Comparative Law (LAW 2508, 2022 semester 1)
Lecture 5-11 Notes
Lecture 5 – Chthonic Legal Tradition
Recap
Classification of the – legal family (based on different criteria)
Each is different from one and another (might not be perfect, tell you something)
Glenn – legal tradition of the world (does not talk about is culture, the post-modern lawyers think
about culture, good idea to talk about it in relation to the seminar presentation)
Three elements: Past, traditio,
Brain tub:
Different version of tradition within one group (religious belief, sometimes leading version)
The different tradition between national legal system (what it mean? The law is officially rcognised
in that state as law – national legal system. The Australia legal system. The tradition has boarder
scope verses the national legal tradition within the boarder, for example Islamic law, common law…
A lot of mixing, Thailand – eight types
Chthonic deities
Glenn’s special term, others do not talk about it
Chthonic legal tradition
◦ Chthonic (Greek) meaning dwelling on or beneath the surface of the earth
◦ Terms like ‘Aboriginal’, ‘native’, ‘indigenous’ can be problematic for this group (Glenn is
unhappy with this term, because they are product of colonial time – use in the way to hold
up distinction, they might come from some other places)
◦ Who are Chthonic people? This tradition is about people who live ecological lives in close
harmony with the earth
◦ Oral tradition plays a defining role (information is transmitted orally: story telling…)
Emergence of chthonic law
◦ No point of origin or defining moment
◦ Emerged based on human experience and oral transmission of information
◦ Oldest legal tradition (2 million years)
◦ Differences among chthonic peoples but some commonalities (can be some crossing
commanlities)
Sources of chthonic law
◦ Oral teachings and storytelling is the primary way information is communicated
Page 1 of 46
,Comparative Law (LAW 2508, 2022 semester 1)
Lecture 5-11 Notes
◦ Oral tradition preserves what is seen as important: “it does not want its people looking
things up” (think how it is different from ours, how can anyone in our legal system can
remember, and also parliament is also continually changing the laws)
◦ Rejects formality in law (no exclusive sources of law) and attempts to write it down (what
people remembered and share knowledge)
***we learn from storytelling from common law as well (think about this) Chthonic law in the
common law?
Relationship? (Taxnotation)
Environment…
Sources of chthonic law
◦ Lack of writing (some can be writing, not just live in people’s mind, Glenn does not talk
about it)
◦ No privileged position of scribe 没有划线员的特权位置 (no status, the law lives
with the community, everyone is in the community, no privileges)
◦ Law tends to a consensus view (law is imposed on people – Australian legal
tradition. Need to get people to negotiate)
◦ Chthonic law is widely known and deeply embedded as it “lives in the people”
◦ All humans originally followed chthonic law
◦ Exit from chthonic tradition through the development of written law (the exist path from
the written law, you do not get consensus anymore – because all are written) (what is the
motivation for the written law?)
Chthonic institutions
◦ Few formal institutions (community based model)
◦ Little corruption without positions of formal authority (no elites - no judges/lawyers, no
chance to have corruption)
◦ May be council of elders or chiefs (older seem to have better understanding, stronger link,
depends on age)
◦ Monarchs (or chiefs) may rule with curia regis (means a council – who exercise the power)
Chthonic dispute resolution
◦ No formal court or litigation process (will not get bankrupt)
◦ Resolution is informal and involves the community (involving resolving conflicts, community
involve, goal is to promote reconciliation and remain harmony, the health status)
◦ No issue of cost or screening of cases
◦ Careful determination of facts and circumstances to promote reconciliation
◦ No formal source of law or rules but rather shared information on how to best live a life
◦ Application of principles and wisdom to encourage resolution and restoration
Mapping chthonic law
◦ Law of obligations (torts, contract)
◦ Few rules, focus on personal relations (focus on maintaining harmony)
◦ Family law
◦ Informal and little regulation (children brought up in a larger family vs western
concept)
Page 2 of 46
,Comparative Law (LAW 2508, 2022 semester 1)
Lecture 5-11 Notes
◦ Property law
◦ Live in harmony with the land (you only live)
◦ Communal enjoyment of land
◦ No private property or accumulation of wealth
◦ Reconciling chthonic notions of property law with western legal traditions
◦ Chthonic law increasingly recognised and adjudicated in common law courts
◦ Mabo v Queensland (No 2) [1992] HCA 23 from 1992 with the High Court in this case
the High Court of Australia dispensed with the fiction of terran Elias in the European
discovery of Australia and it found that there is this native title is called native title in
the common law system which is sui generous it's unique it's not equivalent to
anything we know in the common law system based on living on the land teaching
on the land and often a communal aspect to it which is very different from our
private property exclusive property rights and the cord in that case found that this is
based on a traditional connexion Australia indigenous persons information to their
land and it can coexist with other forms of land ownership when year later
parliaments enacted the native title act to try and come up with a scheme
superhatch limit the effect of this recently articulated common law doctrine OK and
provides a process for adjudicating claims and also addresses some unresolved
questions at that time about how they coexist with other rights that are recognised
in the common law for example pastoral rights were very much concern at that time
◦ Native Title Act 1993 (Cth)
◦ R v Van der Peet [1996] 2 SCR 507
◦ Delgamuukw v BC [1997] 3 SCR 1010
◦ Criminal law
◦ Responsibility of the community (no prison, injury to one is injury to the entire
community)
◦ Negotiation among groups for reparation or punishment
◦ Little or no economic crime, offences mostly related to physical violence
◦ Restore damage (e.g., sentencing circle)
◦ E.g., s 22 Sentencing Act 2017 (SA) (for Aboriginal and Torres Strait Islander,
family can come in to present views…)
◦ 22—Sentencing of Aboriginal and Torres Strait Islander defendants
◦ (1) Before sentencing an Aboriginal or Torres Strait Islander defendant, the
court may, with the defendant's consent, and with the assistance of an
Aboriginal and Torres Strait Islander Justice Officer—
◦ (a) convene a sentencing conference; and
◦ (b) take into consideration views expressed at the conference.
