Periodic Reporting for period 2 - INFINITY (Informal Judicial Institutions: Invisible Determinants of Democratic Decay)
Reporting period: 2023-03-01 to 2024-08-31
Informal judicial institutions are as important as formal ones. For example, various “gentlemen’s pacts” between judicial associations may compete with or even substitute for formal rules governing the selection and promotion of judges. These pacts may in turn entrench patronage (prototypical examples can be found in Italy and France), nepotism (present e.g. in Slovakia) and vertical gender segregation (Spain and Czechia). Similarly, politically savvy chief justices can tweak the formal rules and forge informal alliances with politicians (Slovakia, Georgia), with other court presidents (Czechia, Georgia, Ukraine) or with transnational judicial networks (Poland). Judges may also team up with journalists and mobilise the public through social networks to defend judicial independence. In long-established democracies, informal practices have usually corrected imperfect formal institutions and closed loopholes. In contrast, some informal practices like corruption (Romania), telephone justice (Ukraine) and clientelism (Serbia) may undermine existing formal institutions.
In sum, while in some countries well-designed formal institutions do not function well owing to the existence of competing informal institutions, in other countries not-so-well-designed formal institutions operate smoothly because of the existence of corresponding informal institutions. Informal judicial institutions thus may not only complement and accommodate formal judicial institutions but also compete with or even replace them. We argue that they may in turn either contribute to democratic decay or provide an additional layer of resistance against it.
The significance of INFINITY is that we need to know how informal judicial institutions operate if we want to counteract democratic decay, especially given the current developments in Central and Eastern Europe. Thus, the INFINITY project poses the core research question: how do informal institutions affect the functioning of the judiciary, and under what circumstances do they counteract or contribute to democratic decay? INFINITY could have a huge societal impact as it could lead to improving the current strategies of the EU and the Council of Europe in fighting democratic decay and contribute to upholding the rule of law and fundamental rights.
More specifically, the INFINITY project consists of four key aims. The first is to identify what informal judicial institutions exist in 13 selected jurisdictions. The second is to assess the impact of selected informal judicial institutions on the European judiciaries, including their gender aspects. We acknowledge that informal judicial institutions can have both negative and positive effects on formal institutions and the overall functioning of the judiciary. The third aim is to assess the impact of supranational organizations (especially the European Union and the Council of Europe and their respective bodies) on the emergence and functioning of informal judicial institutions. The fourth aim is to synthesise previous findings on the dynamics of informal judicial institutions into an overarching theory on the role of informal judicial institutions in democratic decay.
In sum, while in some countries well-designed formal institutions do not function well owing to the existence of competing informal institutions, in other countries not-so-well-designed formal institutions operate smoothly because of the existence of corresponding informal institutions. Informal judicial institutions thus may not only complement and accommodate formal judicial institutions but also compete with or even replace them. We argue that they may in turn either contribute to democratic decay or provide an additional layer of resistance against it.
The significance of INFINITY is that we need to know how informal judicial institutions operate if we want to counteract democratic decay, especially given the current developments in Central and Eastern Europe. Thus, the INFINITY project poses the core research question: how do informal institutions affect the functioning of the judiciary, and under what circumstances do they counteract or contribute to democratic decay? INFINITY could have a huge societal impact as it could lead to improving the current strategies of the EU and the Council of Europe in fighting democratic decay and contribute to upholding the rule of law and fundamental rights.
More specifically, the INFINITY project consists of four key aims. The first is to identify what informal judicial institutions exist in 13 selected jurisdictions. The second is to assess the impact of selected informal judicial institutions on the European judiciaries, including their gender aspects. We acknowledge that informal judicial institutions can have both negative and positive effects on formal institutions and the overall functioning of the judiciary. The third aim is to assess the impact of supranational organizations (especially the European Union and the Council of Europe and their respective bodies) on the emergence and functioning of informal judicial institutions. The fourth aim is to synthesise previous findings on the dynamics of informal judicial institutions into an overarching theory on the role of informal judicial institutions in democratic decay.
Since the beginning of the project, the research team has focused mostly on work packages (WPs) 1-5. In particular, it set up the conceptualisation of the topic in WP1, methodological setup of the empirical in WPs 2-4, and conducted elite interviews in these empirical WPs.
Our research endeavour within the first WP resulted in the Special Issue entitled “Informal Judicial Institutions: Invisible Determinants of Democratic Decay”, co-edited by David Kosař (PI) and Katarína Šipulová and published by the prestigious (open access) German Law Journal (24:8, 2023). This Special Issue is perhaps the most extensive mapping of informal judicial institutions in Europe (for more details, see below).
Within WPs 2 and 3, the team conducted interviews with judges, politicians, lawyers and journalists in 10 jurisdictions: France, Germany, Italy, Ireland, Poland, Hungary, Czechia, Slovakia, Romania and the United Kingdom. These two WPs aim to gain an in-depth knowledge of the effects on the judiciary of informal political, private and judicial institutions and of the interplay between informal and formal judicial institutions.
