Abstract Within the last decades, the reorganisation of the Armed Force left many voids in the territories. Being located in highly lucrative and desirable locations, former military sites can be redeveloped into either profit-driven spaces or proper urban commons. This paper focuses the attention on the Italian case and scrutinises former military barracks in the dichotomies between the generation of profit-driven spaces and urban commons. Also, the analysis questions the actual role of these voids in guaranteeing the right to the city, especially in times of severe shortage of public resources to undertake urban regeneration processes.
{"title":"Regenerating Former Military Sites in Italy. The Dichotomy between ‘Profit-Driven Spaces’ and ‘Urban Commons’","authors":"F. Camerin","doi":"10.1515/gj-2021-0075","DOIUrl":"https://doi.org/10.1515/gj-2021-0075","url":null,"abstract":"Abstract Within the last decades, the reorganisation of the Armed Force left many voids in the territories. Being located in highly lucrative and desirable locations, former military sites can be redeveloped into either profit-driven spaces or proper urban commons. This paper focuses the attention on the Italian case and scrutinises former military barracks in the dichotomies between the generation of profit-driven spaces and urban commons. Also, the analysis questions the actual role of these voids in guaranteeing the right to the city, especially in times of severe shortage of public resources to undertake urban regeneration processes.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"497 - 523"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43016558","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The article deals with the current debate about COVID-19 Vaccines as global public/common goods. After a brief introduction on the global epidemiological and economic implication of the pandemic, the problem of the correct characterization of either vaccine or immunization/herd immunity as global public/common good, according to the necessary characteristics outlined by the pertinent economic theories, is addressed. The conclusion is that the term “global public good”/global common goods” has been extensively used in the last two years by policy makers, political leaders, academics, economists, international organizations, NGOs and others health groups, in a sort of “loose way”. Substantially, in order to underscore that equitable access to health products, including vaccines, health and biomedical technologies, medical services, medical devises, whose availability, accessibility, acceptability, affordability to the world is fundamental to tackling the pandemic. The current legal proprietary regime applied to vaccines, extensively covered by IPRs, has transformed an intrinsically non-excludable common/public good (the vaccines, due to their nature and characteristics) in something excludable and rival in consumption. Consequently, the article argues that what is needed is a swift in their legal governance. The current legal discipline of vaccines and health technologies must be changed to bring it into line with the non-excludable nature of these goods. The richest countries in the world, in pursuit of their “vaccine nationalisms”, have already collectively preordered 8.8 billion doses of vaccine, far in excess of need, thus obliging billions of people in the Global South to wait years to be vaccinated. In this respect, the article investigates the EU vaccines strategy and analyzes the Advanced Purchase Agreements signed by the European Commission with the major vaccine producers, enlightening the untenable secrecy and opacity with which the European Union’s executive has handled COVID-19 vaccine supply contracts, and how it has simply paid no more than lip-service to the concept of global common/public good by attributing a broad “private governance” to the pharmaceutical companies. Then, the various arguments, for and against, the Waiver Proposal to several sections of the WTO TRIPS agreement, introduced by India and South Africa on the TRIPS Council on October 2020, have been briefly summarized, accounting the current luck of needed consensus among the various members of the WTO. The article however describes an important number of new global and collaborative efforts already put in place by a myriad public and private actors to allow efficient development and production of vaccines in order to enhance a global access to vaccines. The article concludes by stressing the major developments in the U.S. patent’s landscape and in the Biden Administration’s attitude towards the current global health crisis, that leave hope for “extraordinar
{"title":"COVID-19 Vaccines as Global Common Goods: An Integrated Approach of Ethical, Economic Policy and Intellectual Property Management","authors":"N. Boschiero","doi":"10.1515/gj-2021-0042","DOIUrl":"https://doi.org/10.1515/gj-2021-0042","url":null,"abstract":"Abstract The article deals with the current debate about COVID-19 Vaccines as global public/common goods. After a brief introduction on the global epidemiological and economic implication of the pandemic, the problem of the correct characterization of either vaccine or immunization/herd immunity as global public/common good, according to the necessary characteristics outlined by the pertinent economic theories, is addressed. The conclusion is that the term “global public good”/global common goods” has been extensively used in the last two years by policy makers, political leaders, academics, economists, international organizations, NGOs and others health groups, in a sort of “loose way”. Substantially, in order to underscore that equitable access to health products, including vaccines, health and biomedical technologies, medical services, medical devises, whose availability, accessibility, acceptability, affordability to