◦ (2) Nothing in subsection (1) is to be taken to require the court to convene a
sentencing conference if the court, after taking into account all relevant
sentencing purposes, principles and factors, determines not to convene a
sentencing conference. (3) A sentencing conference must comprise— (a) the
defendant and, if the defendant is a child, the defendant's parent or guardian;
and (b) the defendant's legal representative (if any); and (c) the prosecutor;
and (d) if the victim chooses to be present at the conference—the victim and,
if the victim so desires, a person of the victim's choice to provide assistance
and support; and (e) if the victim is a child—the victim's parent or guardian.
Page 3 of 46
, Comparative Law (LAW 2508, 2022 semester 1)
Lecture 5-11 Notes
(4) A sentencing conference may also include (if the court thinks the person
may contribute usefully to the sentencing process) 1 or more of the following:
(a) a person regarded by the defendant, and accepted within the defendant's
Aboriginal or Torres Strait Islander community, as an Aboriginal or Torres
Strait Islander elder; (b) a person accepted by the defendant's Aboriginal or
Torres Strait Islander community as a person qualified to provide cultural
advice relevant to sentencing of the defendant; (c) a member of the defendant's
family; (d) a person who has provided support or counselling to the defendant;
(e) any other person. (5) A person will be taken to be an Aboriginal or Torres
Strait Islander person for the purposes of this section if— (a) the person is
descended from an Aboriginal or Torres Strait Islander; and 25.11.2021—
Sentencing Act 2017 Sentencing purposes, principles and factors—Part 2
General sentencing provisions—Division 2 Published under the Legislation
Revision and Publication Act 2002 19 (b) the person regards themself as an
Aboriginal or Torres Strait Islander or, if the person is a young child, at least 1
of the parents regards the child as an Aboriginal or Torres Strait Islander; and
(c) the person is accepted as an Aboriginal or Torres Strait Islander by an
Aboriginal or Torres Strait Islander community. (6) In this section—
Aboriginal and Torres Strait Islander Justice Officer means a person employed
by the South Australian Courts Administration Authority whose duties
include— (a) assisting the court in sentencing Aboriginal or Torres Strait
Islander persons by providing advice on Aboriginal or Torres Strait Islander
society and culture; and (b) assisting the court to convene sentencing
conferences under this section; and (c) assisting Aboriginal or Torres Strait
Islander persons to understand court procedures and sentencing options and to
comply with court orders; family includes— (a) the defendant's spouse or
domestic partner; and (b) any person to whom the defendant is related by
blood; and (c) any person who is, or has been, a member of the defendant's
household; and (d) any person held to be related to the defendant according to
Aboriginal or Torres Strait Islander kinship rules and observances.
