Katja Funken "The Trend Towards Converge S804151001 LA732 Comparative Legal Ess Outline Introduction I. Classification of Common Law and Civil Law System IL. The Pros and Cons of Convergence IV. The Effects of Convergence 1. The trend Towards codification 2. Gap Filling 3. Stare decisis a) horizontal Stare Decisis b) Vertical Stare Decisis 4. Judicial Activism vS Mechanical Decision-making 5. Role of judges 6. Legal scholars Current Mechanisms of Convergence 1. The Importance of American Law 2. The Unification of Europe 3. The unification of law VI The Best of Both Worlds- Where should the legal Evolution Take Us? VIL. CONCLUSION
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 1 Outline I. Introduction II. Classification of Common Law and Civil Law Systems III. The Pros and Cons of Convergence IV. The Effects of Convergence 1. The Trend Towards Codification 2. Gap Filling 3. Stare Decisis a) Horizontal Stare Decisis b) Vertical Stare Decisis 4. Judicial Activism vs. Mechanical Decision-making 5. Role of Judges 6. Legal Scholars V. Current Mechanisms of Convergence 1. The Importance of American Law 2. The Unification of Europe 3. The Unification of Law VI. The Best of Both Worlds - Where Should the Legal Evolution Take Us? VII. CONCLUSION
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay The best of both Worlds-The Trend Towards Convergence of the Civil Law and the Common Law System I Introduction Increasing commercial and cultural internationalisation and amalgamation have had and will continue to have their consequences in the law of all legal systems. In particular the two great Western legal traditions, the Common Law and the Civil Law system, have become closer to each other during the last decades This paper will analyse the impact, mechanisms and future developments of the convergence of the two systems. It is divided into seven parts After some introductory remarks on the distinction between Common law and civil Law systems, this paper will briefly contrast the pros and cons of convergence. The next section examines how some of the previously visible differences between Common Law and civil law systems have already been diminished or are about to decrease. The analysis will focus on the trend towards codification in many Common Law countries, the approaches towards the filling of gaps in statutory provisions, judicial activism, the doctrine of stare decisis and the roles of judges and legal scholars It then looks into the various mechanisms and factors that contribute to the process of convergence, such as the importance of American law, the unification of Europe and the unification of legal rules by means of conventions and model laws For this categorisation see Clark Ds, The Idea of the Civil Law Tradition, in Comparative and Private International Law, Essays in Honor of John Henry Merryman on His Seventieth Birthday 11 Clark ed.. Duncker humblot. Berlin 1991 at 21
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 2 "The Best of Both Worlds" - The Trend Towards Convergence of the Civil Law and the Common Law System I. Introduction Increasing commercial and cultural internationalisation and amalgamation have had and will continue to have their consequences in the law of all legal systems. In particular the two great Western legal traditions, the Common Law and the Civil Law system1 , have become closer to each other during the last decades. This paper will analyse the impact, mechanisms and future developments of the convergence of the two systems. It is divided into seven parts. After some introductory remarks on the distinction between Common Law and Civil Law systems, this paper will briefly contrast the pros and cons of convergence. The next section examines how some of the previously visible differences between Common Law and Civil Law systems have already been diminished or are about to decrease. The analysis will focus on the trend towards codification in many Common Law countries, the approaches towards the filling of gaps in statutory provisions, judicial activism, the doctrine of stare decisis and the roles of judges and legal scholars. It then looks into the various mechanisms and factors that contribute to the process of convergence, such as the importance of American law, the unification of Europe and the unification of legal rules by means of conventions and model laws. 1 For this categorisation see Clark DS, 'The Idea of the Civil Law Tradition', in Comparative and Private International Law; Essays in Honor of John Henry Merryman on His Seventieth Birthday 11, Clark ed., Duncker & Humblot, Berlin, 1991 at 21
