I. The Interplay Between Formal and Informal Institutions

The following section meditates on the interplay between formal and informal institutions in relation to the beneficial influence of informal institutions. It does not include scenarios such as legalism, that is, situations dominated by formal institutions where social networks are irrelevant.^{Footnote 27} Equally, it omits situations where informal institutions exist but do not clearly count as positive. It follows then that three basic scenarios can emerge: (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, they “fill-in gaps” left by formal institutions, (3) formal and informal institutions conflict, with informal institutions rectifying the poor design or functioning of formal institutions.

Various authors have proposed further fine-tuning of the basic conflict and congruence classification. For example, Helmke and Levitsky consider whether formal institutions are effective or ineffective, and whether outcomes of the formal/informal interplay are convergent or divergent. Complementary informal institutions typically “fill-in gaps” or serve as a foundation for formal institutions, leading to convergent outcomes. Accommodating informal institutions arise by creating incentives to change the substantive effects of formal rules without directly violating their letter.^{Footnote 28} When formal institutions are ineffective, informal institutions can act as competing, that is, followed instead of formal rules, or substitutive, where they help to achieve results that formal rules do not deliver.^{Footnote 29} In all these scenarios, informal judicial institutions may have positive influences.

Considering the sequence of occurrences of institutions brings with it another nuance. Informal institutions can both precede and follow formal institutions. Formal rules often cement pre-existing informal institutions into the form of official law with its own enforcement machinery. Informal institutions also frequently emerge after formal rules, typically when they fill-in existing gaps due to an overly vague legal framework or when inefficient formal rules are procedurally difficult to change. Informal institutions thus provide the opportunity to replace them in practice. If informal institutions perform well, they can trigger a reform of the original unsatisfactorily performing formal institutions.^{Footnote 30} Such gradual formalization of informal patterns may form a cycle, once formal rules are put in place, other informal institutions based on those formal rules will arise.^{Footnote 31}

II. How to Evaluate Informal Judicial Institutions

As already noted, informal institutions are typically studied as negative phenomena occurring mainly in non-democratic or transitional countries.^{Footnote 32} Such informal institutions as corruption and clientelism often occur when formal institutions fail, further worsening the quality of democracy.^{Footnote 33}

Informal institutions also thrive in democracies,^{Footnote 34} with both negative and positive influences. At times, informal institutions can even supersede formal laws, as Ellickson’s famous study of cattle ranchers in Shasta County, California, shows.^{Footnote 35} The informal, traditional, live-and-let-live norm benefitted from its straightforwardness. Ranchers relied on the “good neighbors” approach, rather than on a more complicated set of formal legal rules on cattle trespassing.^{Footnote 36} Similarly, informal rules may limit the negative consequences of misguided new formal rules.^{Footnote 37} Culturally derived informal constraints in particular typically show high levels of inertia and slow down the diffusion of the new formal rules.^{Footnote 38} The prevalence of competing informal institutions existing alongside formal institutions alerts the government about the ineffectiveness of formal rules.

One of the main reasons why literature prefers formal institutions is their clarity. Law defines obligations much more clearly and in much greater detail than informal norms.^{Footnote 39} Formal institutions support positive values such as transparency and predictability. Against this perspective, informal institutions offer flexibility. Their very lack of detail and not-so-precisely defined obligations makes them attractive. When formal institutions do not work, the informal ones can step in as a problem-solving device and compensate for formal institutional voids.^{Footnote 40} Informal institutions may also react more flexibly to a change in external conditions than formal institutions.^{Footnote 41} Updating formal institutions requires following often demanding legal procedures, while adjusting informal ones can proceed through sufficiently wide acceptance of the behavioral change. Informal institutions can further complement formal ones by increasing efficiency, easing decision-making, or facilitating negotiation.^{Footnote 42}

Authors often evaluate the relationship between informal institutions and democracy as conflictive. Informal institutions are suspected of a hostile stance towards democratic institutions, which they supposedly intend to eliminate or use for their own purposes.^{Footnote 43} Such preconceptions typically arise from the studies of a special type of relatively closed informal institution, such as mafia,^{Footnote 44} blat, guanxi,^{Footnote 45} etc., which can to a large extent, substitute for the operation of formal institutions. In order to evaluate the influence of informal institutions on the fundamental values of judicial systems in liberal democracies as positive or negative, we need to identify criteria for evaluation. In other words, when we say that something is good or bad, we should also articulate the reasons for which we conclude that it is good or bad.