Chthonic beliefs
◦ Law is not command of a person or an official
◦ Information on the law is mixed with other kinds of information in the ‘bran tub’
◦ Change involves putting new information into the ‘bran tub’ to see if it develops (no
writtern, need to see if the individual accepts)
◦ New information adds to information that has already been transmitted
◦ No concept of individual rights (protect as part of the group, the order) (no one create the
system, from what they have experience)
Chthonic law and religion
◦ Different forms but constant presence
◦ Few formal religious structures
◦ No distinction between religious and secular (parliament doing it for public interest)
◦ Law is part of the divine order
◦ Focus on environment as nature is divine 神圣
Page 4 of 46
Lecture 5-11 Notes
Lecture 5 – Chthonic Legal Tradition
Recap
Classification of the – legal family (based on different criteria)
Each is different from one and another (might not be perfect, tell you something)
Glenn – legal tradition of the world (does not talk about is culture, the post-modern lawyers think
about culture, good idea to talk about it in relation to the seminar presentation)
Three elements: Past, traditio,
Brain tub:
Different version of tradition within one group (religious belief, sometimes leading version)
The different tradition between national legal system (what it mean? The law is officially rcognised
in that state as law – national legal system. The Australia legal system. The tradition has boarder
scope verses the national legal tradition within the boarder, for example Islamic law, common law…
A lot of mixing, Thailand – eight types
Chthonic deities
Glenn’s special term, others do not talk about it
Chthonic legal tradition
◦ Chthonic (Greek) meaning dwelling on or beneath the surface of the earth
◦ Terms like ‘Aboriginal’, ‘native’, ‘indigenous’ can be problematic for this group (Glenn is
unhappy with this term, because they are product of colonial time – use in the way to hold
up distinction, they might come from some other places)
◦ Who are Chthonic people? This tradition is about people who live ecological lives in close
harmony with the earth
◦ Oral tradition plays a defining role (information is transmitted orally: story telling…)
Emergence of chthonic law
◦ No point of origin or defining moment
◦ Emerged based on human experience and oral transmission of information
◦ Oldest legal tradition (2 million years)
◦ Differences among chthonic peoples but some commonalities (can be some crossing
commanlities)
Sources of chthonic law
◦ Oral teachings and storytelling is the primary way information is communicated
Page 1 of 46
,Comparative Law (LAW 2508, 2022 semester 1)
Lecture 5-11 Notes
◦ Oral tradition preserves what is seen as important: “it does not want its people looking
things up” (think how it is different from ours, how can anyone in our legal system can
remember, and also parliament is also continually changing the laws)
◦ Rejects formality in law (no exclusive sources of law) and attempts to write it down (what
people remembered and share knowledge)
***we learn from storytelling from common law as well (think about this) Chthonic law in the
common law?
Relationship? (Taxnotation)
Environment…
Sources of chthonic law
◦ Lack of writing (some can be writing, not just live in people’s mind, Glenn does not talk
about it)
◦ No privileged position of scribe 没有划线员的特权位置 (no status, the law lives
with the community, everyone is in the community, no privileges)
◦ Law tends to a consensus view (law is imposed on people – Australian legal
tradition. Need to get people to negotiate)
◦ Chthonic law is widely known and deeply embedded as it “lives in the people”
◦ All humans originally followed chthonic law
◦ Exit from chthonic tradition through the development of written law (the exist path from
the written law, you do not get consensus anymore – because all are written) (what is the
motivation for the written law?)
Chthonic institutions
◦ Few formal institutions (community based model)
◦ Little corruption without positions of formal authority (no elites - no judges/lawyers, no
chance to have corruption)
◦ May be council of elders or chiefs (older seem to have better understanding, stronger link,
depends on age)
◦ Monarchs (or chiefs) may rule with curia regis (means a council – who exercise the power)
Chthonic dispute resolution
◦ No formal court or litigation process (will not get bankrupt)
◦ Resolution is informal and involves the community (involving resolving conflicts, community
involve, goal is to promote reconciliation and remain harmony, the health status)
◦ No issue of cost or screening of cases
◦ Careful determination of facts and circumstances to promote reconciliation
◦ No formal source of law or rules but rather shared information on how to best live a life
◦ Application of principles and wisdom to encourage resolution and restoration
Mapping chthonic law
◦ Law of obligations (torts, contract)
◦ Few rules, focus on personal relations (focus on maintaining harmony)
◦ Family law
◦ Informal and little regulation (children brought up in a larger family vs western
concept)
Page 2 of 46
,Comparative Law (LAW 2508, 2022 semester 1)
Lecture 5-11 Notes
◦ Property law
◦ Live in harmony with the land (you only live)
◦ Communal enjoyment of land
◦ No private property or accumulation of wealth
◦ Reconciling chthonic notions of property law with western legal traditions
◦ Chthonic law increasingly recognised and adjudicated in common law courts
◦ Mabo v Queensland (No 2) [1992] HCA 23 from 1992 with the High Court in this case
the High Court of Australia dispensed with the fiction of terran Elias in the European
discovery of Australia and it found that there is this native title is called native title in
the common law system which is sui generous it's unique it's not equivalent to
anything we know in the common law system based on living on the land teaching
on the land and often a communal aspect to it which is very different from our
private property exclusive property rights and the cord in that case found that this is
based on a traditional connexion Australia indigenous persons information to their
land and it can coexist with other forms of land ownership when year later
parliaments enacted the native title act to try and come up with a scheme
superhatch limit the effect of this recently articulated common law doctrine OK and
provides a process for adjudicating claims and also addresses some unresolved
questions at that time about how they coexist with other rights that are recognised
in the common law for example pastoral rights were very much concern at that time
◦ Native Title Act 1993 (Cth)
◦ R v Van der Peet [1996] 2 SCR 507
◦ Delgamuukw v BC [1997] 3 SCR 1010
◦ Criminal law
◦ Responsibility of the community (no prison, injury to one is injury to the entire
community)
◦ Negotiation among groups for reparation or punishment
◦ Little or no economic crime, offences mostly related to physical violence
◦ Restore damage (e.g., sentencing circle)
◦ E.g., s 22 Sentencing Act 2017 (SA) (for Aboriginal and Torres Strait Islander,
family can come in to present views…)
◦ 22—Sentencing of Aboriginal and Torres Strait Islander defendants
◦ (1) Before sentencing an Aboriginal or Torres Strait Islander defendant, the
court may, with the defendant's consent, and with the assistance of an
Aboriginal and Torres Strait Islander Justice Officer—
◦ (a) convene a sentencing conference; and
◦ (b) take into consideration views expressed at the conference.
