I. Formal and Informal Institutions

Institutions can be defined as the sum of the rules of the game and of the ways in which those rules are acted upon and played out.Footnote ²⁶ They comprise “regulative, normative, and cultural-cognitive elements that, together with associated activities and resources, provide stability and meaning to social life”Footnote ²⁷ and consist of “both informal constraints (sanctions, taboos, customs, traditions, codes of conduct) and formal rules (constitutions, laws, property rights)”.Footnote ²⁸ Institutions are relatively durable and resistant to change, but can undergo change over time, incrementally or revolutionary.Footnote ²⁹ They help shape behavior in society and provide stability and order not the least because the rules are backed with sanctioning power (formal or informal).

Before we start discussing the relationship between formal and informal institutions, we need to add one conceptual caveat. In order to avoid conflation of informal institutions with mere routinized behavior or even one-off instances of informal behavior, we must differentiate between informal acts, informal practices, and informal institutions. Practice is “a routinized type of behavior”Footnote ³⁰ and “a pattern which can be filled out by a multitude of single and often unique actions reproducing the practice.”Footnote ³¹ Acts can be one-off—single acts—, but they can also become routinized over time into a practice, and practice can become institutionalized over time and become an institution. In other words, not every informality meets the threshold informal institution and despite the fine line between the informal practice and the informal institution, only institutionalized practice amounts to institution. We explain this triadic conceptualization of informality in more detail in Section C.I.

It can often be difficult to determine whether an institution is formal or informal because (in)formality is not a question of a clear dichotomy, but rather a continuum. For a more comprehensive and detailed delineation of informal institutions, based on a literature review, we identified a set of various more or less common characteristics of informal institutions. Yet, these characteristics should not be considered as strictly necessary conditions in order to define an institution as informal. They relate to three areas: The nature of the rules on which the institution is based; the designers of the rules and the circumstances of their emergence; and the enforcement of the rules and the sanctions for breaking them.

First, formal and informal institutions differ in the nature and the form of the rules on which they are based. In both cases, these rules prescribe some kind of action (or omission). But in informal institutions, they are often not clearly specified,Footnote ³² not written,Footnote ³³ or not formally codified in official documents.Footnote ³⁴ They are usually unwrittenFootnote ³⁵ and are not published or made publicly available.Footnote ³⁶ In addition, the informal rules can have a customary element,Footnote ³⁷ they are socially shared,Footnote ³⁸ and although they may be non-transparent for outsiders, they are well-known to the relevant actors and are part of their common knowledge.Footnote ³⁹

Second, formal and informal institutions differ in how they emerge. Informal institutions, unlike the formal ones, are not always consciously designed.Footnote ⁴⁰ They often emerge spontaneously and in the private realm,Footnote ⁴¹ and their origin is often unknown.Footnote ⁴² Informal institutions are “created and communicated outside of officially sanctioned channels,”Footnote ⁴³ they are not centrally designed,Footnote ⁴⁴ are not a part of an officially mandated and enforced legal system,Footnote ⁴⁵ and do not receive legitimacy from the state and from the sovereignty of the people.Footnote ⁴⁶

Third, formal and informal institutions differ in the enforcement of the rules and sanctions for their violation. They both entail sanction if they are violated or grossly ignored, but informal institutions are enforced outside of officially sanctioned channelsFootnote ⁴⁷ and their violation does not have legal consequences.Footnote ⁴⁸ Their enforcement is typically privateFootnote ⁴⁹ and imposed by the actors themselves,Footnote ⁵⁰ even though they may be unwilling to admit it.Footnote ⁵¹

As useful as it is to positively define informal institutions, it is valuable to also define what they are not. As noted by Helmke and Levitsky,Footnote ⁵² the concept of informal institutions is often treated as a residual category and is used to “describe virtually any behavior that departs from, or is not accounted for by, the written-down rules.” Our understanding of informal institutions does not cover any behavioral regularities, non-formally codified patterns of behavior, fashions, or trends. On the contrary, in our definition, informal institutions are based on rules and are rooted in shared expectations.Footnote ⁵³ Also, informal institutions are not synonymous with culture or cultural patterns—culture is a broader concept, values play a bigger role here, and it lacks sanctioning mechanisms. They do not refer to weak institutions, customs, or informal politics, which can have a spontaneous or erratic character, or informal organizations—as these are the “players” and not the “rules”.Footnote ⁵⁴

II. Pervasiveness of Informality at Courts

It has mainly been political science literature that has paid significant attention to informal institutions and their effects,Footnote ⁵⁵ since it sees institution-building as a complex process, consisting of recursively related formal and informal elements.Footnote ⁵⁶ Political science scholarship acknowledges that any change in formal institutions at any particular time may give rise to informal institutions, which, in turn, affect the functioning of formal institutions.Footnote ⁵⁷ O'DonnellFootnote ⁵⁸ defines the dominance of informal institutions as “the unrule of law,” while Lauth claims that inherited informal institutions such as nepotism, kinship, or clientelism survive at the expense of formal ones by occupying or penetrating them.Footnote ⁵⁹

The disregard that law and legal science in continental Europe showed towards informal institutions also means that we have a rather weak understanding of where exactly in the field of functioning of courts these informal judicial institutions are placed. This Special Issue offers a clear-cut answer: Everywhere. IJI are so important because they impact virtually every segment of the judiciary, both in how courts are governed, how they decide, and in how judges behave extra-judicially. This Special Issue attests to this complexity.