WP4 also relies on interviews conducted with judges. It focuses on gender aspects of informal judicial institutions, with some results already published (see Kosař, Urbániková and Havelková, ‘The Family Friendliness That Wasn’t: Access, but Not Progress, for Women in the Czech Judiciary’, Law & Social Inquiry, 47:4, 2021; and Urbániková, Havelková and Kosař, The Art of Waiting Humbly: Women Judges Reflect on Vertical Gender Segregation, Feminist Legal Studies, First View, 2023). Besides exploring gender aspects of the Czech judiciary as a case study, we also examined theoretical approaches to studying gendered informal practices affecting the judiciary and mapped the informal elements that can hinder or facilitate women’s judicial careers.
Within WP5, we have already published several articles and book chapters on the role of supranational courts in preventing democratic decay and protecting judicial independence, with particular focus on the ability of those courts to capture informal networks and rules that lead to the deterioration of judicial independence and the rule of law (see Leloup and Kosař, ‘Sometimes Even Easy Rule of Law Cases Make Bad Law’, EuConst, 18:4, 2022; Kadlec and Kosař, ‘Romanian version of the rule of law crisis comes to the ECJ’, Common market law review, 59:6, 2022; Bobek and Kosař, ‘Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires’ European Law Review, 48:3, 2023).
Our research endeavour within the first WP resulted in the Special Issue entitled “Informal Judicial Institutions: Invisible Determinants of Democratic Decay”, co-edited by David Kosař (PI) and Katarína Šipulová and published by the prestigious (open access) German Law Journal (24:8, 2023). This Special Issue is perhaps the most extensive mapping of informal judicial institutions in Europe (for more details, see below).
Within WPs 2 and 3, the team conducted interviews with judges, politicians, lawyers and journalists in 10 jurisdictions: France, Germany, Italy, Ireland, Poland, Hungary, Czechia, Slovakia, Romania and the United Kingdom. These two WPs aim to gain an in-depth knowledge of the effects on the judiciary of informal political, private and judicial institutions and of the interplay between informal and formal judicial institutions.
WP4 also relies on interviews conducted with judges. It focuses on gender aspects of informal judicial institutions, with some results already published (see Kosař, Urbániková and Havelková, ‘The Family Friendliness That Wasn’t: Access, but Not Progress, for Women in the Czech Judiciary’, Law & Social Inquiry, 47:4, 2021; and Urbániková, Havelková and Kosař, The Art of Waiting Humbly: Women Judges Reflect on Vertical Gender Segregation, Feminist Legal Studies, First View, 2023). Besides exploring gender aspects of the Czech judiciary as a case study, we also examined theoretical approaches to studying gendered informal practices affecting the judiciary and mapped the informal elements that can hinder or facilitate women’s judicial careers.
Within WP5, we have already published several articles and book chapters on the role of supranational courts in preventing democratic decay and protecting judicial independence, with particular focus on the ability of those courts to capture informal networks and rules that lead to the deterioration of judicial independence and the rule of law (see Leloup and Kosař, ‘Sometimes Even Easy Rule of Law Cases Make Bad Law’, EuConst, 18:4, 2022; Kadlec and Kosař, ‘Romanian version of the rule of law crisis comes to the ECJ’, Common market law review, 59:6, 2022; Bobek and Kosař, ‘Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires’ European Law Review, 48:3, 2023).
During the first half of the project’s implementation, the INFINITY project led to dozens of academic contributions, i.e. 39 journal articles (including the ones published in leading journals) and 2 book chapters. Here, we can mention only some of the many.
As already mentioned above, our biggest collective achievement so far has been the publication of the Special Issue. It contains an introductory piece, case studies of 13 jurisdictions, as well as 5 horizontal papers comparing the broader effects of informal institutions on judicial decision-making, rule of law and democratic decay. Every individual article provides interesting insights into the functioning of judiciaries from the perspective of informal institutions. Beyond that, the introductory article to the Issue arrives at several important conclusions. It demonstrates that it is impossible to truly understand how judiciaries function unless we take into account the informality that shapes both judicial governance and judicial decision-making. The article also points to an observable and strong trend towards formalisation of rules, promoted mostly by actors operating at the supranational European level. Lastly, it explains why reforms of formal rules are often not sufficient to trigger behavioural changes.
Besides the WP1 outputs, contributions penned by David Kosař and Katarína Šipulová on court-packing represent another important research area for our team. In their first project-related article (‘Comparative court-packing’, International Journal of Constitutional Law, 21:1, 2023), they provide a new, broader definition of court-packing that includes not only expansion of the court in question, but also emptying and swapping strategies. Furthermore, the authors develop a prospective pragmatic mid-level theory that allows us to assess whether a given court-packing plan is legitimate. In their second contribution (‘Court-Unpacking: A Preliminary Inquiry’ In: Transition 2.0 Re-establishing Constitutional Democracy in EU Member States), they focus on the question of what to do with packed courts once the political actors who staffed them with loyal or ideologically aligned judges lose power. Kosař and Šipulová analyse the normative underpinnings of unpacking in the broader context of democratic decay and abusive constitutionalism. This article has huge potential to shape debates in years to come as it addresses a hitherto rather ignored question.
