Informal Judicial Institutions: Invisible Determinants of Democratic Decay

Mainstream literature on courts focuses on formal rules.

Yet informal judicial institutions, ranging from bureaucratic norms to clientelism, often shape judicial performance strongly. These institutions may even facilitate democratic decay.

For example, various “gentlemen’s pacts” between judicial associations may substitute formal rules governing selection of judges, entrenching patronage and vertical gender segregation. Politically savvy chief justice can tweak the formal rules and forge alliances with politicians. Other informal judicial institutions may counteract democratic decay.

For instance, judges may team up with journalists and mobilize the public to defend the judiciary. Recent literature has acknowledged these phenomena.

However, the range of informal intra-judicial and extra-judicial institutions and their effects are not yet fully understood, as the traditional doctrinal and normative scholarship is not able to capture them.

INFINITY fills this gap and addresses the implications of this phenomenon for the “new” and “old” EU member states, and the neighbouring countries.

The central research question of INFINITY is: How do informal judicial institutions affect functioning of the judiciary and under what circumstances they counteract or contribute to democratic decay? INFINITY builds on a comparative legal perspective combined with sociological and political science approaches.

It consists of 4 interrelated research aims: The first aim is to identify the most important informal judicial institutions in 16 European jurisdictions.

The second aim is to assess their impact, positive or negative, on the domestic judiciaries, including their gender aspects. The third aim is to analyse supranational influence of EU and CoE on informal judicial institutions.

The fourth overarching 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.