III. Arenas in which Informal Judicial Institutions Operate—Internal, Mixed and External Judicial Judicial Institutions

In the previous subsection, we showed that IJI permeate various dimensions of judicial decision-making and judicial governance. IJI are almost everywhere. But they are often also difficult to spot. They are less visible than formal rules. Importantly, they not only emerge within the judiciary, but also involve other actors. Sometimes, IJI that affect courts do not involve judges at all. In order to get a complete picture, we need to carefully examine arenas where these IJI are created.

We show that IJI can operate in three different arenas. Legal scholars distinguish between judicial and extra-judicial activities, often referring to the former as on-the-bench activities while the latter are referred to as off-the-bench activities. Recent political science scholarship exploring informality in the functioning of courts has adopted a different vocabulary: the on-bench, between-bench, and off-bench arenas, depending on whether judges act in their decision-making capacity— on-the-bench when acting within a single court and between-bench when interacting among different courts—or whether they engage in extra-judicial activities—off-the-bench.Footnote ¹⁰⁰

None of these taxonomies fully fits our analysis, because we are also interested in informal institutions that affect the judiciary but do not involve judges at all. A typical example would be an informal agreement between all major political parties regarding the selection of judges. Such an informal agreement is neither an on-bench, nor between-bench, or off-bench activity in the sense discussed above. For this reason, we propose a slight adjustment of this logic. In other words, we are broadening our arenas beyond those exclusively staffed by judges and acknowledge that informal judicial institutions may emerge also between politicians, business actors, and civil society. Based on that insight, we differentiate between internal, mixed, and external IJI.

Internal judicial institutions appear inside the courts and influence both the structure of judicial governance and the quality of judicial decision-making. Typical examples of internal judicial informal institutions are correnti meetings in Italy,Footnote ¹⁰¹ the informal college of regional court presidents in Czechia,Footnote ¹⁰² meetings of the Jurisconsult with the ECtHR’s section president on diverging case law,Footnote ¹⁰³ and the annual meetings between CJEU and ECtHR judges.Footnote ¹⁰⁴ At the same time, informal internal judicial institutions also emerge within judicial associations,Footnote ¹⁰⁵ within grand chambers,Footnote ¹⁰⁶ and among chief justices.Footnote ¹⁰⁷ Regarding judicial governance, informal internal judicial institutions were reported, for instance, in the selection,Footnote ¹⁰⁸ promotion,Footnote ¹⁰⁹ and disciplining of judges.Footnote ¹¹⁰ Regarding judicial decision-making, informal internal judicial institutions may include informal rules concerning the deliberation of judges, choosing a judge rapporteur, or quora for decisions on leave to appeal.Footnote ¹¹¹

Mixed judicial institutions are informal institutions existing between judges and non-judges—typically politicians, oligarchs, or prosecutors. A majority of well-described mixed judicial informal institutions covers negative practices, such as informal institutions between politicians and judges in France,Footnote ¹¹² judicial corruption,Footnote ¹¹³ and clientelist networks with oligarchs in Ukraine.Footnote ¹¹⁴ But neutral—or even positive—informal mixed judicial rules and practices may also emerge in the dimension of judicial selection and appointments. For instance, the executive appointing apex court justices in some jurisdictions informally consults the chief justice even if the executive authority does not have to do so. Moreover, some mixed judicial informal institutions might be perceived differently in different countries. In Belgium the practice of the secondment of magistrates of the public prosecutor’s office to the ministries has recently come under scrutiny because it negatively affected de facto judicial independence.Footnote ¹¹⁵ A similar conclusion has been arrived at by the Czech Constitutional Court, which reacted to the widespread practice of secondment of judges to the Ministry of Justice, a practice that was later formalized in the law. The rationale for this practice was that judges might contribute “their experience,” particularly for the purpose of drafting new legislation. Nevertheless, the Czech Constitutional Court eventually abolished the practice as contrary to the principle of separation of powers.Footnote ¹¹⁶ In contrast, secondment of judges to the Ministries of Justice is regarded in Germany as both positive and necessary to secure sufficient expertise for the ministerial apparatus.

External judicial informal institutions cover those practices and activities that emerge from interactions concerning the judiciary between non-judicial actors, such as politicians, private business actors—corporations, businessmen, and oligarchs—and other legal professionals. As in the previous two categories, some of them carry positive or neutral, and some negative consequences for the functioning of the judiciary. Most common examples of external judicial informal institutions cover political conventions and informal agreements regarding the selection of judges that may pursue several goals: Proportionality between the opposition and a coalition, geographic proportional representation, gender requirements, and other diversity considerations.

A typical example of such an external judicial institution is the informal practice between two major German political parties regarding the selection of Justices at the German Federal Constitutional Court.Footnote ¹¹⁷ A similar rule can be found in Belgium, where the members of the Constitutional Court are elected by applying not only the rules explicitly stipulated in the Belgian Constitution concerning linguistic division and professional background, but also conventional rules concerning political diversity. More specifically, the judges of the Belgian Constitutional Court are expected to be representative of the political landscape. This means that for each vacancy it is known in advance which political party is “at bat” to select the new judge. The informal practice is that each party tries to choose a judge that will be acceptable for the other parties and that the other political parties simply do not complain.Footnote ¹¹⁸

I. Informal Institutions and Their Relationship with Adjacent Concepts

Institutions—both formal and informal—are one of the several concepts that can be used to explain how and why judiciaries function the way they do, how and why their functioning in practice differs from their functioning on paper, and why some judiciaries contribute to the democratic decay in their countries even though their legal framework may be quite standard and has not undergone any sudden change. We therefore begin by situating the concept of institutions within a broader framework of related concepts.