the world is fundamental to tackling the pandemic. The current legal proprietary regime applied to vaccines, extensively covered by IPRs, has transformed an intrinsically non-excludable common/public good (the vaccines, due to their nature and characteristics) in something excludable and rival in consumption. Consequently, the article argues that what is needed is a swift in their legal governance. The current legal discipline of vaccines and health technologies must be changed to bring it into line with the non-excludable nature of these goods. The richest countries in the world, in pursuit of their “vaccine nationalisms”, have already collectively preordered 8.8 billion doses of vaccine, far in excess of need, thus obliging billions of people in the Global South to wait years to be vaccinated. In this respect, the article investigates the EU vaccines strategy and analyzes the Advanced Purchase Agreements signed by the European Commission with the major vaccine producers, enlightening the untenable secrecy and opacity with which the European Union’s executive has handled COVID-19 vaccine supply contracts, and how it has simply paid no more than lip-service to the concept of global common/public good by attributing a broad “private governance” to the pharmaceutical companies. Then, the various arguments, for and against, the Waiver Proposal to several sections of the WTO TRIPS agreement, introduced by India and South Africa on the TRIPS Council on October 2020, have been briefly summarized, accounting the current luck of needed consensus among the various members of the WTO. The article however describes an important number of new global and collaborative efforts already put in place by a myriad public and private actors to allow efficient development and production of vaccines in order to enhance a global access to vaccines. The article concludes by stressing the major developments in the U.S. patent’s landscape and in the Biden Administration’s attitude towards the current global health crisis, that leave hope for “extraordinar","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"177 - 230"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48447572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Nowadays, a small part of the worldwide population, under the aegis of property on some commons, can find a way to increase their riches, intensifying the conflicts inside the society and damaging the environment. This is the “dark side” of globalization: through this phenomenon, humans economically and socially united most of our planet, simultaneously emphasizing the fragmentation that lies under this apparent unification. This conflict, however, is not between law and society, but it is inside the latter, where the only possible way to bridge the gap seems – mostly – to be through philanthropy. This work wants to find a possible enlightenment through the study of the regulation of the roman’s lands (ager publicus), which were granted under a payment: thus, they were subjected to revocation. This rule was strengthened for the most fruitful lands through the recognition of a supervisory power in the hands of the censors, census officers and controllers of the citizen’s morality, whose decadence was sanctioned with the loss of the right to vote. It was them who could decide to whom give these lands in lease through a public auction, never considering – through a direct sanction as revocation – the ethics of the winners, thus allowing to increase their assets and consequentially the social instability.
{"title":"Censors and Public Lands: The Failure of Governance of a Common?","authors":"Davide Bresolin Zoppelli","doi":"10.1515/gj-2021-0078","DOIUrl":"https://doi.org/10.1515/gj-2021-0078","url":null,"abstract":"Abstract Nowadays, a small part of the worldwide population, under the aegis of property on some commons, can find a way to increase their riches, intensifying the conflicts inside the society and damaging the environment. This is the “dark side” of globalization: through this phenomenon, humans economically and socially united most of our planet, simultaneously emphasizing the fragmentation that lies under this apparent unification. This conflict, however, is not between law and society, but it is inside the latter, where the only possible way to bridge the gap seems – mostly – to be through philanthropy. This work wants to find a possible enlightenment through the study of the regulation of the roman’s lands (ager publicus), which were granted under a payment: thus, they were subjected to revocation. This rule was strengthened for the most fruitful lands through the recognition of a supervisory power in the hands of the censors, census officers and controllers of the citizen’s morality, whose decadence was sanctioned with the loss of the right to vote. It was them who could decide to whom give these lands in lease through a public auction, never considering – through a direct sanction as revocation – the ethics of the winners, thus allowing to increase their assets and consequentially the social instability.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"525 - 536"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44211508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The report seeks to outline the issues the lecturers of the International Conference Held at the University of Turin on the 21st and 22nd June 2021 touched upon. The backbone of the Conference was the rise of Urban Commons describing all the different aspects it involves: the urban voids suitable to host urban commons, the participatory models shaping the governance of commoning, the consequences such phenomenon may imply, and the technological and legal infrastructure may flank and support the development of urban commoning. All this explored by referring to concrete case studies and day-to-day experiences.
