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. 886Katja 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