There is no Rule of Precedent in the Netherlands – nor should there be
The heart of stare decisis lies in the horizontal relationship: the binding force that precedents have on the court from which it emanated. The question presented is what a court may or must do if it finds itself disagreeing on substantive grounds with a precedent. Will it be free to hold what it believes to be correct, or must it follow the earlier decision believed to be wrong (either wrongly decided at the time or no longer correct)? Put differently: is a court bound to eternally continue a previous mistake? If one asks the question this way – and that is the core issue at this conference – the answer is not complicated: no one wants precedents to be binding. ‘[W]hen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule’s creator to destroy it’.22
At first blush it appears that there is a wide specter of opinion in Dutch legal doctrine as to the authority accorded to precedent (in the horizontal sense). The views range from ‘in principle, judges are bound’,23 ‘de facto binding effect’,24 ‘an informally restricted stare decisis principle’,25 ‘conditional binding force’,26 to no more than ‘a certain precedential effect’,27 or the view that a court is ‘in principle free to alter its policies’28 or ‘in principle not bound by its own decisions’.29 Another view is that precedents are only binding in the sense that they require the court to provide additional grounds in its opinion if it declines to follow them.30 As Professor Hondius correctly notes, the more common view in the Netherlands appears to be that precedents are at least ‘sort of binding’.31
While these views reflect differences of degree, they have two elements in common: they all seek some compromise between the binding force of precedent and judicial freedom, and none (literally: none) actually accepts precedents as truly binding. For what does it mean to claim that in the Netherlands precedents are ‘sort of binding’ (as opposed to ‘strictly binding’)? Really not that precedent are ‘sort of binding’. Rather it means that people are confused as to the meaning of ‘binding’. Binding force is not a matter of degree. A court is either bound or not bound by precedent. If there is a way out, the court is not bound. If precedent is only ‘presumptively’ binding, or ‘de facto’ (but not ‘legally’) binding, or ‘in principle’ binding, it is not binding. Arguing that a precedent is ‘binding’ in the sense that it is not binding as long as a court provides sufficient grounds for its decision not to follow it, is close to being pointless. Similarly, forcing judges to follow an earlier decision unless it was ‘wrongly decided’ or unless the judges believe it to be no longer correct has nothing to do with the rule of precedent.32
‘[S]tare decisis, if it is to mean anything in this context, obliges a court to apply a case even though it is wrong’.33
If a judge is bound depending on whether he agrees or disagrees with the precedent, the case derives its force from its substance, not from its formal status as a precedent.
Thus there can be no doubt that stare decisis, properly understood, is entirely foreign to Dutch law, and I am aware of no scholars that would propagate pure petrification of precedent, even where the earlier decision is no longer correct or desirable, or never was. The point is perfectly illustrated by former Chief Justice Martens who once commented that ‘in principle, the Hoge Raad considers itself bound by its own decisions’, to which he hastens to add: ‘but it is undeniable that it will not hesitate to overrule’ an earlier decision ‘if it is persuaded that it is incorrect and legal certainty does not justify clinging to it’.34
Stare Decisis is Theoretically Impossible
We have thus far applied two standards to measure the rule of precedent in the Netherlands: (i) the simple fact that the Supreme Court does not always follow precedent and shows no signs that it feels obliged to, and (ii) the fact that no scholar is willing to argue in its favour without distorting the meaning of stare decisis.
It also helps that the Hoge Raad has unequivocally rejected such rule.35 In Farzoo v Upjohn, it stated that ‘there is no reason at all why the Court of Appeal would be obligated to follow the Hoge Raad’s decision reversing and remanding [an appellate court’s decision] in another case’. It’s a firm rejection of stare decisis in the vertical (and a fortiori in the horizontal) sense: if the Hoge Raad does not bind the Court of Appeal it certainly does not bind itself.
As a matter of pure logic, however, the holding in Farzoo v Upjohn, cannot be conclusive: if a court holds that it is not bound by its own decisions, that decision (i.e., the decision not to be bound) cannot be considered binding authority. It does not necessarily follow that precedents are non-binding either because that would presuppose that the Court is bound by its decision that precedents are not binding.36 This leads to a fourth ground to conclude the rule of precedent does not exist in the Netherlands: it is theoretically impossible.
There are a number of theoretical issues that both Civil and Common lawyers inevitably have to face when addressing the issue of stare decisis. The question of case law as a source of law is one of them (see below § 9). There is a striking resemblance between the Common Law and the Civil Law in that the traditional view is Blackstone’s ‘declaratory’ theory: the view that judges cannot, and do not, create new law.37 In the Netherlands the view was widely accepted in the past, and in the eyes of some still is.38
The Common Law and Civil Law systems draw completely opposite conclusions from the very same theory. In the Common Law, the binding force of precedent is seen as a necessary corollary of this view. Because judges are forbidden to change the law, they must be forbidden to change precedent:
‘[I]t is my duty to say that your Lordships are bound by this decision. . . . [I]f it were not considered equally binding upon your Lordships, this House would be arrogating to itself the right of altering the law, and legislating by its own separate authority’.39
‘The most powerful argument of those who support the strict doctrine of precedent is that if it is relaxed judges will be tempted to encroach on the proper field of the legislature’.40
This Blackstonian view of stare decisis, however, is inconsistent on its face. It holds that judges cannot make law, i.e. that their decisions do not constitute law but are merely ‘evidence’ of the law found elsewhere, and yet feels compelled to ban any chance in judicial decision-making because a change of precedent would change the law. But if court decisions do not create new law why would they have the effect of changing the law when neither the overruled precedent nor the new decision constitutes the law? Any decision that fails to reflect pre-existing law is simply a mistake under the declaratory theory. If a precedent does not create law, as the declaratory theory proclaims, there is no reason why a successor court would be bound by the mistake rather than pre-existing law. ‘A judge is bound to apply the law, not another judge’s determination of it’.41
In the Netherlands, the declaratory view has been used to justify retroactive application when a court breaks with precedent.42 It has never been used to prohibit a modification of precedent. Many Civil lawyers are in fact quite surprised to find out that the declaratory view ever prevailed in England, or that it was meant to justify stare decisis. Typical Civil Law thinking has long overlooked that the view that courts do not make and cannot alter the law and that that is why courts are not free to depart from precedent is also dominant in England. Dutch scholars, for example, have traditionally reasoned that stare decisis cannot exist in a Civil Law system because treating judicial decisions as binding would be to recognize their force of law; and in codified systems, unlike in the Common Law (so goes the Civil lawyer’s understanding of the Common Law) judges do not make law.
In light of the above, the Civil Law’s ‘misunderstanding’ of the Common Law is quite understandable. Indeed, it seems to have actually understood the Common Law better than the Common Law understood itself: denying that the courts have the capacity to create new law, or that their decisions have the force of law (or that case law is a source of law) is incompatible with stare decisis. The more intuitive view would be the opposite: that novel court decisions are binding on subsequent courts precisely because such decisions docreate law; if precedents create law, they are binding as any other rule of law is.43
But this ‘constitutory theory of precedent’ is equally problematic. Again Wesley-Smith has said most of what needs to be said about this issue: ‘A court’s authority to make law must be a continuing authority, which would be denied if a court were bound by its own decisions’.44 Why recognize a court’s creative power, and then mandate that it can only be exercised once? I can think of no societal concern (that is not already addressed by the minimalist view of precedent) that requires turning a judge into his precedessor’s servant or a slave to himself.45