◦ (2) Nothing in subsection (1) is to be taken to require the court to convene a
sentencing conference if the court, after taking into account all relevant
sentencing purposes, principles and factors, determines not to convene a
sentencing conference. (3) A sentencing conference must comprise— (a) the
defendant and, if the defendant is a child, the defendant's parent or guardian;
and (b) the defendant's legal representative (if any); and (c) the prosecutor;
and (d) if the victim chooses to be present at the conference—the victim and,
if the victim so desires, a person of the victim's choice to provide assistance
and support; and (e) if the victim is a child—the victim's parent or guardian.
Page 3 of 46
, Comparative Law (LAW 2508, 2022 semester 1)
Lecture 5-11 Notes
(4) A sentencing conference may also include (if the court thinks the person
may contribute usefully to the sentencing process) 1 or more of the following:
(a) a person regarded by the defendant, and accepted within the defendant's
Aboriginal or Torres Strait Islander community, as an Aboriginal or Torres
Strait Islander elder; (b) a person accepted by the defendant's Aboriginal or
Torres Strait Islander community as a person qualified to provide cultural
advice relevant to sentencing of the defendant; (c) a member of the defendant's
family; (d) a person who has provided support or counselling to the defendant;
(e) any other person. (5) A person will be taken to be an Aboriginal or Torres
Strait Islander person for the purposes of this section if— (a) the person is
descended from an Aboriginal or Torres Strait Islander; and 25.11.2021—
Sentencing Act 2017 Sentencing purposes, principles and factors—Part 2
General sentencing provisions—Division 2 Published under the Legislation
Revision and Publication Act 2002 19 (b) the person regards themself as an
Aboriginal or Torres Strait Islander or, if the person is a young child, at least 1
of the parents regards the child as an Aboriginal or Torres Strait Islander; and
(c) the person is accepted as an Aboriginal or Torres Strait Islander by an
Aboriginal or Torres Strait Islander community. (6) In this section—
Aboriginal and Torres Strait Islander Justice Officer means a person employed
by the South Australian Courts Administration Authority whose duties
include— (a) assisting the court in sentencing Aboriginal or Torres Strait
Islander persons by providing advice on Aboriginal or Torres Strait Islander
society and culture; and (b) assisting the court to convene sentencing
conferences under this section; and (c) assisting Aboriginal or Torres Strait
Islander persons to understand court procedures and sentencing options and to
comply with court orders; family includes— (a) the defendant's spouse or
domestic partner; and (b) any person to whom the defendant is related by
blood; and (c) any person who is, or has been, a member of the defendant's
household; and (d) any person held to be related to the defendant according to
Aboriginal or Torres Strait Islander kinship rules and observances.
Chthonic beliefs
◦ Law is not command of a person or an official
◦ Information on the law is mixed with other kinds of information in the ‘bran tub’
◦ Change involves putting new information into the ‘bran tub’ to see if it develops (no
writtern, need to see if the individual accepts)
◦ New information adds to information that has already been transmitted
◦ No concept of individual rights (protect as part of the group, the order) (no one create the
system, from what they have experience)
Chthonic law and religion
◦ Different forms but constant presence
◦ Few formal religious structures
◦ No distinction between religious and secular (parliament doing it for public interest)
◦ Law is part of the divine order
◦ Focus on environment as nature is divine 神圣
Page 4 of 46
