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