The above rationales are, I suspect, unproblematic. There may be other good reasons to follow precedent, and they too may be part of the ‘common core’. But we need not elaborate on these or any additional rationales for one simple reason. They may explain why adherence to precedent is practical or expedient, how it saves time and effort, and how it allows practitioners to predict how current issues will be adjudicated. But they do not explain what is known as the rule of precedent or stare decisis. They do not constitutethe rule of precedent, nor do they justify it. All they argue for is consistency.
But consistency in adjudication, with or without citation to precedent, is not the proper measure for the existence of the rule of precedent. There is a difference between adherence to precedent and adherence to the rule of precedent. The rule of precedent declares that precedents must be followed. The mere adherence to precedent (i.e., consistency) may be explained by any number of reasons other than that adherence is mandatory. Judicial laziness could be one of them; a preference for old rules reflecting traditional values may be another. Consistency may also be more benevolently explained by an honest belief that the existing rule is the better one. None of these potential explanations imply that a legal system recognizes the rule of precedent as part of the law. None justify the sweeping conclusion that the rule of precedent is on the rise in jurisdictions like the Civil Law, where courts more or less consistently follow the same rule or even cite precedent in their opinions, much less the vastly overstated proposition that legal systems are ‘converging’.
Quantitative Analysis cannot establish that Stare Decisis is on the Rise
Various studies have made quantitative analyses of the role of precedents in Dutch law.2 They support a number of important observations that touch on the treatment of precedent in the Netherlands.
First, the Hoge Raad frequently cites to its own case law or makes general references to ‘settled law’ and also frequently incorporates by reference the advice given by the Advocate-General, which in turn tends to be based on a thorough analysis of the Hoge Raad’s case law and doctrinal writing. Second, explicit overrulings occur a few times (once or twice) per year and are thus very rare.3
Third, lower courts pay little attention to – or at least they do not cite – other lower court’s decisions with the exception of Kantonrechters who have jurisdiction in employment, landlord-tenant disputes and small claims, and whose decisions are often not subject to appeal.4 Lower courts cite to other lower court decisions both in support and to deviate from them. They sometimes cite to their own case law.5
The most noticeable finding is that the Hoge Raad cites its own case law both as a reason to decide likewise and to distinguish or deviate from them.6 Such case citations were rare in the early 1980s and have become fairly common practice today; their frequency went up from 1% in 1981-83 to 12% in 1992, and has risen since.7
None of these studies show that stare decisis is finding general acceptance in the Netherlands or that it is on the rise. The binding force of precedent cannot be measured by the sheer number of decided cases, or the frequency of the Hoge Raad’s citation to its own case law. In the Netherlands, the number of reported cases has steadily decreased in the last 15 years. And even if the total volume of reported and unreported cases went up and this were some sort of sign that case law has gained importance that would still do little to show a trend toward acceptance of the rule of precedent. A large volume more likely shows that the population has grown and with it the number of controversies, and perhaps also the number of judges on active duty. Or it is a sign that society has become increasingly complex and litigious, and that parties insist more and more on prosecuting their cases all the way up to the Hoge Raad, as has frequently been observed.8 It is true, we hope, that the more issues the Hoge Raad addresses, the fewer issues it leaves unresolved, and the more predictable the law becomes. But that does not show that the Hoge Raad feels obliged to follow precedents – just that it is making lots of them.
A court can increase its production of decisions by working more efficiently. As far as the Hoge Raad is concerned, part of that efficiency is due to technological improvements and the Court’s internal organization; another part has to do with its practice to summarily dispose of matters without opinion (or rather a very brief one) where the matter does not require reversal and raises no questions in the interests of clarity or the law’s development. See Article 81 RO (Judicature Act). Without addressing these alternative explanations one cannot possibly conclude that there is any change in the importance attached to precedents.
Even when the Hoge Raad cites its own cases that practice does not show it was bound to follow precedent. The Hoge Raad cites its case law both when it continues and when it overrules precedent. There is nothing in that practice that makes the cases cited in any way binding. Case citations are better explained by the ‘second rationale’ (see above): the implied message that litigants should stop bogging the overloaded court with more of the same. There certainly are cases that tend to show that the Hoge Raad supports this minimalist view of precedent. In HR 20 April 1990, NJ 1990, 525, for example, the Hoge Raad held that petitioner’s argument failed ‘on grounds set forth in paragraph 3.3 of HR 14 April 1989’. And in HR 15 June 1990, NJ 1990, 678, it summarily rejected the petitioner’s arguments ‘because the Court of Appeal’s decision is correct (cf. paragraph 3.2.2 of HR 16 March 1990, RvdW 1990, 68)’.
Similarly, when summary disposition pursuant to Article 81 was introduced in the 1980s the legislature had the second rationale in mind: it would allow the Hoge Raad to speedily reject weak or frivolous arguments ‘which for whatever reason raise issues that have been repeatedly addressed and settled by the Hoge Raad’.9
Even if one accepts minimalist precedent, as the Dutch courts undoubtedly do, one is still miles away from accepting stare decisis as a rule of law. To turn good policy into a broad and absolute rule that would apply even when the underlying policy does not, would amount to unwarranted formalism. Accepting strict adherence just because in 30, 40, 50 or even 90% of cases there are good reasons not to re-examine precedent in no way justifies summarily rejecting a good legal argument in the remaining percentage of cases merely because the issue has once been dealt with. If there is no continuity there is no law. But continuity alone does not justify the rule of precedent.
Quantitative analysis is nevertheless useful because the rule of precedent may be adequately disproved by a large incidence of non-adherence. If the Hoge Raad regularly fails to adhere to precedent (whether through express overruling or by simply not following (or ignoring) precedent, or indeed by narrowly limiting a prior decision to the precise facts on which it was decided, or otherwise), such failure serves as evidence that the rule of precedent does not exist in any meaningful sense. While explicit departures are rare in the Netherlands, their number is at the same time large enough from year to year to conclude that there is no rule of precedent in the Netherlands.10