In general, we draw on Anthony Giddens' structuration theory,Footnote ¹¹⁹ which explains the relationship between individuals and society and replaces the traditionally established dualism between voluntaristic and deterministic types of theory with the central notion of the duality of structure. According to Giddens,Footnote ¹²⁰ individuals do not act completely independently, but their behavior is constrained by social structures such as norms, rules, and institutions. At the same time, these social structures are the products of human agency. In other words, social structures are both created—and reproduced, modified, and transformed—by individuals while also shaping individual behavior. This is also true in the field of the judiciary: The behavior of judges and other actors is shaped and constrained by norms, values, beliefs, rules, formal and informal institutions, laws, customs, and, in the broadest sense, culture. But it must be acknowledged that this behavior is, at the same time, the product of human agency. The conceptualization of the different types of social structures that constrain and shape judicial behavior—and the position of informal institutions in it—is depicted in Figure 1.

Figure 1. Social structures constraining and shaping judicial behavior.

Source: authors.

This broad approach also integrates two perspectives that are used in the socio-legal literature to explain the workings of the judiciary and the gap between formal rules and how they work in practice. First, institutionalist and neo-institutionalist perspectives draw attention to the continuum between formal and informal institutions,Footnote ¹²¹ and they aim to map “the formal architecture and informal networks, connections, conventions, rules, and norms of institutions.”Footnote ¹²² They primarily focus on various social structures constraining the behavior of judicial and non-judicial actors. Second, the relational perspective focuses on actors and personal interactions which animate individual behavior,Footnote ¹²³ and, in short, argues that “relational dynamics between judges and other judges, politicians, political groups, legal actors, and other individuals and collective entities matter.”Footnote ¹²⁴ From the perspective of the structuration theory, however, these two approaches are not contradictory. The social structures that shape and constrain human behavior are necessarily the result of human action. But an interest in actors and their relationships is a necessary part of the study of social structures, including institutions.

Turning the focus to Figure 1, at the broadest level, the behavior of judges and other actors in the judicial field is shaped and constrained by the culture prevailing in each country or region. According to a widely cited definition by Kroeber and Kluckhohn, culture:

For example, the extent to which corruption, nepotism, and clientelism are prevalent in a country's judiciary is usually related to the broader culture of that country—these phenomena are typically not limited to the judiciary but are part of broader cultural patterns.

Furthermore, narrowing the scope specifically to the field of law, a specific subset of culture that shapes and constrains the behavior of actors in the judicial field is the legal culture, which can be defined as “relatively stable patterns of legally oriented social behavior and attitudes.”Footnote ¹²⁶ It includes institutions, various forms of behaviors, ideas, values, aspirations, and mentalities.Footnote ¹²⁷ Legal culture helps us to explain why “individuals and societies differ in their use of law, or why legal systems differ, for example, in their litigation or prison rates.”Footnote ¹²⁸ Legal culture interacts with the culture of other social sectors, including political culture, religious culture, academic culture, business/commercial culture, public administration culture, and others.

Even more specifically, then, judicial culture—as a subset of legal culture—refers to the “features that shape how the work of a judge is performed and valued within particular legal systems.”Footnote ¹²⁹ Judicial culture covers the areas of judicial decision-making, judicial governance, and extra-judicial activities—interactions with other fields. As with any cultural-frame, judicial culture also involves norms, values, beliefs, ideas, symbols, artefacts, rules, practices, institutions, and organizations.

By organizations, we mean organized groups of people who have gathered for a specific purpose—such as individual courts, judicial academies, judicial associations. Different judicial organizations, even within one judiciary and one judicial culture, may have a different organizational cultures that can be defined as:

Although the terms “organization” and “institution” are sometimes used synonymously in common language, conceptually there is a significant difference between them. Institutions —formal or informal—are “the sum of (abstract and formal) rules of the game and of the ways in which those rules are concretely acted upon and played out,”Footnote ¹³¹ they are “the humanly devised constraints that shape human interaction,”Footnote ¹³² which provide “stability and meaning” to social life.Footnote ¹³³ Thus, while “organizations” refer to a group of actors—players—and their particular strategies and tactics, “institutions” refer to the rules according to which the game is played,Footnote ¹³⁴ and the ways in which these rules are applied—the practices.Footnote ¹³⁵ “Culture,” is a much broader and theoretically superordinate concept that encompasses all the elements mentioned above—and more. It helps to shape institutions and organizations and, unlike in case of institutions, the formal/informal duality does not apply here. Formal and informal judicial institutions are entrenched in culture as such, and legal culture in particular, they grow out of it, and their concrete form is one of its manifestations and expressions.

Finally, when thinking about informality, legal scholarship has long employed the concept of conventions, and we therefore consider it important to explain its place in our conceptualization. Since this Special Issue deals with informal institutions concerning the judiciary, we focus in our conceptualization only on constitutional conventions. According to Jaconelli, constitutional conventions are a species of social rules.Footnote ¹³⁶ More concretely, they refer to those social rules that possess a constitutional significance, have a normative quality, they prescribe certain standards of behavior, and are not enforced in the courts. Constitutional conventions need some historical precedents, a belief that the rule is binding, and a reason for the existence of the rule.Footnote ¹³⁷ In terms of our conceptualization outlined above, constitutional conventions can be understood as a specific type of informal institution—sets of rules that are considered binding and that are accepted as a social fact, and practices carried out on the basis of them—that operate in the field of constitutional law and that are usually considered legitimate by actors—which is not necessarily the case for all informal institutions.

