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 10Katja 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 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 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 juris￾dictions, 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