{"title":"International Conference of Urban Commons","authors":"Mattia Elia","doi":"10.1515/gj-2021-0083","DOIUrl":"https://doi.org/10.1515/gj-2021-0083","url":null,"abstract":"Abstract The report seeks to outline the issues the lecturers of the International Conference Held at the University of Turin on the 21st and 22nd June 2021 touched upon. The backbone of the Conference was the rise of Urban Commons describing all the different aspects it involves: the urban voids suitable to host urban commons, the participatory models shaping the governance of commoning, the consequences such phenomenon may imply, and the technological and legal infrastructure may flank and support the development of urban commoning. All this explored by referring to concrete case studies and day-to-day experiences.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"483 - 496"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45450860","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The article relies on the social and legal perspective not only to better understand how norms are created and change through interactions among agents, but also to shed light on how norms are internalized in social practice. The article is organized as follows. Initially the article explores the basic assumption that deontic operators acquire their meaning via social conventions generating “personal rules” having a “mental content” which belongs to a wider “normative mind”, a mind that obviously encompasses all sorts of choices. The article then describes the different types of personal rules, distinguishing social, moral, and legal rules across the normative mind, focusing on social rules within institutions, conceived as sets of rules in equilibrium. The core of this study puts to the test the taxonomy of personal (social, moral, and legal) rules within the normative mind by exploring a situation of “dense normativity” addressed by a 2021 Lancet paper concerning findings about “tight–loose cultures” during the Covid-19 crisis, and, for the sake of explanation, focuses on one of the main normative constraints that epitomizes the challenge of the Covid-19 crisis to “tight–loose” cultures: the “wear-mask rule”. These observations can be extended to other normative constraints of that crisis, but in essence they parse the interplay between the different types of personal rules, which not only are social, but also moral and legal, drawing conclusions that complement the findings of the Lancet paper with some critical observations. The article critically concludes with remarks about the co-existence of different normative systems of personal rules in a context of biopolitics and suggests that individual morality appears to be the core of normativity to address collective threats such as those caused by the Covid-19 crisis.
{"title":"Social, Moral and Legal Rules, Biopolitics and the Covid-19 Crisis","authors":"C. Garbarino","doi":"10.1515/gj-2021-0060","DOIUrl":"https://doi.org/10.1515/gj-2021-0060","url":null,"abstract":"Abstract The article relies on the social and legal perspective not only to better understand how norms are created and change through interactions among agents, but also to shed light on how norms are internalized in social practice. The article is organized as follows. Initially the article explores the basic assumption that deontic operators acquire their meaning via social conventions generating “personal rules” having a “mental content” which belongs to a wider “normative mind”, a mind that obviously encompasses all sorts of choices. The article then describes the different types of personal rules, distinguishing social, moral, and legal rules across the normative mind, focusing on social rules within institutions, conceived as sets of rules in equilibrium. The core of this study puts to the test the taxonomy of personal (social, moral, and legal) rules within the normative mind by exploring a situation of “dense normativity” addressed by a 2021 Lancet paper concerning findings about “tight–loose cultures” during the Covid-19 crisis, and, for the sake of explanation, focuses on one of the main normative constraints that epitomizes the challenge of the Covid-19 crisis to “tight–loose” cultures: the “wear-mask rule”. These observations can be extended to other normative constraints of that crisis, but in essence they parse the interplay between the different types of personal rules, which not only are social, but also moral and legal, drawing conclusions that complement the findings of the Lancet paper with some critical observations. The article critically concludes with remarks about the co-existence of different normative systems of personal rules in a context of biopolitics and suggests that individual morality appears to be the core of normativity to address collective threats such as those caused by the Covid-19 crisis.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"231 - 260"},"PeriodicalIF":0.0,"publicationDate":"2021-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47276898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Juan Emmanuel Delva Benavides, Francisco Ernesto Torres Amaya
Abstract This study analyzes the legal implications of the operations with cryptocurrencies in Mexico, which are offered by financial technology institutions. Even though there is a Fintech Law, the regulation is not clear, and laws are lacking. This scenario is a consequence of categorizing the cryptocurrencies as digital assets but omitting in other laws like the Tax, Civil or Commercial Code. The conclusion assembles the possibility of extending and providing greater certainty to cryptocurrencies within the Mexican legislation by harmonizing the laws.
{"title":"Legal, Tax and Accounting Treatment of Cryptocurrencies in Mexico","authors":"Juan Emmanuel Delva Benavides, Francisco Ernesto Torres Amaya","doi":"10.1515/gj-2021-0061","DOIUrl":"https://doi.org/10.1515/gj-2021-0061","url":null,"abstract":"Abstract This study analyzes the legal implications of the operations with cryptocurrencies in Mexico, which are offered by financial technology institutions. Even though there is a Fintech Law, the regulation is not clear, and laws are lacking. This scenario is a consequence of categorizing the cryptocurrencies as digital assets but omitting in other laws like the Tax, Civil or Commercial Code. The conclusion assembles the possibility of extending and providing greater certainty to cryptocurrencies within the Mexican legislation by harmonizing the laws.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"261 - 280"},"PeriodicalIF":0.0,"publicationDate":"2021-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45753235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Chinese economic development has been driven, among other factors, by the gradual expansion of the private economy and the establishment of Chinese-based multinational corporations recognized as “champions” of the Chinese economy. At the same time, the Chinese Communist Party strives to maintain proper coordination mechanisms over the Chinese private economy, in order to ensure the harmonization between private and public interests. Does such policy direction, pursued by the Chinese leadership, rely on legal mechanisms? Does the Chinese Communist Party have legal instruments at its disposal in order to carry out coordinative functions concerning the private economy? The issue, although acknowledged by several scholars, has been rarely the object of a comprehensive legal analysis, taking into account the interactions between the different legal formants of the Chinese system. The purpose of this paper is to sketch an outline of the main legal mechanisms empowering the Chinese Communist Party to supervise and coordinate the activity of private economic operators. Starting from the assessment of some recent developments, embodied in «Opinions on Strengthening the United Front Work in the Private Economy in the New Era» issued in September 2020, the analysis will try to identify some of the most relevant legal provisions aimed at ensuring Party supervision over the private economy, in particular Art. 19 of the Company Law. Such provisions will be analyzed not only within the context of the recent developments of Chinese economic law, but also with regard to its practical applications by courts, in order to define the scope, in concrete, of Party activities in the private economy. The information gathered and analyzed will then be taken as conceptual basis to draw some conclusions regarding the structural role of the Chinese Communist Party in the development of Chinese commercial and economic law.