II. Triadic Structure of Informality: Informal Act-Practice-Institution

Institutions are born in the process of institutionalizing human practices. Here, we distinguish between the concepts of “practice” and “act.” On the one hand, “practice” is “a routinized type of behavior”Footnote ¹³⁸ and “a pattern which can be filled out by a multitude of single and often unique actions reproducing the practice.”Footnote ¹³⁹ On the other hand, “acts” in our understanding involve something done or performed. Practices and acts are shaped by actors’ ideas, societal rules, principles or regulations governing conduct and behavior, norms, defined as “rules supported by a combination of empirical and normative expectations,”Footnote ¹⁴⁰ values, the conceptions that we have about what is desirable, important, valuable, and correct, and beliefs, an acceptance that something exists or is true.

Acts can be of a one-off nature, single acts, but they can also become routinized over time in practice, and practice can become institutionalized over time and become an institution. There are at least three different mechanisms leading to institutionalization.Footnote ¹⁴¹ First, it can occur because of positive feedback—when a particular practice is rewarded and when the opportunity costs of an alternative practice increase over time. Second, it can occur because of actors’ increasing commitment to the practice and their increasing interdependence—for example, when vested interests and ideologies become associated with a particular practice. Third, institutionalization can occur as a result of an increasing objectification of shared beliefs—when those who constructed certain practices pass them on to third parties as a fact. The process of institutionalization is completed when the shared understanding “is passed on to a new generation of actors who were not involved in its original formation” and the practice is accepted as a social fact.Footnote ¹⁴²

I. Informal Institutions as a Link Between the De Jure and the De Facto Performance of Courts

Courts are generally seen as rather formalized actors. They are the products of and embedded in constitutions and legal statutes. Although judges fill in gaps in these codified regimes and sometimes actively develop new legal rules, the general principle of their deliberation and decision-making is that they interpret—written—law, and, while doing so, they are bound by domestic or international legal norms. It is therefore not all that surprising that the continental legal and political science scholarship was somehow reluctant to acknowledge the impact of informal institutions on the governance and decision-making of courts. An exception to that tradition involved studies on socio-economic factors that impact judges’ decision-making. But these studies were more common in common law jurisdictions. Despite this general academic neglect, IJI are very much present in all judicial systems, although they might not be easy to observe. Sometimes they emerge to improve the position of individual actors compared to how much power and space for maneuver they are given by the formal institutional framework. In such a scenario, actors benefit from their mutual relations, the more networks and connections they have, the more arenas they participate in, the more informal practices they are able to initiate allowing them to tweak the power distribution to their benefit.

Many Special Issue authors have identified the emergence of IJI in those arenas where, at least according to the formal institutional framework, judges have a rather limited voice: They are formally engaged in governance, but with a limited formal impact on its regulation. In many European jurisdictions judges develop new informal rules, including self-constraining rules of behavior, to keep themselves from political pressure, or to increase judicial independence, accountability or transparency.Footnote ¹⁴⁴ For these reasons, many judges engage in the development of ethical standards, rules of proportionality, or impartiality. These are IJI that actually complement the constitutional design and support the rule of law, while also slightly reshaping the arena and empowering judges when compared to their political counterparts.

Silvia Steininger shows in her article Talks, Dinners, and Envelopes at Nightfall that even in a system as formalized as the German judiciary, the majority of extra-judicial activities of German judges, their communication strategies, or their contacts with politicians, were in fact governed exclusively by informal practices. To an extent, the lack of formal regulation might be the result of stakeholders’ lower interest in some areas of judicial governance and decision-making. The lack of attention on the part of legislative and executive power naturally left judges with large space for maneuver, which they had to fill with their own bottom-up created, informal rules. However, the recent increase in the public’s interest in judicial communication, legitimacy, and ethical standards, has had the effect of imposing a greater number of formal rules on judges and their behavior. External judicial practices suddenly appeared in the limelight of the public debate. For a long time, the German Constitutional Court used informality to exclude outsiders but also to promote its authority across the political and legal fields. Now, the Bundesverfassungsgericht struggles to coordinate with outsiders and faces increased pressure to make its rules on the behavior of judges and their communication more transparent for the sake of the—perceived—judicial independence and the rule of law.

Czechia also belongs to the family of continental career models for the judiciary. That tradition is commonly seen as deeply formal, hierarchical, and conservative. The scholarship mapped relatively well why Czechia, as the sole black sheep of the Eastern enlargement wave, rejected the supranationally recommended model of judicial council that delegates the governance of courts to a mixed body with a dominant representation of judges. Instead, it rests the judicial governance on the cooperation between the Ministry of Justice and court presidents.Footnote ¹⁴⁵ Ondřej Kadlec and Adam Blisa go back one step further and show that much of this cooperation rests on informal powers of court presidents who have capitalized on the inability of the Ministry to properly govern the judiciary.Footnote ¹⁴⁶ Kadlec and Blisa closely examine Czech practices in the selection of judges, decisions on composition of panels and case assignment, or off-bench activities. They explain how some judges managed to utilize the lack of regulation to informally increase their influence and eventually reach the position of “super-judges.” Super-judges are a relatively small class of judges who, through the use of informal practices, enhance their already—formally—strong positions and wield immense influence on the functioning of the judiciary in both its administrative and decision-making dimensions. These super-judges have far more influence than their official roles suggest. The article’s authors warn that, although superjudges arose out of systems with great levels of institutional as well as individual judicial independence, their powers can now compromise the integrity of judicial processes and undermine the authority and perceived legitimacy of courts.