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay The final part will examine which elements of both systems should prevail in the egal evolution"of convergence, in order to make the newly emerging system more efficient. It will be argued that the Civil law, due to its economy and ability to quickly react to changing societal parameters, is better equipped to meet the challenges of today's fast-paced world I. Classification of Common and civil Law Systems As an introductory remark, one should keep in mind that the distinction between Civil Law systems and Common Law systems tends to blur the fact that there is no such thing as a uniform system of Civil Law. when australian british or US scholars use the expression "Civil Law system", as contrasted to a " Common Law system", they usually refer to the whole body of private law within the countries of the European continent as well as the laws of latin america. The characteristic common feature of these laws is that they are contained in so-called civil codes. Classic European comparative literature, however, usually does not mention the concept of the Civil Law as such, but distinguishes between the codes of single legal communities, such as the romanic, Germanic or the Nordic family. Under this system of classification, the Common Law is just one of the legal communities, which would be qualified as the Anglo-Saxon family". In fact, there are some arguments in favour of this classification, as there are considerable substantial divergences as to methods of interpreting the law or judicial style between, for example, the romanic and the 2 See Lawson, FH, A Common Lawyer Looks at the Civil Law, University of Michigan, Ann Arbor 1953at3
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 3 The final part will examine which elements of both systems should prevail in the "legal evolution" of convergence, in order to make the newly emerging system more efficient. It will be argued that the Civil Law, due to its economy and ability to quickly react to changing societal parameters, is better equipped to meet the challenges of today's fast-paced world. II. Classification of Common and Civil Law Systems As an introductory remark, one should keep in mind that the distinction between Civil Law systems and Common Law systems tends to blur the fact that there is no such thing as a uniform system of Civil Law. When Australian, British or US scholars use the expression "Civil Law system", as contrasted to a "Common Law system", they usually refer to the whole body of private law within the countries of the European continent as well as the laws of Latin America. The characteristic common feature of these laws is that they are contained in so-called civil codes. Classic European comparative literature, however, usually does not mention the concept of the Civil Law as such, but distinguishes between the codes of single legal communities, such as the Romanic, Germanic or the Nordic family.2 Under this system of classification, the Common Law is just one of the legal communities, which would be qualified as the "Anglo-Saxon family". In fact, there are some arguments in favour of this classification, as there are considerable substantial divergences as to methods of interpreting the law or judicial style between, for example, the Romanic and the 2 See Lawson, FH, A Common Lawyer Looks at the Civil Law, University of Michigan, Ann Arbor, 1953 at 3
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay Germanic family. Therefore, one must bear in mind that there is, in reality, no coherent system of Civil Law. Similarly, the assumption that there is a homogeneous Common Law in all so-called Common Law countries cannot withstand closer scrutiny. For instance, the American concept of judicial review does not exist in the British system. Established by Justice John Marshall in the landmark decision Marbury v. Madison, the doctrine of judicial review confers upon the US Supreme Court and on the highest court of every US state the power to decide the constitutionality of acts of the legislative and executive branches of their jurisdictions. However, for the purpose of this macro-comparative discussion, it is appropriate to employ the distinction between Common Law and civil Law in a broader sense IlL. The Pros and Cons of Convergence Globalisation"and"Internationalisation"have become catchwords that now quasi- automatically arouse positive feelings of progress, mutual understanding and new opportunities. As to the convergence of legal systems, however, it might be useful to step back and reflect on the pros and cons, before rashly celebrating its unrestricted desirability The values of convergence in modern society are at hand: it facilitates international transactions, increases the general welfare promotes the diffusion of culture, and leads to international understanding. 4 35Us.(1 Cranch)137(1803) Merryman JH, On the Convergence(and Divergence)of the Civil Law and the Common Law,(1981) 17 Stanford Journal of International Law 357, reprinted in: Merryman JH, The Civil Law Tradition Europe, Latin America and East Asia, The Michie Company, Charlottesville/VA, 1994 at 19