Lauth proposed two classical criteria for assessing informal institutions which can also help to identify instances of positive informal judicial institutions: First, effectiveness and efficiency, an output-oriented criterion, and second, democratic procedure and legitimacy, an input-oriented criterion.^{Footnote 46}

The output-oriented criterion focuses on effective goal attainment, meaning prompt delivery and facilitating acceptability. In other words, we ask whether an informal institution contributes to successful problem-solving and compliance.^{Footnote 47} The closed nature of informal networks and some shared characteristics between their participants—alma mater, gender, ethnicity, etc.—may facilitate agreements and problem-solving. The output-oriented criterion is not free from controversies. Chavance has pointed out that informal rules and their interaction with formal ones may create beneficial and detrimental consequences for different groups.^{Footnote 48}

The second, input-oriented, criterion focuses on procedural aspects which enhance legitimacy. These procedural aspects include values such as inclusive participation, deliberation based on the use of arguments, or accountability.^{Footnote 49} Informality, as such, has an uneasy relationship with input legitimacy standards. Its closed, secluded nature typically contradicts inclusion, deliberation, transparency, and accountability.^{Footnote 50}

Democracy and the rule of law are concepts which are too broad and fuzzy^{Footnote 51} to serve as yardsticks for assessing informal institutions. This paper instead chooses a narrower phenomenon and suggests evaluating whether a given informal judicial institution promotes one –or more–of the fundamental values of the justice system in liberal democracies. These values include procedural fairness, efficiency, accessibility, public confidence in the courts, judicial independence,^{Footnote 52} integrity, propriety, competence, accountability,^{Footnote 53} and transparency. Arguably, through enhancing the fundamental values of the justice system, positive informal judicial institutions also contribute to improving the quality of democracy and the rule of law.^{Footnote 54}

Admittedly, these ideals predominantly represent the “Western” perspective.^{Footnote 55} Nevertheless, the jurisdictions examined here are predominantly European liberal democracies, with other jurisdictions serving more as illustrations of different approaches. Non-democracies typically lack one of the fundamental values—judicial independence. The distinction between liberal democracies and the rest is important here because the quality of democratic procedures matters for normative assessment.^{Footnote 56} In liberal democracies, informal institutions are typically complementary to formal ones and provide them with flexibility and social underpinning. In contrast, in defective democracies, informal institutions undermine formal ones and fill them with their own functional logic.^{Footnote 57}

As noted above, informal institutions usually require the balancing of competing interests. While they may score well in terms of output, informal institutions, almost by definition, face trouble dealing with standards of input legitimacy. In order to be considered a positive informal judicial institution, the benefits of its contribution to the fundamental values of the justice system have to outweigh the costs. In practice, the question will be whether the positive results of informal institutions can justify their inherent procedural drawbacks. The result of the particular evaluation of informal judicial institutions depends on the given circumstances in each jurisdiction. Because the balancing of interests takes place, the same institution can be perceived very differently at a different time, in a different place, or under changed conditions.

The relationship between informal institutions and transparency deserves special consideration. Informality generally implies a lack of transparency. The information is hidden from the public, and access to informal networks is restricted, which makes informality normatively problematic.^{Footnote 58} Anyways, transparency is only one of many values pursued by liberal democracies, neither the only one nor a hierarchically superior one. Therefore, the lack of transparency might be offset by an overriding benefit brought about by a different competing value. Moreover, informal institutions may increase transparency, for example, as an informal practice of broadcasting judicial proceedings, without a law approbating such a possibility.

III. The Framework for the Evaluation of Informal Judicial Institutions

Based on the conviction in the literature that in liberal democracies informal institutions should complement formal ones, I propose a framework for evaluating informal institutions. Informality provokes suspicions. Modern liberal democracies aspire to bring formal rules into conformity with social “reality,” which applies even more strongly in the case of highly formalized hierarchical judiciaries. Formal rules acquire their legitimacy from the legislative process through which elected representatives of the people, after proper deliberation, adopt laws. Informal institutions do not undergo this deliberative process, yet they sometimes become the “rules of the game.”

The whole framework builds on the level of (dis)agreement between informal and formal institutions. The greater the discord between the informal and the formal, the greater the benefits to the fundamental values of judicial systems the informal institution has to bring to be evaluated as positive.

