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This report addresses the Rule of Precedent or stare decisis, the extent to which it finds recognition in the Netherlands, the approach to precedent by the Supreme Court (Hoge Raad) and other Dutch courts, and the theoretical underpinnings of that approach. Professor Hondius’ comments provide an excellent starting point for such analysis.
I salute the International Academy of Comparative Law’s decision to address this topic now. Although much – perhaps too much – has been written about precedent, I actually believe that some great comparative lessons can be drawn from the approach of the courts in the Netherlands and the theory of precedent they have developed. (See below, in particular § 9). I also believe that a thorough, worldwide, comparative study of this issue is desirable because the Civil Law and Common Law still lack a proper understanding of each other’s systems, and stubborn misconceptions linger in this area. To clear up a few:
- the importance of precedent is not measured by the sheer number of reported cases, or the frequency of citation to decided cases (see below § 4);
- binding force is an on/off category; it is not a matter of degree (at least not under traditional legal theory) (see § 6);
- stare decisis, the binding force of precedent, is not to be confused with accepting precedents as a source of law. Indeed, based on one strand of English legal thought, it is the exact opposite (see § 7).
I do not believe there is any sort of convergence among the various legal systems, notably the Common Law and the Civil Law, even if we consider that the highest courts in England, Australia, Canada and the United States ultimately do not consider themselves bound by their own decisions. Convergence implies a trend or some type of movement toward a position in the center, which is not what is happening at this point in time. England, for example, threw off its shackles in 1966, which is 40 years ago, hardly a reason to now all of a sudden speak of a ‘trend’. To the extent courts at the intermediate level remain bound by precedents of their own making, such a rule is not being followed in the Netherlands and, by common agreement, deserves no following whatsoever.
This report describes a philosophy of adjudication that is not what the Common Law has traditionally used to justify stare decisis. But it fits better to explain when precedent should or should not be followed than the Common Law’s own theories, which are ultimately inadequate. The philosophy more or less prevails in the Hoge Raad’s jurisprudence. It is a flexible methodology that accounts for the Hoge Raad’s evolving case law without the ‘childish fiction’ that every new decision represents how the law should always have been understood. It is a conservative approach in the true sense of the word, but not ultra-conservative like strict adherence to precedent is.
In the spirit of this conference, however, I address first what I believe may fairly be called the ‘common core’ when it comes to the treatment of precedents in different legal systems.
The ‘Common Core’: a Minimalist take on Precedent
There are at least three benefits to adhering to precedent, each of which provide a good policy reason why courts should generally follow precedents. They may represent a ‘common core’ among a variety of approaches to precedent in the sense that lawyers from different jurisdictions would agree that these policies are sensible. But even when each of these three rationales are combined in support of adherence to precedent they present no more than a minimalist view of precedent. This minimalist view of precedent is based on expedience:
Efficient use of judicial resources. The first benefit or rationale, I believe, is judicial efficiency. Similar issues and questions of law come up all the time. Once a competent court has struggled with a legal problem and resolved it intelligently, other courts can, and should, reap the benefits of that mental exercise. Courts must not engage in reinventing the wheel; it is too time-consuming and – assuming the previous court is just as competent as the next – not productive. Avoiding duplication of efforts saves everyone’s time, including that of legal counsel. By adopting another court’s solution, or sticking with its own decision reached in an earlier case, the court is basically telling the advocates:
‘Look, you don’t have to keep pressing the same argument. We, and our colleagues on the bench, have already considered them, weighed them against other arguments, and rejected (or accepted) them’.
Thus if no substantially different arguments are offered, the presumption must be that the next case will be decided the same way. This rationale does not invoke the notion that the law should apply equally to all. It is efficiency, plain and simple.
Setting the parameters of the debate. A second rationale is also practical. In a world where ‘everything has to do with everything’ adherence to precedent serves as an indispensable tool to focus (i.e., limit) the debate between the parties and the judge. Counsel may advance whatever argument they want; but it better be tied, even if only loosely, to existing law. If something similar has been done by another court an advocate’s claim that this court should act likewise is not outlandish or frivolous. It is at least a good faith argument. You cannot be ridiculed by your opponent. You will not be laughed out of court. You are within the bounds of zealous advocacy.
Predictability. Third, adherence to precedent serves as the necessary link between knowing the law as applied and the ability to predict how it is likely to be applied next time on a similar set of facts. That is important because specific facts test the scope and limits of general rules. Without adherence to precedent judicial decisions would merely be drops of history. The legal community would have nothing but a few general statements of the law. And general propositions, in the famous words of Oliver Wendell Holmes, do not decide concrete cases.1