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 4 Germanic family. Therefore, one must bear in mind that there is, in reality, no coherent system of Civil Law. Similarly, the assumption that there is a homogeneous Common Law in all so-called Common Law countries cannot withstand closer scrutiny. For instance, the American concept of judicial review does not exist in the British system. Established by Justice John Marshall in the landmark decision Marbury v. Madison3 , the doctrine of judicial review confers upon the US Supreme Court and on the highest court of every US state the power to decide the constitutionality of acts of the legislative and executive branches of their jurisdictions. However, for the purpose of this macro-comparative discussion, it is appropriate to employ the distinction between Common Law and Civil Law in a broader sense. III. The Pros and Cons of Convergence "Globalisation" and "Internationalisation" have become catchwords that now quasiautomatically arouse positive feelings of progress, mutual understanding and new opportunities. As to the convergence of legal systems, however, it might be useful to step back and reflect on the pros and cons, before rashly celebrating its unrestricted desirability. The values of convergence in modern society are at hand: it facilitates international transactions, increases the general welfare, promotes the diffusion of culture, and leads to international understanding.4 3 5 U.S. (1 Cranch) 137 (1803). 4 Merryman JH, 'On the Convergence (and Divergence) of the Civil Law and the Common Law', (1981) 17 Stanford Journal of International Law 357, reprinted in: Merryman JH, The Civil Law Tradition: Europe, Latin America and East Asia, The Michie Company, Charlottesville/VA, 1994 at 19
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay From the economic point of view, uniformity and simplicity may reduce the transaction costs and significantly avoid uncertainties connected with the use of conflict of laws rules The fact that a mixed body of case law and statutes-such as the law of the European Community-is successfully dealt with by the Civil Law courts of the Continent and by the Common Law courts in the United Kingdom and Ireland proves that convergence works. The hybrid systems of Louisiana, Quebec, Puerto Rico and south Africa provide some more examples However, one should not overemphasise the significance and desirability of convergence. It is important to keep in mind that uniformity should never become an end in itself, unrelated to identifiable mutual benefits, but merely striving for simplicity. This is also important as to the preservation of cultural authenticity, variety and richness. When the forces of convergence threaten what gives a people its cultural identity, the mark is clearly overstepped and it is time to draw back and reconside Nevertheless, the convergence between Civil and Common Law Systems is progressing fast and its effects are obvious in todays legal reality, as the following paragraph will demonstrate IV. The Effects of Convergence This section will show how the convergence of the Common Law and the Civil Law has already diminished some of the previously visible differences between the two
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 5 From the economic point of view, uniformity and simplicity may reduce the transaction costs and significantly avoid uncertainties connected with the use of conflict of laws rules. The fact that a mixed body of case law and statutes - such as the law of the European Community - is successfully dealt with by the Civil Law courts of the Continent and by the Common Law courts in the United Kingdom and Ireland proves that convergence works. The hybrid systems of Louisiana, Quebec, Puerto Rico and South Africa provide some more examples. However, one should not overemphasise the significance and desirability of convergence. It is important to keep in mind that uniformity should never become an end in itself, unrelated to identifiable mutual benefits, but merely striving for simplicity. This is also important as to the preservation of cultural authenticity, variety and richness. When the forces of convergence threaten what gives a people its cultural identity, the mark is clearly overstepped and it is time to draw back and reconsider. Nevertheless, the convergence between Civil and Common Law Systems is progressing fast and its effects are obvious in today’s legal reality, as the following paragraph will demonstrate. IV. The Effects of Convergence This section will show how the convergence of the Common Law and the Civil Law has already diminished some of the previously visible differences between the two systems
