Years of research and a dedicated workshop in Prague in the Autumn of 2022 have culminated in the publication of a Special Issue of the German Law Journal. The Special Issue concludes the first INFINITY work package. It advances research on the often overlooked role of informality in courts and judicial administration through 19 articles on over 360 pages – including the introduction, 13 case studies and five topical articles.
The introduction by Kosař, Šipulová & Urbániková explains the rationale of the project: while courts don’t come immediately to mind when one thinks of ‘informality’, there is often more than meets the eye. Informal institutions often account for the difference between the performance of courts on paper and in reality. In fact, informal institutions, practices and acts, while ubiquitous, are not always easy to spot. Judiciaries can be affected by informal institutions that involve many actors, sometimes without judicial participation (external informal institutions). In more cases, informal institutions work between judges (internal) or judges and third parties (mixed).
The first part details how informal institutions are created and how they affect the courts. Leloup explains that in Belgium, informality is corrected and quickly formalised wherever it appears. In the Czech Republic, informal institutions have helped to create ‘superjudges’, individuals in robes – not capes – who have amassed much power (Kadlec & Blisa). ‘Talks, Dinners, and Envelopes at Nightfall’ sounds like the title of a thriller but adroitly describes problematic informal practices at the German Federal Constitutional Court (Steininger). In Ireland, we learn from O’Brien how soft standards of supranational and international organisations have driven the transition from informal systems of judicial governance in the areas of judicial conduct and appointments. Ireland has decidedly moved towards the continent in this regard. In Spain, as Iglesias & Bustos Gisbert explain, nearly every candidate wishing to have a career in the judiciary hires a coach – usually a sitting judge – to prepare for the challenging entrance examination. The problem is that they are nearly always paid in black money, creating a system where prospective judges and prosecutors witness corruption at the first point of contact with the legal system. If any judicial system can be equated with informality, it is Britain’s. Yet neither the channel nor Brexit could stop the pressure to formalise the informal in past decades. Nevertheless, the system has kept a distinctively British flavour rooted in centuries of conventions (Turenne).