Interestingly, the concept of super-judges has also emerged in Spain, albeit with very different connotations. Sara Iglesias Sánchez and Rafael Bustos Gisbert offer an insight in the Spanish judiciary that places a high value on formality as a guarantee of objective and unbiased judiciary, and as a shield against politicization. Yet, the authors explain that this system was still able to generate very strong informal networks and informal institutions that now present a potential danger for democracy. In the article What Does It Take to Become a Judge in Spain? An Informal First Step into a Formal World, the authors focus on widespread informal institutions concerned with the training of new judges—which requires an expensive and lengthy coaching program for state exams. They argue that informal coaching endangers democracy with its lack of transparency, its imposition of economic barriers on the access to the profession, and its adverse impact on the overall judicial culture.

Another unexpected actor in judicial governance appears in the article Civil Society as an Informal Institution in Ukraine’s Judicial Reform Process, which has been authored by Serhii Lashyn, Anastasia Leshchyshyn and Maria Popova. The authors discuss the unique repercussion of the Revolution of Dignity and the failed professional transformation of the Ukrainian judiciary. Since then, judicial reform has remained a salient topic. The inability of courts and judges to reform from the inside and rid their ranks of judges suspected of involvement in corruption or susceptible to capture by oligarchs triggered a unique change in society. Societal actors now pose as the watchdog of the judicial reform process and the key accountability actor. Society, mostly via grass-roots, bottom-up, and decentralized processes, monitors the judiciary and de facto replicates accountability mechanisms against the behavior of judges, as well as the more general performance of the judiciary. Civil society monitoring is well-institutionalized and finds support and leverage in EU institutions.

Finally, Lukáš Hamřík penned the article Actors of Informal Judicial Institutions and Practices, which examines the role and empowerment of unexpected actors through IJI. Hamřík argues that IJI can, in many jurisdictions, significantly reshape the field of power and influence of individuals. IJI either empower or bring completely new actors into the game. Unless an optic is adopted that allows us to explore IJI, we will never be able to map the whole field.

What follows from these observations? First, all these articles implicitly show that formal rules do not necessarily paint a real picture of the balance of power inside the judiciary and its governance. On the surface, IJI shape the functioning of courts. Some informal institutions are detrimental to the independence and legitimacy of courts. They may skew the selection processes and insert biases by lowering the impartiality of judges—who, because of IJI, might enter the judiciary in subservient position due to expectations of loyalty and gratitude. Other times, IJI further the protection of judicial independence or the insulation of judges from potential political pressure. They may reflect various proportionality rules, for example, to secure wide societal or multipartisan participation in the process of judicial selection. IJI may skew merit-based selection processes, but they might also insert new checks and balances and increase the legitimacy of indirectly elected judiciary.

The case studies in this Special Issue also hint at deeper consequences. Understanding IJI seems to be essential for the proper mapping of autonomy and power dynamics between individual actors of judicial governance and decision-making. The formal rules do not correspond to the de facto powers of individual stakeholders. In some instances, the appropriation of powers via the creation of informal rules is a natural consequence of a lack of regulation. We often see this in the case of chief justices and court presidents who have to be able to promptly react and adapt their managerial roles in order to secure the efficient functioning of their courts. The actors who benefit from IJI are not arbitrary. Typically, IJI emerge to advantage those actors who already bear relatively significant powers, or, at least, access to channels between crucial stakeholders. Yet, the multiplication of powers above the regulatory framework bears significant risks for the principle of separation of powers, and in the worst cases, will create an unbalanced system with skewed accountability mechanisms.Footnote ¹⁴⁷

II. Dynamics Between Formal and Informal Institutions: The Trend of Increasing Formalization

New informal institutions emerge for various reasons. Sometimes they fill the vacuum that exists because formal institutions are absent and do not regulate a given arena sufficiently.Footnote ¹⁴⁸ Formal institutions can be incomplete or ineffective,Footnote ¹⁴⁹ or not supported by sufficiently strong enforcement mechanisms.Footnote ¹⁵⁰ In such scenarios, actors might seek to introduce new IJI to reshape the balance of power created by formal institutional design and improve their own position. Naturally, this process is not available to all actors, but only those who can multiply their high social capital and embeddedness in various relational networks.Footnote ¹⁵¹ Alternatively, if the formal norms are sufficiently effective, new IJI will evolve to reinforce the local culture, better coordinate the arena, resolve potential conflicts, and reduce transaction costs.Footnote ¹⁵²

In Czechia, the judicial governance model overseen by the Ministry of Justice leads to many gaps that have been appropriated by court presidents. Actors also create informal rules if they feel that the formal framework is too difficult to change, weak, or if it blocks them from pursuing goals that are not publicly acceptable.Footnote ¹⁵³ As Šipulová and Spáč suggest, IJI can also emerge when actors do not internalize values behind newly introduced formal rules, and then create alternate systems of rules that better reflect their own understanding of, for example, limits and margins of judicial independence. This means that reasons behind the emergence of informal institutions move on two axes: One describes the ability of informal institutions to fill in the gaps in the existing formal framework; another captures the compatibility between the aims pursued by formal and informal institutions, since IJI can be created both to support the goals of formal rules, or to undermine them to prevent them from working effectively.

