Informal Institutions and Judicial Independence

Abstract

Scholarship addressing judicial independence and democratization for a long time believed that the strengthening of formal institutions fosters the rule of law culture and reduces the size and spread of the informal sector. Recent events from Poland, Hungary, Ukraine, Romania, or Slovakia undermine these claims. Informal judicial institutions, ranging from bureaucratic norms to clientelism, often shape judicial performance and its relationship with other political actors. For example, various “gentlemen’s pacts” between judicial associations may substitute formal rules governing selection of judges, entrenching patronage and vertical gender segregation. Nepotism or corruption, just as informal alliances of judges and politicians negatively influence judicial independence. Transnational judicial networks, on the other hand, often transfer good practices and correct imperfect written rules and loopholes. However, we know still very little about informal institutions affecting the judiciary, and even less about their impact, their emergence, and circumstances under what they can be modified. The most recent scholarship suggests that international organisations-lead technocratic institution building (driven especially by the Council of Europe and the European Union) does not necessarily correlate with satisfactory levels of judicial independence and fails to eliminate previous informal practices (Dimitrova2010, DeVisser2015, Volpe2016, Kosař&Baroš&Dufek2019). Similar claims appear also in relation to the implementation of formal institutions and judicial reforms during the EU accession and post-accession conditionality (Blokker 2019, Krygier2019, Sadurski2019a, Kochenov2019, Uitz2020). Nevertheless, so far only little attention has been paid to the role of informal institutions in the effect (or lack thereof) of supranational conditionality. We need more empirical and theoretical studies on the extent or influence of informal institutions on corruption, politicization, interference with independence, and capture of the judiciary. This panel invites scholars to address the role of informal institutions in judicial reform and its relationship to judicial independence. It presents papers targeting informal institutions and their impact on judicial independence that (1) employ mixed methods and approaches to explore case studies from and outside of European jurisdictions, drawing extensively on interviews, surveys, court case analysis and other primary data, (2) explore the relationship between judicial reform, the influence of international organisations such as the EU, and informal institutions, and (3) address the distinction between positive and negative informal institutions.

Title	Details
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