This year, the NJ (Nederlandse Jurisprudentie, ‘Dutch Law reports’) celebrates its 100th anniversary. In January 1913 the first issue of NJ containing decisions of the Dutch Supreme Court (Hoge Raad) and other courts was published by Tjeenk Willink. The NJ soon became the leading Law report for both private law and criminal law.
Last May, the anniversary of the NJ was celebrated during a ceremony at the Peace Palace in The Hague. Various scholars and practicing lawyers paid homage to the importance of publishing judicial decisions. All the valedictorians seemed to agree on the importance for the public at large that judicial decisions are properly published.
Why is it so important to publish judicial decisions? The president of the Dutch Supreme Court, Mr. Corstens, offered the familiar argument: publication of judicial decisions leads to legal certainty. From published judicial decisions, those subject to the law can know what the law is and how it operates in practice, and so it is important that there is adequate access to judicial decisions. Access to the law itself can be achieved by publishing judicial decisions. The underlying assumption of this argument is of course that judicial decisions are a source of law.
From an historical point of view however, neither the publication of judicial decisions, nor the idea that judicial decisions are a source of law, has been very common on the European continent. On the contrary, for a very long time judicial decisions were not usually published; mainly due to the fact that judicial decisions were not considered to be a source of law. An influential constitution of emperor Justinian even forbids judges to use judicial decisions as a source of law. In C. 7.45.13 Justinian explicitly states that judges have to base their decisions on statutory law and not on precedents (non exemplis, sed legibus iudicandum est). Since the reception of this constitution, the civil law tradition has generally been very reluctant to use precedents as a basis for decisions. As a consequence the publication of judicial decisions was also not very common.
It is clear that there is a strong relationship between the idea that judicial decisions are a source of law and the publication of judicial decisions. But how exactly does this work? Usually it is thought that once you accept that judicial decisions are an important source of law, it immediately becomes relevant to make judicial decisions accessible by way of publication. However, it is also possible that the mechanism works in the opposite way: publication of judicial decisions leads to judicial decisions being a source of law. According to prof. Jansen and prof. Zwalve, this is – more or less – what happened in the Netherlands when the NJ started to publish judicial decisions. More on this in their interesting book on this subject: Publiciteit van jurisprudentie (Kluwer: Deventer 2013).