{"title":"The Legal Dimension of the Relation Between the Chinese Communist Party and the Private Economy. A Perspective of the Article 19 of the Company Law","authors":"G. Sabatino","doi":"10.1515/gj-2021-0032","DOIUrl":"https://doi.org/10.1515/gj-2021-0032","url":null,"abstract":"Abstract Chinese economic development has been driven, among other factors, by the gradual expansion of the private economy and the establishment of Chinese-based multinational corporations recognized as “champions” of the Chinese economy. At the same time, the Chinese Communist Party strives to maintain proper coordination mechanisms over the Chinese private economy, in order to ensure the harmonization between private and public interests. Does such policy direction, pursued by the Chinese leadership, rely on legal mechanisms? Does the Chinese Communist Party have legal instruments at its disposal in order to carry out coordinative functions concerning the private economy? The issue, although acknowledged by several scholars, has been rarely the object of a comprehensive legal analysis, taking into account the interactions between the different legal formants of the Chinese system. The purpose of this paper is to sketch an outline of the main legal mechanisms empowering the Chinese Communist Party to supervise and coordinate the activity of private economic operators. Starting from the assessment of some recent developments, embodied in «Opinions on Strengthening the United Front Work in the Private Economy in the New Era» issued in September 2020, the analysis will try to identify some of the most relevant legal provisions aimed at ensuring Party supervision over the private economy, in particular Art. 19 of the Company Law. Such provisions will be analyzed not only within the context of the recent developments of Chinese economic law, but also with regard to its practical applications by courts, in order to define the scope, in concrete, of Party activities in the private economy. The information gathered and analyzed will then be taken as conceptual basis to draw some conclusions regarding the structural role of the Chinese Communist Party in the development of Chinese commercial and economic law.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"351 - 373"},"PeriodicalIF":0.0,"publicationDate":"2021-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42187642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Crimes such as terrorism pose some of the biggest postmodern challenges faced by criminal justice systems worldwide. How systems react and prevent such crime raises numerous legal, political and strategic issues i.e. cross-jurisdictional collaboration, policing and the erosion of civil liberties such as privacy. In this article, taking inspiration from criminological theory, two criminal justice challenges that are posed by terrorism are explored from the United Kingdom’s perspective: the international definition of terrorism including the factors that impede a common definition from being established and the domestic response to define, prevent and prosecute this crime. The aim of, and originality in, this article is to explore the criminal justice challenge facing the United Kingdom in balancing complex and competing interests when effectively responding to terror crime.
{"title":"The Panoply of Challenges Facing International Criminal Justice: The United Kingdom’s Response to Defining and Responding to Terrorism","authors":"C. Singh","doi":"10.1515/gj-2021-0036","DOIUrl":"https://doi.org/10.1515/gj-2021-0036","url":null,"abstract":"Abstract Crimes such as terrorism pose some of the biggest postmodern challenges faced by criminal justice systems worldwide. How systems react and prevent such crime raises numerous legal, political and strategic issues i.e. cross-jurisdictional collaboration, policing and the erosion of civil liberties such as privacy. In this article, taking inspiration from criminological theory, two criminal justice challenges that are posed by terrorism are explored from the United Kingdom’s perspective: the international definition of terrorism including the factors that impede a common definition from being established and the domestic response to define, prevent and prosecute this crime. The aim of, and originality in, this article is to explore the criminal justice challenge facing the United Kingdom in balancing complex and competing interests when effectively responding to terror crime.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"307 - 349"},"PeriodicalIF":0.0,"publicationDate":"2021-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2021-0036","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42141800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Does Ginsburg’s Judicial Voice Get the International Level?","authors":"C. Cavallini, S. Cirillo","doi":"10.1515/gj-2021-0030","DOIUrl":"https://doi.org/10.1515/gj-2021-0030","url":null,"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.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"107 - 135"},"PeriodicalIF":0.0,"publicationDate":"2021-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2021-0030","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44402560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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