Editorials | Volume 24 (2023)

Editorial | Volume 24 No. 8

Dear Readers and Friends,

Our latest Special Issue challenges our ways of understanding courts as principally formalized institutions following strict rules and procedures. Beyond this common perception, courts are shaped by many unwritten, informal rules, practices, and institutions—and this informal side is essential to understanding the functioning of courts, both domestically and internationally. Consider, for example, how the career paths of judges are structured, what practices determine the decision-making of courts, or how courts organize their public communication.

Informality plays a complex and ambivalent role in the judiciary. It is the invisible social glue of constitutional systems, generative of judicial culture and resilience beyond what written rules can achieve. The other side of the coin, perhaps more commonly highlighted, is however that informality creates risks of nepotism, corruption, and democratic decay. The Special Issue Informal Judicial Institutions—Invisible Determinants of Democratic Decaypresents ‘informality’ as a fresh and most productive lens to study courts, their decisions and the role of the judiciary in times of democratic backsliding. Guest editors David Kosař, Katarína Šipulová and Marína Urbániková are not only true pioneers for foregrounding informality, but have taken on the gigantic task of curating a collection of no less than 19 contributions on different jurisdictions, practices, and institutions. Our deep thanks for this. The herculean effort surely paid off: This Special Issue will show the workings of courts and judges in a new light and offers new diagnosis of and recipes against democratic decay.

So, let’s look at what you will find.

In their introduction, David Kosař, Katarína Šipulová and Marína Urbániková offer a conceptual framework to studying informal judicial institutions and its indicative role for the quality of democracy. The authors note a trend of formalization of rules influenced by supranational European initiatives and demonstrate why such reforms of formal rules are often insufficient in and of themselves to attain behavioral changes.

A first series of articles on the ‘Rationales of Informal Judicial Institutions’ (I.) begins with Mathieu Leloup’s discussion of the existence and development of informal judicial practices in the Belgian legal order. A highly formalized legal system in principle, the Belgian legal order yet knows several informal practices that the legislator seeks to gradually formalize and integrate into the ambit of rules and procedures.

Ondřej Kadlec and Adam Blisa examine the practices of judge selection, panel composition and judicial off-bench activities in Czechia to argue that a selected group of judges, labeled here as ‘superjudges’, are able to expand their influence far beyond what the formal account of their roles might suggest.

Silvia Steininger’s analysis of the German Federal Constitutional Court shows a plethora of informal practices that have historically established and protected the Court’s authority. Recent years have seen those practices contested, partly through the judicial politics of right-wing populists, and the Court is responding by formalizing certain judicial behavior and by adjusting the Court’s communication.

Patrick O’Brien discusses the case of Ireland in its shift from a traditional common law model of judicial administration that leaves a distinct space for informal practices, to a more formalized continental European system over the past decades. This shift rests on the domestic support by judges and politicians while being driven at the supranational level by EU and Council of Europe soft law on judicial independence and rule of law.

Sara Iglesias and Rafael Bustos Gisbert use the example of judge training and selection in Spain to illustrate how particular institutional forms of judicial training, leading up to a state exam, affect the composition of the Spanish judiciary and its judicial culture.

Sophie Turenne’s article portrays the deep roots of informal judicial institutions in England that continue to matter even in a climate of growing reliance on formal rules. The Brexit litigation in particular has shown the importance of unwritten conventions to keep political behavior in check.

A second series of articles engaging with ‘Politicization and (Prevention of) Democratic Decay‘ (II.) of informal judicial institutions opens with Simone Benvenuti’s analysis of informal rules and practices operating inside the Italian Judicial Council, such as related to the appointment of court presidents and to the evaluation of judges.

Sorina Doroga and Raluca Bercea expose how Romanian judicial associations have actively contributed to safeguarding judicial independence in the rule of law crisis in recent years. Key pillars have been their communication tactics and their targeted use of preliminary references.

Katarína Šipulová and Samuel Spáč discuss why formal judicial reforms in Slovakia failed to overcome clientelism and corruption within the judiciary. They emphasize the importance of internalizing democratic values and of a thick understanding of judicial independence among judicial elites to achieve effective reform.

Attila Vincze portrays the Hungarian judiciary through two contrasting claims, namely that it is both in a precarious, captured state and that it is well-functioning. Which of the portrayals is more accurate depends on the interplay between formal and informal rules that offer key actors a chance to tip the scales in one direction or the other.

In his article, Guy Lurie argues that informal institutions play a central role in maintaining judicial independence in the Israeli judiciary, but that they are very fragile and relatively easy to dismantle. The failure to take such institutions into account in the judicial reform initiated in 2023, which is aimed at a far-reaching structural reorganization of the judiciary, carries a considerable risk of democratic decay.

Studying Georgia, Nino Tsereteli describes the judiciary as a pyramid-like structure where certain influential judges, labeled as judicial oligarchs, hold significant sway over the system. These oligarchs, along with their trusted associates, manipulate judicial self-governance bodies like judicial councils, exploiting the lack of interest and participation from other judges. Informal networks and institutions contribute to their electoral success.

Serhii Lashyn, Anastasia Leshchyshyn and Maria Popova turn to Ukraine’s judicial reform process since the 2014 Revolution of Dignity. Ukrainian civil society has developed into an informal judicial institution, as is evidenced by its impact on legal and political debates about the role of the Ukrainian Constitutional Court.

A third and final series of articles engaging with ‘Broader Horizontal Perspectives’ (III.) begins with David Kosař and Attila Vincze discussing constitutional conventions—the typically unwritten rules that inform, guide, and curtail the actions of constitutional actors and are an essential part of both common law and civil law constitutional architecture. Turning to social sciences literature, the authors develop constitutional conventions as a subcategory of informal institutions.

Lukáš Hamřík scrutinizes how informal institutions change the powers, position, and influence of individual actors in judicial systems. His contribution maps and conceptualizes relevant actors, especially those not formally involved in particular judicial processes but able to impact it.

Mathieu Leloup brings supranational actors that promote a formalization of the judiciary in Europe to the fore. His contribution highlights the underlying rationale and the instruments of such a formalization, such as recommendations, reports, or decisions, and assesses advantages and disadvantages of this trend.

Hubert Smekal analyzes potential positive effects of informal judicial institutions, such as their capacity to ‘fill the gaps’ of formal rules. While such benefits are put at risk through a push towards formalization, informal judicial institutions remain desirable as they potentially decrease transaction costs, reduce uncertainty, and promote social trust.

In their closing contribution, Katarína Šipulová and David Kosař situate informal judicial institutions in the process of de-democratization and decline of democratic structures of courts. They note two developments, namely a decay of democratic judiciaries as a result of a long-term incongruence between formal and informal judicial institutions, and a gradual erosion of informal institutions that have positive effects on judicial democratic resilience. While less visible than and more incremental than frontal, executive-led attacks on courts, these developments are as dangerous for judicial independence and democracy.

We hope you share our excitement about this Special Issue that really showcases the richness that the lens of informality offers to the study of courts. Of course, it could not come timelier. May a sharper understanding of informal judicial institutions allow us to better grasp and act upon the creeping dynamics of democratic decay.

As always, happy reading,

Klaas Hendrik Eller

on behalf of the GLJ Editors-in-Chief