Informal Institutions and De Facto Internal Judicial Independence

What role do informal institutions play in the success or failure of formal institutions? We tackle this question by looking at the relationship between de jure and de facto judicial independence, a hotly debated topic in comparative constitutional and judicial politics scholarship. Building on insights from the literatures on formal/informal institutions, social norms, and institutional change we aim to clarify conceptually the de jure/de facto relationship and to bring informal institutions into the explanation to whether and why the expectations set in formal rules converge or diverge with judges’ de facto behavior. We identify four kinds of informal institutions regarding their relation with formal institutions: competing, overlapping, auxiliary, and Redundant, and use this typology to illustrate the efficacy (or lack thereof) of judicial councils, a formal institution created to promote meritocratic judicial selection, judicial independence, and accountability. Judicial councils, appointments commissions, and other similar formal institutions are relatively recent, but they have been expanding steadily: in 1985 only about 10% of the world’s jurisdictions then used judicial councils to select judges, whereas in 2015 such bodies were involved in appointments in over 60% of jurisdictions (Garoupa and Ginsburg 2015; see also Ginsburg and Garoupa 2009a, 2009b). The effectiveness of judicial councils, however, shows interesting variation: whereas in some countries the council has protected internal judicial independence and fostered the professionalization of the judicial career, in other countries the judicial council has not been able to eradicate undue interferences on judge’s selection and decisions (e.g. Hammergren 2006; Kosar 2016). To account for this variation, we argue, is paramount to assess whether there was any pre-existing informal institution affecting judges’ independence and performance and, if there is one, to identify its type, and then to evaluate the councils’ performance taking this informal institution fully into account.