Does Ginsburg’s Judicial Voice Get the International Level?

Abstract

Abstract In several civil law systems of justice, the judiciary’s role traditionally gives rise to an institutional debate due to the absence of precedent as a source of formal law. The courts’ ability to operate thus depends, among other matters, upon public acceptance of their function. However, in the U.S. system, Justice Ginsburg, as a “judge’s judge,” properly sustained the role of the judiciary’s legitimacy by defining her considerations of “substitutes of consent”: deference to precedent, judicial restraint, collegiality, judicial interdependence, and procedural accountability. Among these factors, deference to precedent played a crucial role that emerged from Ginsburg’s “measured motion” of decision-making. Should her values framework thus have an impact on civil law systems of justice? To answer this question, we will examine two civil law procedure institutions, along with their jurisprudence, through the lens of Justice’s Ginsburg judicial philosophy. The results show how the traditional debate concerning these institutions must move from the institutions themselves to the judiciary’s role and its “motions”, following the path traced by Ginsburg’s judicial voice. Thus, her judicial philosophy now represents an international guideline to delineate those “substitutes of consent” and the courts’ decision-making approach to enhance the courts’ judicial legitimacy.