Katja Funken "The Trend Towards Converge S804151001 LA732 Comparative Legal Ess 1. The Trend Towards Codification The classic distinctive feature of the civil law he embodiment of general principles of law in a code, whereas the most important sources of law in Common Law jurisdictions are judicial case decisions. Although this observation is still valid one can detect a trend towards codification in many Common Law countries For instance Australia, England and the United States now have an extensive body of codes in the fields of bankruptcy, intellectual property, antitrust, banking regulation, securities and tax law As to the United States of America, Judge Calabresi observed in 1982 that the United States have entered the " age of statutes" and that statutes may be used as sources of aw beyond their terms Others have even drawn the conclusion that the interpretation of statutes is America's new"primary source of law". Many American cases are indeed concerned with the interpretation of statutes, such as the Bankruptcy Act or the Internal Revenue Code and in carrying out this task, court in the United States are basically using canons that have been developed by civilian methodology. Some states, such as California, even have complex civil codes. 0 See Mattei U, Comparative Law and Economics, University of Michigan Press, Michigan, 1997 at 01-21 See generally Calabresi G, A Common Law for the Age of Statutes, Harvard University Press Cambridge/Mass. 1985 7 See id. at 87 ee Eskridge WN, Frickey PP, Statutory Interpretation as Practical Reasoning,(1990)42 Stan. L Rev. 321, Herman S, The Fate and the Future of Codification in America, (1996)40 Am J Legal Hist 407, Rosen MD, What Has Happened to the Common law? Recent American Codifications and The Impact on Judicial Practice and the Law's Subsequent Development,(1994)Wis. L Rev. 1119 See Mank BC, Textualism's Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deferenc to Executive Agencies, (1998)86 Ky. L.527 at 528 Sunstein C, Interpreting Statutes in the Regulatory State, (1989)103 Harv. L. Rev. 40 Published, for instance by Parker Publications(Parker's 1997 California Civil Code: Within Excerpts from the legislative Council's Digest of New and Amended Code Sections
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 6 1. The Trend Towards Codification The classic distinctive feature of the Civil Law is the embodiment of general principles of law in a code, whereas the most important sources of law in Common Law jurisdictions are judicial case decisions. Although this observation is still valid, one can detect a trend towards codification in many Common Law countries. For instance Australia, England and the United States now have an extensive body of codes in the fields of bankruptcy, intellectual property, antitrust, banking regulation, securities and tax law.5 As to the United States of America, Judge Calabresi observed in 1982 that the United States have entered the "age of statutes" 6 and that statutes may be used as sources of law beyond their terms.7 Others have even drawn the conclusion that the interpretation of statutes is America's new "primary source of law". 8 Many American cases are indeed concerned with the interpretation of statutes, such as the Bankruptcy Act or the Internal Revenue Code and in carrying out this task, courts in the United States are basically using canons that have been developed by civilian methodology.9 Some states, such as California, even have complex civil codes.10 5 See Mattei U, Comparative Law and Economics, University of Michigan Press, Michigan, 1997 at 101-21. 6 See generally Calabresi G, A Common Law for the Age of Statutes, Harvard University Press, Cambridge/Mass., 1985. 7 See id. at 87. 8 See Eskridge WN, Frickey PP, 'Statutory Interpretation as Practical Reasoning', (1990) 42 Stan. L. Rev. 321, Herman S, 'The Fate and the Future of Codification in America', (1996) 40 Am. J. Legal Hist. 407, Rosen MD, 'What Has Happened to the Common law? Recent American Codifications and Their Impact on Judicial Practice and the Law's Subsequent Development', (1994) Wis. L. Rev. 1119. 9 See Mank BC, 'Textualism's Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deferenc to Executive Agencies', (1998) 86 Ky. L.J. 527 at 528, Sunstein C, 'Interpreting Statutes in the Regulatory State', (1989) 103 Harv. L. Rev. 405. 10 Published, for instance by Parker Publications (Parker's 1997 California Civil Code: Within Excerpts from the Legislative Council's Digest of New and Amended Code Sections)
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay The creation of the American Uniform Commercial Code (ucc)is another indication of the growing number of codification and the subsequent increased importance of systematic thinking in American law. Scholars have identified a strong element of German influence on the style and structure of the UCC. For instance, Schlesinger observes that Karl N. llewellyn, the principal drafter of the code, "spent considerable time in Germany, and there can be no doubt that some of the Code's important features were inspired by his study of German law. "l2 Moreover, there are also a number of developing Common Law-based countries that imported some codes wishing to modernise their legal system quickly by transplanting some aspects of the law of a more developed Civil Law nation, rather than engaging in the more difficult and time-consuming "updating" of their judge-made law. The adoption by Ethiopia of European-style codes, including a civil code based on the Code Napoleon, provides an example The reason for the increasing codification in Common Law jurisdictions, in the words of Guido Calabresi, is that the courts are not capable of writing speedily enough most of the rules that a modern society apparently needs. Considering the constant changes in todays fast-moving world, the age of statutes" and the concurrent onvergence of the Common Law and the Civil law system are likely to continue 2. Gap Filling For a general overview see Whitman J, "Commercial Law and the American Volk: A Note on Llewellyn's German Sources for the Uniform Commercial Code, (1987)97 Yale Law Journal 156 See Schlesinger RB, Comparative Law, Cases, Text, Materials, 6 ed, Foundation Press Mineola/NY. 1998. at 21 Merryman JH, ' Convergence and Divergence of the Civil Law and the Common Law supra note 2, at Calabresi G, supra note 4, at 163
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 7 The creation of the American Uniform Commercial Code (UCC) is another indication of the growing number of codification and the subsequent increased importance of systematic thinking in American law. Scholars have identified a strong element of German influence on the style and structure of the UCC.11 For instance, Schlesinger observes that Karl N. Llewellyn, the principal drafter of the code, "spent considerable time in Germany, and there can be no doubt that some of the Code's important features were inspired by his study of German law."12 Moreover, there are also a number of developing Common Law-based countries that imported some codes wishing to modernise their legal system quickly by transplanting some aspects of the law of a more developed Civil Law nation13, rather than engaging in the more difficult and time-consuming "updating" of their judge-made law. The adoption by Ethiopia of European-style codes, including a civil code based on the Code Napoleon, provides an example.14 The reason for the increasing codification in Common Law jurisdictions, in the words of Guido Calabresi, is that 'the courts are not capable of writing speedily enough most of the rules that a modern society apparently needs."15 Considering the constant changes in today's fast-moving world, the "age of statutes" and the concurrent convergence of the Common Law and the Civil Law system are likely to continue. 2. Gap Filling 11 For a general overview see Whitman J, ‘Commercial Law and the American Volk: A Note on Llewellyn’s German Sources for the Uniform Commercial Code’, (1987) 97 Yale Law Journal 156. 12 See Schlesinger RB, Comparative Law, Cases, Text, Materials, 6th ed., Foundation Press, Mineola/NY, 1998, at 21. 13 Merryman JH, 'Convergence and Divergence of the Civil Law and the Common Law supra note 2,'at 21. 14 Id. at 21. 15 Calabresi G, supra note 4, at163
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay Many scholars assert that there are still remarkable differences as to how Civil Law and Common Law jurists fill gaps in statutory provisions. However, this is highly contestable Let us first turn to the traditional civilian approach to the role of statutes, which is reflected in a citation by French jurist Jean Etienne Marie Portalis: The function of the law (loi) is to fix, in broad outline, the general maxims of justice(droit ),to establish principles rich in suggestiveness(consequences), and not to descend into details."l7 French jurists distinguish between those situations in which the facts do not fall within the scope of a statutory provision or code(" silence de la loi" )and those in which they only partly fall within the scope of that code or statutory provision ("insufficiency of the law"). In the former cases, French judges attempt to find a link by means of deductive reasoning or analogy. In the latter cases, they try to overcome the insufficiency of the law by a " creative interpretation"of the code provisions concerned, which may include resorting to factors such as the "intent of the legislature "or the "interest of the parties".The French example illustrates how Civil Law judges usually attempt to find a solution coherent with the" spirit"and "system of the code Furthermore, section 7 of the Austrian Civil Code (Allgemeines Buirgerliches Gesetzbuch or ABGB) states that .. where a case cannot be decided either according to the literal text or the plain meaning of a statute, regard shall be had to Farnsworth EA, 'A Common Lawyer's View of His Civilian Colleagues(1996)57 La. L Rev. 227 at 230 I Portalis JEM et al., Discours Preliminaire Prononce Lors de la Presentation du Project(de Code Civil)de la Commission du Governement, in: Fenet PA, Recueil Complet des Travaux Preparatoires du Code Civil T.I. 470. 1827, as quoted in: Farnsworth EA, supra note 13 at 230 Mousourakis, G, LA 431/LA 631 Lecture in Comparative Law, 20. April 2000, The University of Queensland, TC Beirne School of Law
