What about the principle that the law should apply equally to all? The principle finds strong support in the Netherlands. It is laid down in Article 1 of the Constitution, permeates all areas of the law, and has been invoked to support minimalist precedent.46 Is it not a principle of law so fundamental that it requires us to acknowledge a much stronger rule of precedent? Does it not require that like cases be treated alike?
Sure it does, but that begs the question when cases are alike. Clearly, it matters whether there has been a change in the law. If that were not a valid reason for different treatment no change in the law – whether by overruling precedent or by legislative enactment – could ever be effective. If all cases had to be treated alike at all costs Europeans would still be governed by tribal law. At most, treating like cases alike could require that the new decision not be applied retroactively to the case at hand or to cases from the same era. But it is in itself insufficient ground to extend outdated law even further into the future.
There is another reason why treating like cases alike is problematic as a justification for making precedents binding. It is of course a truism that cases are never identical because the facts are never truly the same. The point here goes beyond this truism, which would be of little relevance if all we were interested in is the broadly worded general proposition of law – sufficiently broad to reach a variety of facts, the details of which one need not be concerned with. But under standard theory of precedent we are not. Under standard theory only the ratio decidendiis binding, not those statements of the law that are merely obiter dictum. The ratio decidendi (or ‘holding’ as it is referred to in the U.S.) is the ‘principle of the case’, the legal principle upon which the case was decided (upon which the outcome of case rests). An obiter dictum (or ‘dictum’ in American parlance) is a statement of law in the opinion which could not logically be a major premise of the selected facts of the decision, and was therefore not determinative of the outcome.
As an initial matter, I should mention that there is such a thing as obiter dictum (overweging ten overvloede) in Dutch law. But labelling a portion of the Court’s opinion as such has no significance; it says no more than that the point is not strictly necessary to support the outcome of the case, and no legal consequences are attached to categorizing a statement one way or another. Indeed, if anything, one might consider an obiter dictum of more value than any other portion of a Dutch Court’s opinion. In the Netherlands, the judges on the panel that hears a case do not write individual opinions. The opinion of the collective court is largely devoid of redundant language, more formal in style, and considerably shorter than opinions usually are in the Common Law. If the Court adds an obiter dictum there is all the more, not less, reason to believe it is trying to say something of particular importance.
From a principled perspective, one may wonder why anyone would even care about the ratio-dictum distinction. If an obiter dictumstates the law, it states the law. Why would it matter that the statement was not indispensable to come to the conclusion the Court reached? While there is some truth to the view that a court’s statement of the law should be authoritative even if it did not function as a necessary premise of the outcome in a case, the distinction is nevertheless important. As many have observed (in England, for example, Goodhart), the true meaning of an earlier decision does not lie in the general proposition of law, which was likely pronounced in a case where all its consequences and its potential reach could not be foreseen; instead, it lies in the particularized rule of the case, embedded in the rich factual context of that case, which shows why the pronounced rule is fitting and what that general statement means in a concrete situation.47 An obiter dictum is not tied to particular facts of the case and therefore not as useful in understanding particularized rules.
If anything turns on the ratio-dictum distinction, it becomes a problem that there is not necessarily one right answer to the question precisely what ‘the’ principle of a particular case is. It may well require a determination by the very court that also decides whether or not it wants to be ‘bound’ by ‘the’ principle of an earlier case or would rather prefer to go a different direction. It can be hard to find ‘the distinction between the ratio decidendi, the court’s own version of the rule of the case, and the true rule of the case, to wit, what it will be made to stand for by another later court’.48
Identifying the precise facts which in a given case were determinative for the outcome not only separates the ratio decidendi from obiter dictum but may also enable a subsequent court to distinguish the matter before it from the ‘crucial’ facts upon which the earlier case was decided. By the same token, extending the particularized rule of the case to a different set of facts implies that those facts of the earlier case that were different are being considered not to be part of the ratio decidendi. Thus ‘[i]t is by his choice of material facts that the judge creates law’.49
While Goodhart’s theory may not be generally accepted in the Common Law and appears to miss application altogether in a jurisdiction like the Netherlands, where the ratio-dictum distinction plays virtually no role, it still represents a highly valuable insight in the process of adjudication. The view is in many ways very close to what is now commonplace among European legal methodologists inspired by legal hermeneutics, topica, ‘problem-thinking’, and the like, each of whom focuses on contextualized, fact-specific, fact-dependent, particularized legal norms. Nowadays, these views (or variations of them) find wide acceptance among scholars in the Netherlands,50 which is why the binding force of precedent becomes hard to accept if its rationale is that like cases must be treated alike. If the particularized rule of the case is what is binding, the facts of the case – not some general proposition of law – are determinative. Once that is accepted, the observation that facts are never the same cannot be dismissed as sophistry, and few such particularized, context-specific rules will actually lend themselves to repeated application.