Up to this point, we have assumed the rule of precedent is all about the horizontal relationship of precedents. Vertical stare decisis – the rule that a lower court must abide by the decisions of a higher court that has appellate jurisdiction over its decisions – is interesting from a comparative perspective because the Netherlands and the Common Law stand diametrically opposed. As far as I am aware, the lower courts in England (and Wales and Scotland) must follow their superior courts’ decisions.11 The same is generally true in the United States. English and U.S. courts have gone as far as rejecting ‘anticipatory overruling’ – departing from precedent ‘in anticipation of’ (and therefore prior to) the House of Lords’ or the U.S. Supreme Court’s actual overruling of its precedents, at a time when such overruling is perceived as imminent.12
Again, there is no such rule in the Netherlands. There are rare cases that have suggested otherwise,13 but the predominant view is that the lower courts are not obligated to follow the case law of appellate courts or the Hoge Raad, and that the courts of appeal need not follow the Hoge Raad.14 For example, in Hof Amsterdam 19 December 1991, NJ 1993, 36, the Amsterdam Court of Appeals referred to the Hoge Raad’s case law but declined to follow it because the cases were old, criticized in the literature, and there had been an increasing practice among lower courts not to follow these decisions.15
Nor can the Hoge Raad’s practice of citing its own decisions be construed as implying that a lower court is being reversed because it failed to treat those decisions as binding. The Hoge Raad cites its case law even when the cited opinions issued that same day or a week earlier and have remained unpublished. For example, in HR 19 June 1992, NJ 1992, 590, the Hoge Raad held the trial court should have decided in accordance with the Hoge Raad’s decision of 21 June 1991. But that decision had not yet been published at the time of the trial court’s decision on July 4, 1991, which was only two weeks later.16 Clearly, references such as these serve only to indicate what the Hoge Raad believes to be the correct view that should have been applied below; they do not suggest that there is a rule of vertical stare decisis.17
Obviously, the ‘sanction’ for a failure to follow precedent is likely a reversal (assuming there is a right of appeal),18 and that is, like in England and the U.S., the only sanction. Since reversal threatens a Dutch court the same way it threatens its Common Law counterparts, one may wonder why the rules are nevertheless so different between them. The explanation, I believe, lies in a few rules whose collective function is to strike a balance between uniformity of domestic law and judicial experimentation. Generally speaking, Dutch law perceives diversity of opinion (or judicial experiment if you like) among the lower courts as relatively unproblematic or even helpful to the development of the law – a view that distinguished scholars such as Jan Vranken and Jan van Dunné have expressly endorsed.19 Vertical stare decisis, on the other hand, serves the uniform application of the law, and is therefore, as such, less conducive to experiment. It thus counterbalances other factors at play within the Common Law that may have an opposite effect, such as the fact that there is no appeal as of right to the House of Lords or the U.S. Supreme Court, a factor that would otherwise foster almost unhibited experimentation.
In the Netherlands, by contrast, litigants have a broad entitlement to judicial review by the Hoge Raad (Art. 81.RO). Thus, whatever diversity the absence of a rule of vertical stare decisis invites, it is severely curtailed by the lower courts’ desire to keep their reversal rates down.
Although each legal system will have to strike its own balance its own way, the Common Law experience with anticipatory overruling shows that vertical stare decisis goes too far in either system. Once it is clear, or at least likely, that obsolete precedents are ready to be buried and an appellate court knows it faces little risk of reversal if it did just that, it should not be forced to apply it one last time – just for the sake of it. That is wasteful and serves no purpose but pointless formalism. It does not even serve the minimalist reasons for consistency in adjudication (efficient use of judicial resources, setting the parameters of the debate, or predictability). It forces another round of litigation upon the parties, does not limit the range of relevant arguments which will inevitably expand before the Supreme Court, and it does specifically not set forth how the case will be decided next time.
It is pretty clear that the Hoge Raadwould not play the vertical stare decisis game. Indeed, in HR 16 October 1992, NJ 1993, 167 it was willing to overrule its own 1960 decision precisely because it had been criticized and frequently not followed by the lower courts – quite the opposite of vertical stare decisis and an implicit endorsement of anticipatory overruling by a noble court whose willingness to listen to criticism is quite admirable.
For similar reasons I must admit to having a hard time understanding a rule that binds a court of intermediate jurisdiction to its own precedents. There is no such rule in the Netherlands but it apparently prevails in the English Court of Appeal in criminal cases.20 Maybe one could understand if a court would promulgate such rule for itself (but see below § 6-8). But for the highest court to reverse a court of intermediate jurisdiction on the ground that it failed to follow its own precedent simply makes no sense. If the highest court disagrees with the new decision it should say so and reverse on that ground (it should not cite to the old appellate decision in support of that reversal because a lower court decision is obviously not binding on the highest court). If it agrees, however, it should affirm. The court would have to come from Mars to agree with the appellate court in substance and yet reverse because the appellate court failed to follow a precedent that both courts now reject. Rather it should take the opportunity to state its own view of the law21 and be grateful that the appellate court paved its path rather than complain that the appellate court beat it to the punch.