The least controversial scenario for informal institutions is “filling in gaps” when formal rules are completely missing or are too general. When informal institutions follow the purpose and spirit of formal rules no controversies should arise, except the usual trouble informal institutions have with input legitimacy. With the general trend of increasing formalization, the space for informal institutions to act in their filling-in-gaps capacity shrinks.

What I call “tightening” represents a more problematic scenario. Tightening arises when a formal rule sets a certain norm, but informal practice institutionalizes a stricter version of that formal rule, for example, when candidates for constitutional justice positions formally have to be over 40 years of age, yet in practice the appointing body will only seriously consider candidates who are over 50. Tightening narrows down the set of possible outcomes.

“Loosening” would be a further step up on the controversiality ladder. An informal institution in this scenario directly contravenes a formal rule, hence making it a special subset of the following category, “directly contradicting.” If a law requires that candidates for constitutional justice posts formally have to be over 40 years old, but in practice the appointing body will seriously consider also candidates who have reached 35, that is loosening. It informally expands the set of possible outcomes by practicing looser standards than the law requires.

Informal institutions “directly contradicting” formal rules represent the most problematic scenario, which raises the highest hurdle for justification of such informal institutions. Formal rules enjoy democratic legitimacy, and directly contradicting informal institutions thus grossly violates democratic standards.^{Footnote 59} It can be legitimized only rarely, by providing an exceptional overriding good.

I. Positive Informal Judicial Institutions in the Governance of the Judiciary

Governance of the judiciary covers mainly the organization of the justice system and judicial careers, especially judicial appointments, promotion, and disciplining.

In contrast to highly formalized systems of judicial governance and judicial decision-making, common-law countries do not perceive informality as per se threatening. The judiciaries in England and Wales and in Ireland build on judges who join the profession only at a later stage in their successful legal careers and do not necessarily want to progress in the judicial hierarchy. By focusing on entry to the judiciary, which traditionally invites people with a strong sense of independence, the systems de-emphasize the disciplining of judges, which occurs largely informally. They rely on senior judges to set general values and role orientations. Lived experiences help the judicial community to determine what works well.^{Footnote 66} Even though both England and Wales and Ireland have moved towards higher formalization in recent years, a comparatively high level of informality persists. Despite that, Ireland and the UK score very highly in the rule-of-law and democracy rankings.^{Footnote 67}

As a common law country with a rather small population and a very small number of judges who belong to a well-connected elite, Ireland counts as a clear candidate for a highly informal jurisdiction. This was the case until the mid-1990s. Judges would typically leave a successful career as a barrister or a solicitor, and would sit on the bench thanks to their network of political contacts. Despite the high level of informality and political involvement in the appointment process, judicial independence remained uncontested.^{Footnote 68} The culture of judicial independence was backed by the peer pressure and self-awareness of judges about their expected roles as impartial arbiters of disputes. Nevertheless, several judicial excesses occurred and the lack of a procedure for dealing with disciplinary misconduct appeared problematic. The usual chat between the offender and senior judges over a cup of tea proved too lenient for more serious misconduct which, nevertheless, fell short of the “nuclear option” of judicial impeachment.^{Footnote 69}

The occasional judicial scandals opened the domestic window of opportunity which met with supranational pressure towards formalization. The reforms introduced more explicit limits on the Government’s discretion in judicial careers which sought to strengthen formal independence and meritocracy. Moreover, after Supreme Court Judge Woulfe attended a dinner with many people connected to Irish politics, which was questionable in terms of anti-COVID rules,^{Footnote 70} new judicial conduct rules were adopted in October 2022.^{Footnote 71} The Irish population seemed not to mind the comparatively informal character of judicial governance, as they believe in the independence of its courts and judges both in EU-wide comparison^{Footnote 72} and also compared to other domestic actors.^{Footnote 73}

Notwithstanding the recent formalization steps, various examples of positive informal judicial institutions in Ireland prevail. It has been a long-standing convention that at least one judge on the Supreme Court is a non-Catholic. More recently, judicial appointments should also consider gender balance in the Court.^{Footnote 74} Such an informal institution contributes to higher diversity and inclusion and, subsequently, more legitimate judicial decision-making.^{Footnote 75}

England and Wales also represents a largely informal jurisdiction. Until the 2005 Constitutional Reform Act, “a tap on the shoulder” from the Lord Chancellor’s Department served as a signal to apply for senior appointments. The Department received tapping tips from senior judges, who saw the candidates performing, for example, as barristers in their courtrooms. While this informal practice arguably selected candidates with an excellent skill set, it also perpetuated the old boys, private schools, Oxbridge networks. These networks held control over the meaning of a suitable profile of a judge. The 2005 reform increased transparency in judicial appointments and paved the way for greater diversity.^{Footnote 76}