It is also worth noting that the relationship between formal and informal institutions can change due to their mutual interaction. IJI can diffuse in time, but they can also weaken or disappear completely if they are not functional, go unenforced, or if new eroding norms or a change of cultural beliefs emerge.Footnote ¹⁵⁴

The reasons for the emergence of informal institutions foreshadows their interaction with formal institutions. Based on the type of interaction, different authors in this Special Issue distinguish between different types of informal institutions. Helmke and Levitsky'sFootnote ¹⁵⁵ typology is based on the degree of convergence between the aims of formal and informal institutions and the degree of effectiveness of formal institutions. Accordingly, they distinguish four types of informal institutions: Complementary—which reinforce effective formal institutions—, substitutive—which substitute ineffective formal institutions—, accommodating—which subvert the expected outcome of effective formal institutions—, and competing—which take advantage of the ineffective formal institutions. According to Azari and Smith,Footnote ¹⁵⁶ informal institutions can perform three functions: complete formal institutions, co-ordinate the function of formal institutions, or operate parallel to formal institutions. Similarly, Grzymala-Busse arguesFootnote ¹⁵⁷ that informal institutions can replace, undermine, support, or strengthen formal institutions.

How does this dynamics manifest inside the judiciary? The largest trend we have observed across common law and continental jurisdictions, and across various models of judicial governance, was the gradual decline of informality and growing pressure to formalize the rules, irrespective of how well IJI function.

Continental courts are organized around formal institutions; the UK has always been standing on the opposite bank. As Sophie Turenne points in her article Informal Judicial Institutions – the Case of the English Judiciary, the informality at the heart of the judiciary in England and Wales reaches back to the inherited development of English law. The tradition assumes independent, creative judges who join the bench at a senior age and perceive the profession as an opportunity to contribute to the development of the law through their decisions. Informality drives not only decision-making but also the structure and organization of judicial governance, including the patterns and routines of judges’ behavior. This, however, does not come without drawbacks. The post-Brexit constitutional crisis demonstrated the government’s capacity to swiftly abandon long-established and observed unwritten constitutional norms. The conflict and tension between the government and the judiciary increases the pressure for the formalization of the separation of powers principle. That process of formalization curtailed the powers of the Lord Chancellor, but also imposed new expectations on courts, which were expected to modernize, engage more closely with the public, and increase the transparency of their internal processes.

Patrick O’Brien in his article Informal Judicial Institutions in Ireland collects evidence of an even stronger drift towards formalization behind full-fledged modernization of the Irish judicial governance system. Originally, governance of the judiciary was largely informal and political. Over the past 25 years, this system has been abandoned in favor of much more formalized governance, which resembles the model recommended and promoted by European supranational institutions. Interestingly, it was judges and politicians who stood behind this development, using the leverage of EU and CoE soft-law measures perceived as best practices. This actually shows us a lot about responsibility shifting: the system needed reform and the government happily externalized the effort and took on board recommendations from supranational European partners. There were some drawbacks—like rules completely missing in less politically salient areas—, but the judiciary was generally effective and stable, and enjoyed robust public trust. As O’Brien aptly points out, the formalization seems to have resulted from a quest for world in which rules would replace faith as a foundation for judicial governance and authority.

The formalization drift also appears in jurisdictions where we normally associate courts with a high degree of formality. Mathieu Leloup observes a similar trend in his article Informal Judicial Practices in the Belgian Legal Order: A Story of Incremental and Reactive Development. Leloup describes the Belgian judiciary as a system that is primarily formalized. But it also generates IJI filling in the gaps in the contours of the system. Interestingly, however, the Belgian legislature has interfered with increasing frequency and is formalizing these informal rules, typically as a reaction to external pressure.

The two horizontal articles, Supranational Actors as Drivers of Formalization, by Mathieu Leloup, and Informality as a Virtue, penned by Hubert Smekal, take a step back and look at more general patterns and repercussions of the process of formalization. As Leloup states, the drivers of these processes are supranational actors on the European level. First, they pose as a source of inspiration, nudging domestic actors with particular examples of their effectiveness and prominence. Leloup warns that supranational actors think very little about informality and have a tendency to overlook informality and its meaning. Similarly, in his analysis of benefits and potential positive effects of IJI, Smekal warns that the process of formalization deprives IJI of their capacity to “fill in the gaps” of less flexible formal regulation. Smekal argues that IJI have their place in the constitutional framework because, if they are consonant with principles of formal rules, they actually decrease transaction costs, reduce uncertainty, and promote social trust. This observation echoes works that suggest that informal institutions are a natural part of the evolution of political and social systems and they represent the bottom-up creation of rules, including the rules necessary for fostering democracy and the rule of law. Their bottom-up character increases social trust, reinforces legal culture, and potentially also lowers deviation.

But, if informal institutions play a potentially positive role, why do we see increased pressure for formalization? This Special Issue provides three tentative explanations. First, the formalization of informal institutions concerning the judiciary results from a shift in judicial culture and more stringent requirements of the rule of law. Nowadays, the principles of transparency and accountability apply also to the judiciary, which resisted these pressures for a long time. For this reason, informality in the functioning of the judiciary is being replaced with formalized rules of behavior. This development is not necessarily motivated by the lack of effectiveness of informal institutions or because of their negative repercussions, but because of the belief that the formal rules increase the participation of individuals in the rule of law systems. However, this formalization without deep and developed democratic cultures, that create informal “guardrails” for the protections against a slide into autocracy, is futile. Moreover, formalization often decreases flexibility and effectiveness of courts. There are empirical studies that suggest that informality in judicial decision-making and management emerges as a means of increasing the ability of courts to deal with growing case-loads, and in any case to be more effective or efficient. As a drawback, however, this informality in managerial style makes the systems less understandable and creates a significant barrier for individual participation.Footnote ¹⁵⁸