Furthermore, David Kosař, Katarína Šipulová and Ondřej Kadlec have published an article entitled ‘The Case for Judicial Councils as Fourth-Branch Institutions’ in a leading European Constitutional Law Review (20:1, 2024). In this article, the authors conceptualise judicial councils as fourth-branch institutions, allowing them to capture the dangers of politicisation of and corporativism within these bodies. The authors argue that in order to tackle these dangers judicial councils should have certain design features. Consequently, they sketch a model of how such an institution would ideally be designed, guided by the core idea of fourth-branch institutions – that they should possess the necessary combination of independence, accountability and expertise.
In a series of articles, Mathieu Leloup focused on the role of the two European supranational courts in strengthening judicial independence and pushed the boundaries of our current understanding of what role the ECtHR and CJEU play in fighting democratic decay and attacks against domestic judiciaries (see, e.g. Leloup, ‘Not Just a Simple Civil Servant: The Right of Access to a Court of Judges in the Recent Case Law of the ECtHR’, European Convention on Human Rights Law Review, 4:1, 2022).
In the second half of the project, the team plans to publish a new special issue covering the informal role of chief justices of supreme and constitutional courts from a global perspective. The Special Issue is planned to cover selected jurisdictions from Europe, Latin America, Asia and Africa to promote a better understanding of how different constitutional and political systems interact with informal rules and practices. Another future project related to chief justices includes a book chapter offering a conceptualization of formal and informal powers of court presidents (WP2), as well as an article on the leadership styles of chief justices at supranational courts (WP5) and a chapter specifically focused on the gendered powers of female chief justices (WP4). Next, the team is developing theoretical work on the interaction between informal institutions and constitutional conventions (WP6), and an article that introduces a novel concept of “court hoarding”.
As already mentioned above, our biggest collective achievement so far has been the publication of the Special Issue. It contains an introductory piece, case studies of 13 jurisdictions, as well as 5 horizontal papers comparing the broader effects of informal institutions on judicial decision-making, rule of law and democratic decay. Every individual article provides interesting insights into the functioning of judiciaries from the perspective of informal institutions. Beyond that, the introductory article to the Issue arrives at several important conclusions. It demonstrates that it is impossible to truly understand how judiciaries function unless we take into account the informality that shapes both judicial governance and judicial decision-making. The article also points to an observable and strong trend towards formalisation of rules, promoted mostly by actors operating at the supranational European level. Lastly, it explains why reforms of formal rules are often not sufficient to trigger behavioural changes.
Besides the WP1 outputs, contributions penned by David Kosař and Katarína Šipulová on court-packing represent another important research area for our team. In their first project-related article (‘Comparative court-packing’, International Journal of Constitutional Law, 21:1, 2023), they provide a new, broader definition of court-packing that includes not only expansion of the court in question, but also emptying and swapping strategies. Furthermore, the authors develop a prospective pragmatic mid-level theory that allows us to assess whether a given court-packing plan is legitimate. In their second contribution (‘Court-Unpacking: A Preliminary Inquiry’ In: Transition 2.0 Re-establishing Constitutional Democracy in EU Member States), they focus on the question of what to do with packed courts once the political actors who staffed them with loyal or ideologically aligned judges lose power. Kosař and Šipulová analyse the normative underpinnings of unpacking in the broader context of democratic decay and abusive constitutionalism. This article has huge potential to shape debates in years to come as it addresses a hitherto rather ignored question.
Furthermore, David Kosař, Katarína Šipulová and Ondřej Kadlec have published an article entitled ‘The Case for Judicial Councils as Fourth-Branch Institutions’ in a leading European Constitutional Law Review (20:1, 2024). In this article, the authors conceptualise judicial councils as fourth-branch institutions, allowing them to capture the dangers of politicisation of and corporativism within these bodies. The authors argue that in order to tackle these dangers judicial councils should have certain design features. Consequently, they sketch a model of how such an institution would ideally be designed, guided by the core idea of fourth-branch institutions – that they should possess the necessary combination of independence, accountability and expertise.
In a series of articles, Mathieu Leloup focused on the role of the two European supranational courts in strengthening judicial independence and pushed the boundaries of our current understanding of what role the ECtHR and CJEU play in fighting democratic decay and attacks against domestic judiciaries (see, e.g. Leloup, ‘Not Just a Simple Civil Servant: The Right of Access to a Court of Judges in the Recent Case Law of the ECtHR’, European Convention on Human Rights Law Review, 4:1, 2022).
In the second half of the project, the team plans to publish a new special issue covering the informal role of chief justices of supreme and constitutional courts from a global perspective. The Special Issue is planned to cover selected jurisdictions from Europe, Latin America, Asia and Africa to promote a better understanding of how different constitutional and political systems interact with informal rules and practices. Another future project related to chief justices includes a book chapter offering a conceptualization of formal and informal powers of court presidents (WP2), as well as an article on the leadership styles of chief justices at supranational courts (WP5) and a chapter specifically focused on the gendered powers of female chief justices (WP4). Next, the team is developing theoretical work on the interaction between informal institutions and constitutional conventions (WP6), and an article that introduces a novel concept of “court hoarding”.