Informal Judicial Institutions: Invisible Determinants of Democratic Decay
Novelty of INFINITY
First-ever conceptualization and critical analysis of the core informal judicial institutions
Comparative approach, 16 cases covering “old” and “new” EU member states as well as the neighbouring countries
Experience of an interdisciplinary team, gender perspective, emphasis on post-communist Europe
Objectives of the research project
The first aim is to identify what informal judicial institutions exist in 16 studied jurisdictions. By informal judicial institutions we understand processes based on unwritten rules and narratives that are created and enforced outside officially sanctioned channels and influence the functioning of the judiciaries. They comprise a complex web of informal practices and informal narratives among judges (informal intra-judicial institutions) and between judges and other actors (informal extra-judicial institutions) acting in various formal and informal networks. Once we identify the existing informal judicial institutions, we aim to create vignette and develop a typology of informal judicial institutions. We therefore focus not only (A) on what informal judicial institutions exist in 16 jurisdictions, but also (B) on which are the most influential, (C) on how these informal institutions operate, and (D) on whom these informal institutions help and whom they exclude.
The second aim is to assess the impact of selected informal judicial institutions on the European judiciaries, including their gender aspects. We acknowledge that informal judicial institutions can have both negative and positive effects on formal institutions and the overall functioning of the judiciary. We distinguish four patterns of informal institutional interactions, (1) complementary, (2) accommodating, (3) competing, and (4) substitutive. With this consideration in mind, we aim to distinguish between harmful informal judicial institutions and informal judicial institutions strengthening the functioning of constitutional democracies and political culture. We will also analyse how informal institutions reproduce themselves and under what circumstances they change.
The third aim is to assess the impact of supranational organizations (especially the European Union and the Council of Europe and their respective bodies) on the emergence and functioning of informal judicial institutions. Both the EU and the CoE are strong promoters of democratization through institution building. However, the episodes of democratic decay and court-rigging in CEE countries question the validity of reliance on formal institution building, and the ability of both supranational organisations to prevent the deterioration of judiciaries and slide into democratic decay. The third aim of the project is therefore to analyse the impact of supranational bodies on informal judicial institutions. It analyses how supranational pressure executed by the EU and the CoE (before and after the accession of new member states) influenced the existence of informal judicial institutions.
The fourth aim is to synthetize previous findings on the dynamics of informal judicial institutions into an overarching theory on the role of informal judicial institutions in democratic decay. For a long time, literature shared a belief that the strengthening of formal institutions during transitioning processes undermines support for informal practices and reduces the size and spread of the informal sector . Democratization processes (overseen by the international community) aimed to limit the influence of informal networks and substitute them with an ever-growing body of legislation and norms upholding the rule of law. Post-communist transitioning processes hoped that independent courts overseeing these new formalised rules would disincentivize informal networks.
The first work package includes 16 individual case studies, providing general insights into all jurisdictions covered by INFINITY. We compare the workings of informal judicial institutions in new EU member states (currently facing attacks against the judiciary and emerging democratic decay), old EU member states (previously serving as an institutional example for transitioning post-communist Europe), and non-EU countries (facing serious challenges such as the corruption or politicization of the judiciary) to add further insights. We will conduct a survey among judges in 6 jurisdictions.
WP2-3 concentrate on the effects of informal political, private and judicial institutions on the judiciary. They also analyse a hitherto understudied phenomenon of interplay between informal and formal judicial institutions. Therefore, they ask the questions: How informal institutions affect the judiciary? How they operate and with what consequences? How they interact with formal judicial institutions?
WP2 focuses on informal institutions inside the judiciary. WP3 on the other hand analyses informal judicial institutions outside the judiciary and informal institutions between judges and other actors.
The challenge of WP4 is two-fold. The first challenge is to understand how gendered are existing informal judicial institutions, which of them contribute to horizontal and vertical gender segregation within the judiciary and how they operate, and also the different rationales behind the gender imbalance on the bench. The second challenge is to explore the interplay between gender representation on the bench and the position of women in the judicial hierarchy on the one hand, and the effect of the actual functioning of the judiciaries on democratic decay on the other.
The challenge of WP5 is two-fold. The first challenge is to gain a comprehensive understanding of how supranational pressure on domestic judicial reforms has influenced the existence and role of informal judicial institutions. The second challenge is to find out what role these informal institutions play in the democratic decay sweeping through EU and CoE member states, and to what extent both organisations are able effectively to
sanction and prevent further democratic decay in the region.
WP5 offers a completely novel take on the effects of supranational influence on domestic institution building and, in turn, allows us to understand better the abilities of both the EU and CoE to counteract the democratic decay of their member states. It poses the following questions: What is the impact of the EU and CoE on the eradication, formation and functioning of informal judicial institutions? How they interact with formal judicial institutions built due to supranational pressure?
The challenge of WP6 is to acquire novel theoretical and conceptual insights into informal institutions affecting the judiciary and changes in them as well as their implications for democratic decay. To tackle this challenge, we need to bring a new conceptualization of informal institutions and integrate empirical findings from WPs1-5. WP6 thus addresses Aim 4 of the project, which is INFINITY’s ultimate goal. This goal is to develop a novel theory of informal judicial institutions and their role in democratic decay. In particular, we will inquire whether informal judicial institutions may become the right response to the recent populist challenge, especially in CEE.