor Glenn

• He is currently involved in international projects on reform of the Russian Civil Code and judicial education in China as Co-Director of the Institute of Comparative Law.

• He recently wrote a book entitled Legal Traditions of the World published by Oxford University Press. It was awarded the Grand Prize of the International Academy of Comparative Law.

Glenn’s Book: A Response to Globalization

• Many states have recently seen considerable change to their legal system, often as a result of imported law. It is not clear how effective these changes will be.

• This has sparked a renewed interest in comparative law.• Unlike many writers on comparative law, Glenn

purports to do more than just describe black-letter law.• Through an examination of seven major legal traditions,

Glenn sets out a broad theory of the relationship of tradition to society.

SOME REASONS TO STUDY COMPARATIVE LEGAL

TRADITIONS• Professional Purpose – help lawyers to work in a

global village • Cultural Purpose – broaden perspectives, give

comparative insights into our own legal system• Scientific Purpose – universal legal truths,

harmonization of legal rules• Reform Purpose – helps us to make changes to

our own legal system

Glenn Examines Seven Legal Traditions

• Chthonic (indigenous)

• Talmudic

• Islamic

• Hindu

• Asian

• Civil law

• Common law.

Glenn Addresses Four Major Issues for Each Tradition

Each section of the book on these seven traditions considers four issues:

• 1. the nature of each tradition• 2. its underlying justification• 3. its concept of change• 4. its relationship to other traditions.

Nature of the Chthonic Tradition

• What is the nature of the chthonic tradition?

Nature of the Chthonic Tradition• The oldest legal tradition• All humans are descended from chthonic peoples• Orality• Lack of complex legal institutions• Emerged gradually, rather than in response to a particular

event – so hard to escape• Diverse chthonic traditions• Chthonic law is interwoven with other chthonic beliefs -

not separate from morals or religion, though law had its own place in chthonic tradition

• Environmentally friendly because nature is divine

Compare the following to the U.S. System

• Chthonic Law of Obligations

• Chthonic Family Law

• Chthonic Law of Property

• Chthonic Criminal Law

Types of Chthonic Law

• Little chthonic law of obligations (contract, tort)• Chthonic family law is largely informal• Chthonic property law is founded on the principle of

living in harmony with the land and thus recognized collective ownership more than individual ownership or property; lacked a law of succession. No chthonic concept of human dominium over the natural world.

• Criminal law existed but was the responsibility of the community rather than the individual. Criminal sanctions were designed to heal a wound to the community, not punish an individual.

Underlying Justification for Chthonic Law

• What is the underlying justification for chthonic law?

Underlying Justification for Chthonic Law

• What is the underlying justification for chthonic law?

• Chthonic law is interwoven with other chthonic beliefs

• Law is not dominant but has its place• No individual rights – individual is submerged in

community• Chthonic law is founded on the concept of respect

for, harmony with, and the divinity of the natural world

The Concept of Change in a Chthonic Tradition

• What is the attitude of chthonic law to change?

The Concept of Change in a Chthonic Tradition

• What is the attitude of chthonic law to change? • Non-linear concept of time (no past or future)• Inter-generational equity (dead are not gone; yet-to-be

born are here)• Result is a conservationist tradition – we must act to

protect the natural world for those who will depend on it after we die

• Recycling the world• Flexibility with a fundamental core – the sacred

character of the world – which cannot change – if it does, the tradition is no longer chthonic

Relationship of The Chthonic Tradition to Other Traditions

• Describe this

Relationship of The Chthonic Tradition to Other Traditions

• Chthonic peoples lacked a self-conscious identity• Generally did not resist western expansion(?)• No pure chthonic traditions exist any longer, as a

result of increased information due to western and islamic expansion

• Chthonic traditions have had some impact on the environmental debate in the west, but the outcome is not clear. Also has influenced some western thinkers on criminal law and sentencing practices.

• Current issue: relation of chthonic peoples to states

Some Examples of the Chthonic Legal Tradition

• See Class Web page