COMPARATIVE LAW
Spring 2003
Class 2
The Chthonic Legal Tradition
“CHTHONIC”
• What does “chthonic” mean”?
MEANING OF CHTHONIC
• chthonic (THONEik), 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
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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
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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
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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; yetto-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