Second, formalization results from the tendency of some stakeholders to rely on the technocratic style of governance, which uses overregulation and imposition of top-down rules. This also relates to change in the arena where the rules are developed. In Europe, many formal requirements now emerge at the supranational level and are imposed on domestic actors via the organs of the European Union and the Council of Europe bodies.Footnote ¹⁵⁹ These supranational bodies attempt to approximate the legal and judicial systems across the Continent, with the promise to increase institutional safeguards against democratic decline. Many EU member states have internalized this mindset and voluntarily adjusted to these supranational efforts.Footnote ¹⁶⁰ Others have resistedFootnote ¹⁶¹ or pervertedFootnote ¹⁶² the supranational signals.

Third, formalization is expected to decrease the vulnerability of informal norms, which are perceived as more fragile and susceptible to change.Footnote ¹⁶³ Many IJI originally developed to protect judges from political pressure. They attached to the principles of democracy and the rule of law, and they provided an additional layer of protection above codified ethical standards or various rules of representation. One way IJI added protection was by increasing the number of potential veto points actors would need to overcome in an attempt to capture the judiciary. Formalization is a sort of pre-commitment strategy that follows a “judicial stress test.”Footnote ¹⁶⁴ This is not surprising. As Guy Lurie suggests in his study of the Israeli judiciary, informal institutions are often very fragile. Some of them are relatively easy to dismantle, even if they were properly internalized and observed by the majority of relevant actors. In other words, there is a tendency to translate informal institutions directly into formal frameworks because they are put under stress. In this way, they are absorbed by actors who identify them as binding and start enforcing them via formal sanctioning channels—typically supreme courts and constitutional tribunals. If some of these sanctioning channels are approaching a collision course with dominant political actors, then there is even more impetus to increase informal norms’ embeddedness in constitutional structures.

III. Commitment of Elites and Internalization of Values

The third trend the authors in this Special Issue explored is the role of IJI in institutional reforms, and, in particular those institutional changes pursued by the European Union and Council of Europe that sought to foster processes of democratization. The observation that transplantation of institutional reforms from one country to another is problematic, is neither new nor surprising.Footnote ¹⁶⁵ This was very much the case with the establishment of judge-dominated judicial council, built on the example of the Italian model and promoted by the Venice Commission and European Commission in the post-communist region. Nino Tsereteli,Footnote ¹⁶⁶ Katarína Šipulová & Samuel Spáč,Footnote ¹⁶⁷ and Attila VinczeFootnote ¹⁶⁸ offer more evidence of the degree to which these models not only failed, but, in fact, magnified negative phenomena in those countries that were already struggling with widespread corruption, clientelism, low public trust, politicization, and a general lack of independence inside the judiciary.

But why were the supranational recommendations so unsuccessful? Generally, we know that institutional changes on their own rarely trigger behavioral change.Footnote ¹⁶⁹ Existing research suggests that the weak effect of formal institutional changes results from elites’ shallow commitment to the underlining values of democracy and the rule of law.Footnote ¹⁷⁰ Several authors in the Special Issue broaden this idea further and point to, on the one hand, a lack of congruence between new formal and surviving informal institutions, and, on the other hand, the ability of informal institutions to increase trust and loyalty due to their organic, bottom-up character.

Simone Benvenuti, in the article The Italian System of Judicial Governance: An Arena of Confronting Informal Practices and the Push Towards Formalization, uncovers informal rules and practices operating inside the Italian judicial council, and particularly in the appointment of court presidents and the evaluation of judges. Some IJI amplified the corporatist character of the Italian judicial council that also allowed the judicial associations and stakeholders to increase their influence and power. Yet, it would be wrong to portray them in negative terms only. Some IJI add to the overall flexibility of the legal framework, particularly if this is too complex, or has many loopholes due to hyper-regulation.

Katarína Šipulová and Samuel Spáč take this argument one step further. Their Article No Ghost in the Shell: The Role of Values Internalization in Judicial Empowerment in Slovakia shows that the formal reform of judiciaries might not provide sufficient incentives for judges to change their behavior. Slovakia implemented a supranationally recommended model involving a judicial council and shifted the concentration of power from the political branches and the Ministry of Justice to the judges. Yet, the reform failed to rid the national judiciary of a strong clientelist tradition and corruption networks. Why? The authors argue that formal institutions have only limited impact on the ideational level. In order to be effective, they must achieve the internalization of the underlying values of democracy by individual stakeholders—elites. The transformation of the Slovak post-communist judiciary relied on the presumption that judges‘ interests are automatically complementary to the principles of the rule of law. The majority of the reforms insulated the judiciary from the political branches, but allowed strong hierarchical relationships inside the courts to persist and flourish. The authors use examples of judges’ behavior on- and off-bench to demonstrate that judicial independence and its margins were never properly understood and internalized by the majority of Slovak judges. This eventually led to a skewed conception and to their diminished sensitivity to threats to judicial independence specifically, as well as to the rule of law and democracy in general.

The study of Georgia by Nino Tsereteli entitled Constructing the Pyramid of Influence: Informal Institutions as Building Blocks of Judicial Oligarchy in Georgia, extrapolates the negative experience of judicial reforms that are not embraced by elites who understand, share, and internalize the core values informing the changes. Tsereteli cautions that in some societies strong judicial councils and judicial self-governance bodies can be easily manipulated so that they benefit oligarchs. As Tsereteli argues, many societies fight never-ending battles against judicial corruption because the rest of the judicial elites simply do not care and have very little interest to engage in questions of governance.