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 8 Many scholars assert that there are still remarkable differences as to how Civil Law and Common Law jurists fill gaps in statutory provisions.16 However, this is highly contestable. Let us first turn to the traditional civilian approach to the role of statutes, which is reflected in a citation by French jurist Jean Etienne Marie Portalis: "The function of the law (loi) is to fix, in broad outline, the general maxims of justice (droit), to establish principles rich in suggestiveness (consequences), and not to descend into details." 17 French jurists distinguish between those situations in which the facts do not fall within the scope of a statutory provision or code ("silence de la loi") and those in which they only partly fall within the scope of that code or statutory provision ("insufficiency of the law").18 In the former cases, French judges attempt to find a link by means of deductive reasoning or analogy. In the latter cases, they try to overcome the insufficiency of the law by a "creative interpretation" of the code provisions concerned, which may include resorting to factors such as the "intent of the legislature" or the "interest of the parties".19 The French example illustrates how Civil Law judges usually attempt to find a solution coherent with the "spirit" and "system" of the code. Furthermore, section 7 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch or ABGB) states that “[…] where a case cannot be decided either according to the literal text or the plain meaning of a statute, regard shall be had to 16 Farnsworth EA, 'A Common Lawyer's View of His Civilian Colleagues' (1996) 57 La. L. Rev. 227 at 230. 17 Portalis JEM et al. , 'Discours Preliminaire Prononce Lors de la Presentation du Project (de Code Civil) de la Commission du Governement, in: Fenet PA, Recueil Complet des Travaux Preparatoires du Code Civil T.I. 470, 1827, as quoted in: Farnsworth EA, supra note 13 at 230. 18 Mousourakis, G, LA 431/LA 631 Lecture in Comparative Law, 20. April 2000, The University of Queensland, TC Beirne School of Law. 19 Id
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay the statutory provisions concerning similar cases and to the principles which underlie other laws regarding similar matters. Civilian jurists in fact distinguish between two methods of analogy: statutory analogy ("Gesetzesanalogie")and analogy of law ("Rechtsanalogie') If the judge follows the method of statutory analogy, he or she fills a gap in the code by deriving a rule from a provision contained in the code and applies it to the case at hand, because he or she finds that the two cases are similar. In the case of analogy of law, the starting point is not one single provision but several provisions. Again, a rule is derived from the codified law and applied to the case before the court In light of these observations american scholar grant gilmore described a civilian code as"I.a legislative enactment which entirely pre-empts the field/. thus when a court comes to a gap or an unforeseen situation, its duty is to find, by extrapolation and analogy, a solution consistent with the policy of the codifying lmw”20 Common Law judges, on the other hand, traditionally did not need to fill gaps at all The reason for this is what e. allan farnsworth called the common law "Swiss cheese theory"of interpretation: Regard the Code as a piece of Swiss cheese with all its holes, and if, when you search for a solution to your case, you find a hole in the Code, look through it to the backdrop of case law.- Therefore, for a Common Law judge case law has represented the classic source of law and statutes were an exceptional intrusion into the body of Common Law. Thus, whenever a statute did not specifically address the facts the common law was the default rule and courts in 20 See also Gilmore G, 'Legal Realism: Its Cause and Cure'( 1961)70 Yale LJ. 1037 at 1043 See Farnsworth EA, supra note 16 at 231 See Landis JM, 'A Note on"Statutory Interpretation", (1930)43 Harv. L. Rev. 886
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 9 the statutory provisions concerning similar cases and to the principles which underlie other laws regarding similar matters.” Civilian jurists in fact distinguish between two methods of analogy: statutory analogy (“Gesetzesanalogie”) and analogy of law (“Rechtsanalogie”). If the judge follows the method of statutory analogy, he or she fills a gap in the code by deriving a rule from a provision contained in the code and applies it to the case at hand, because he or she finds that the two cases are similar. In the case of analogy of law, the starting point is not one single provision but several provisions. Again, a rule is derived from the codified law and applied to the case before the court. In light of these observations, American scholar Grant Gilmore described a civilian code as “[…] a legislative enactment which entirely pre-empts the field […]: thus, when