What do these case studies teach us? The common narrative is that, while supranationally sponsored reforms are not wrong per se, they are often not enough to realize their aims. Success requires that these supranational reforms are supported by mechanisms that allow actors to properly understand and internally conceptualize the values that these formal reforms ought to protect. It is crucial that judges understand what judicial independence is. Unless they properly internalize it, they can hardly be committed to the values these detailed reforms seek to implement. The lack of internalization will allow the subsequent creation of contradictory new informal acts, practices, and eventually institutions. As studies suggest, it is essential, for the democratization efforts, that we are able to spot old IJI that might be competing with the spirit of new reforms. Once those irritants have been spotted, it will also be necessary to know how to effectively see them off. In this respect, emerging informal practices are a good litmus test to assess whether actors understand and share the principles that the new regulation aims to promote and protect. If judges do not share the same understanding of judicial independence, if they are not committed to it, then any formal reform will lead to a situation in which open challenges to, as well as small departures from, judicial independence persist.

IV. Democracy and Informal (Judicial) Institutions

As we already noted, IJI can have both positive and negative repercussions on the functioning of courts. Since the research on positives is rather underdeveloped, Hubert Smekal, in his Article Informality as a Virtue, offers a novel framework for the analysis of the positive relationship between formal and informal institutions. Smekal explains three core IJI scenarios and formal rules co-existence: (1) Formal institutions remain largely absent while informal institutions dominate and enhance the fundamental values of judicial systems; (2) formal and informal institutions are congruent, and informal institutions further improve the design or functioning of formal institutions—“fill-in gaps”; and (3) formal and informal institutions conflict, with informal institutions rectifying the poor design or functioning of formal institutions. The framework for assessing the level of (dis)agreement between informal and formal institutions then changes depending on whether IJI fill in the gaps of missing, or too general, formal rules, whether they tighten formal rules towards a stricter norm, or, to the contrary, loosen the rules.

The relationship and congruence between formal institutions and IJI is at the heart of the Article by Katarína Šipulová and David Kosař that deals with Decay or Erosion? The Role of Informal Institutions in Challenges Faced by Democratic Judiciaries. The authors situate IJI in the process of de-democratization and decline of democratic structures of courts, and they argue that informal institutions interact with democracy in two core directions. The first is endogenous and describes the decay of democratic judiciaries as a result of a long-term incongruence between formal and informal judicial institutions. The second direction captures the gradual erosion of informal institutions that have positive effects on judicial democratic resilience. These two processes—decay and the erosion of informal judicial institutions—should not be neglected. While they are less visible, slower, and often unintentional, they are as dangerous as frontal, executive-led attacks on courts, because they significantly increase the window of opportunity for politicians who wish to downgrade the substance of democracy or even implement a regime change.

IJI can either increase the resilience of the judiciary or open the window for its further erosion or decay. The contribution by Sorina Doroga and Raluca Bercea on The Role of Judicial Associations in Preventing Rule of Law Decay in Romania shows the strength of strategic alliances formed by Romanian judges during the rule of law crisis triggered by the 2017–2019 reforms. The Romanian judicial associations pushed the overarching aim of those entities—namely, the protection of rule of law—to the next level. The associations led an intentional coordination of individual court disputes with the aim of utilizing and pressuring the European Court of Justice to adjudicate on the Romanian situation via the use of the preliminary ruling procedure.

David Kosař and Attila Vincze then follow up with a discussion of constitutional conventions concerning the judiciary. They show that constitutional conventions—the typically unwritten rules that inform, guide, and curtail the actions of constitutional actors—are an essential part of constitutional architecture in any constitutional system and permeate not only the political branches but also the judiciary. Importantly, these constitutional conventions concerning the judiciary do not only exist in the common law world. They can also be found in civil law jurisdictions. On a more general level, Kosař and Vincze connect legal scholarship on constitutional conventions with the writings on informal institutions in the social sciences. They argue that constitutional conventions are a subcategory of a broader class of informal institutions, but they are a specific species among informal institutions. At least three features distinguish constitutional conventions from informal practices, informal institutions, and “non-constitutional” conventions. First, constitutional conventions must concern issues of constitutional significance and must involve constitutional actors, which not all informal institutions do. Second, constitutional conventions are usually considered legitimate by the relevant constitutional actors, which is again not necessarily the case for all informal institutions. Finally, there must be a constitutional justification enshrined in the constitutional convention.

In contrast, Guy Lurie in his Article The Invisible Safeguards of Judicial Independence in Israeli Judiciary shows that informal rules, that long existed in Israel as safeguards against political interferences in judicial independence, are very fragile and relatively easy to dismantle. The political attempt to change these informal institutions can even be seen as a harbinger of the current attempt of Netanyahu’s coalition government to adopt a constitutional overhaul that formally changes the constitutional status of the Israeli judiciary.Footnote ¹⁷¹ If this judicial reform succeeds, which is by no means clear at the moment of writing this article, even though the Israeli government had implemented one major pillar of the reform before the Israeli-Hamas war was triggered, it will strengthen political and partisan considerations in judicial appointments as well as opaquely change who is responsible for court administration in Israel.Footnote ¹⁷² This may in turn tighten the political grip over the Israeli judiciary,Footnote ¹⁷³ as well as halt the judicial anti-corruption check on Israeli politicians.Footnote ¹⁷⁴