a court comes to a gap or an unforeseen situation, its duty is to find, by extrapolation and analogy, a solution consistent with the policy of the codifying law.”20 Common Law judges, on the other hand, traditionally did not need to fill gaps at all. The reason for this is what E. Allan Farnsworth called the Common Law "Swiss cheese theory" of interpretation: Regard the Code as a piece of Swiss cheese with all its holes, and if, when you search for a solution to your case, you find a hole in the Code, look through it to the backdrop of case law. 21 Therefore, for a Common Law judge case law has represented the classic source of law and statutes were an exceptional intrusion into the body of Common Law.22 Thus, whenever a statute did not specifically address the facts, the Common Law was the default rule and courts in 20 See also Gilmore G, ' Legal Realism: Its Cause and Cure' (1961) 70 Yale L.J. 1037 at 1043. 21 See Farnsworth EA, supra note 16 at 231. 22 See Landis JM, 'A Note on "Statutory Interpretation", (1930) 43 Harv. L. Rev. 886
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay Common Law countries have usually refused to fill gaps in statutes by statutory analogy This approach, however, evolved from an age where statutes were of marginal importance. Today it is, to a large extent, no longer tenable. This is due to the above mentioned increase in codification in countries such as Australia. the United Kingdom and the United States. This development of statutes as a source of law in Common Law jurisdictions justifies and in some areas even requires the use of statutor analogies in order to fill gaps. For instance in the United States, entire areas of business law are regulated by federal statutes, but at the same time, as Justice Brandeis noted in the famous US Supreme Court case of Erie Railroad Co. v. Tompkins there is no federal general Common Law"in America The increase in statutes in Common Law jurisdictions is likely to require Common Law judges to fill gaps in those codes by statutory analogies, just as Civil Law judges do. Thus, the filling of gaps is likely to be an area of future convergent 3. Stare decisis Another classic perceived difference between the two systems is that Civil Law juris- dictions, unlike Common Law countries, do not acknowledge the doctrine of stare However, a recent survey of several civil and common law countries demonstrates that today the way judges in both legal systems treat precedents is very similar. The factors that lead to this practical convergence are examined below tiyah rs, Common Law and Statute Law(1985)48 Mod. L Rev. I at 12 304US64,78(1938) Lundmark T, Juristische Technik und Methodik des Common Law, LIt Verlag, Munster, 1998 at 22 Merryman JH, The Civil Law Tradition, Stanford University Press, Stanford/CA, 1969, at 24-25 Peczenik A, The Binding Force of Precedents, in: Interpreting Precedents: A Comparative Stu MacCormick ND, Summers Rs(eds ) Ashgate Dartmouth, Sydney, 1997 at 461 10
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 10 Common Law countries have usually refused to fill gaps in statutes by statutory analogy. 23 This approach, however, evolved from an age where statutes were of marginal importance. Today it is, to a large extent, no longer tenable. This is due to the abovementioned increase in codification in countries such as Australia, the United Kingdom and the United States. This development of statutes as a source of law in Common Law jurisdictions justifies and in some areas even requires the use of statutory analogies in order to fill gaps. For instance in the United States, entire areas of business law are regulated by federal statutes, but at the same time, as Justice Brandeis noted in the famous US Supreme Court case of Erie Railroad Co. v. Tompkins24 "there is no federal general Common Law" in America. The increase in statutes in Common Law jurisdictions is likely to require Common Law judges to fill gaps in those codes by statutory analogies, just as Civil Law judges do. Thus, the filling of gaps is likely to be an area of future convergence. 3. Stare Decisis Another classic perceived difference between the two systems is that Civil Law jurisdictions, unlike Common Law countries, do not acknowledge the doctrine of stare decisis. 25 However, a recent survey of several civil and common law countries demonstrates that today the way judges in both legal systems treat precedents is very similar.26 The factors that lead to this practical convergence are examined below. 23 Atiyah RS, 'Common Law and Statute Law' (1985) 48 Mod. L. Rev. 1 at 12. 24 304 US 64, 78 (1938). 25 Lundmark T, Juristische Technik und Methodik des Common Law, LIT Verlag, Münster, 1998 at 22, Merryman JH, The Civil Law Tradition, Stanford University Press, Stanford/CA, 1969,at 24-25. 26 Peczenik A, 'The Binding Force of Precedents', in: Interpreting Precedents: A Comparative Study, MacCormick ND, Summers RS (eds.), Ashgate Dartmouth, Sydney, 1997 at 461