The relatively closed nature of the elite judicial networks facilitates membership only for candidates who have earned the trust of the existing members. The strong sense of professionalism among judges translated into their authority to identify the boundaries of legitimate judicial behavior. Although ethical standards became formalized in England and Wales, primarily due to international triggers and the domestic push to increase public trust, the Guide to Judicial Conduct contains only a set of core principles.^{Footnote 77} It remains largely the task of judges to give meaning to general rules. Disciplinary issues are resolved mainly informally, so that formal actions do not spoil personal relationships.

Until recently, common law judiciaries relied on largely informally governed judicial careers. Appointing by tapping on shoulders and disciplining through chats over tea cemented the highly cohesive judiciary built around shared values and perceptions of the judicial role. The judiciary attracted highly qualified legal professionals, ensuring effective decision-making, and courts generally enjoyed solid public trust and the perception of their independence. Nevertheless, with the gradually increasing significance of good governance principles, highly informal systems started facing challenges in terms of transparency and diversity. Cohesive interpersonal networks tend to include members with shared characteristics—elite universities’ alumni, older men, etc.—and basic worldviews. A greater emphasis on overall openness, resulting in a considerably more diverse judiciary, may jeopardize the judiciary’s cohesion, especially if accomplished exclusively by the adoption of formal rules.

Even jurisdictions with largely informal decision-making influence on judicial appointments and disciplining may promote diversity and transparency. These require an environment of trust which manifests itself on several levels. First, the decision-makers, the judiciary, and the public should believe that diversity and transparency are values worth pursuing. Second, the public and the judiciary should trust that the decision-makers will adopt non-arbitrary decisions, even without formal rules. The informal option, in contrast to formalization, provides the decision-makers with the flexibility to devise solutions best fitted to the situation. Nevertheless, such a system requires general trust that decision-makers will be able to do so and will not misuse their flexibility. These conditions in practice appear only in certain types of regimes. Endowing individuals with great powers in fragile regimes could lead to a dramatic deterioration in the fundamental values of judicial systems.

Formalization in contemporary jurisdictions is not binary (formalized or not); instead, we observe degrees of formalization. Some countries set only basic parameters using formal rules—typically, Ireland and England and Wales—while others adopt detailed laws, typically civil law jurisdictions.

Informal institutions emerge also in generally more formalized jurisdictions. They usually fill in the gaps left by formal rules, while in highly informal jurisdictions formal rules were missing or only rudimentary. The following paragraphs give examples of informality in judicial appointments and promotions. Informal practices manifest themselves, for instance, in considering certain traits, such as sex or ethnicity, to be represented in the judicial body, in giving various political actors a voice in the appointments, in procedural innovations, or in more demanding criteria on judicial candidates than are set by law.

Positive examples of informal judicial institutions from highly formalized jurisdictions include judicial appointments in the Constitutional Court of Belgium, where the Court’s composition should respect the ideological composition of society.^{Footnote 78} Such an approach to filling vacancies on the Constitutional Court arguably enhances the legitimacy of the Court without compromising its output in terms of effectiveness, efficiency, and quality. In Germany, informality serves as a tool of coordination among elites, which helps to prevent the politicization of the judiciary and thus preserve its independence. The political desire to create and maintain a non-partisan Constitutional Court is reflected in the appointment process based on an informal system of alternating nominations of candidates by major mainstream political parties. This system will guarantee a democratically balanced, stable Court.^{Footnote 79}

Between 1992 and 2015, a judicial informal institution in Israel contributed to safeguarding political diversity in judicial appointments.^{Footnote 80} The opposition had a say in judicial appointments by reserving at least one seat from the two available seats, which on the Knesset held in the Selection Committee. This informal practice contributed to the depoliticization of the selection process, and the related preference for merit over ideology, promoting independence and efficiency.^{Footnote 81}

Until the 2022 reform, Czech laws on the governance of the judiciary—especially concerning decision-making on the crucial moments in judicial careers—such as appointments and disciplining, have left ample space for informal filling-in practices due to a lack of regulation of important details. The space, which provided court presidents with significant leeway when choosing judges for their courts, led both to a competitive merit-based system of appointments at some courts, and to non-transparent appointments at others.^{Footnote 82} Such a system depended to a large extent on the person in charge. The 2022 reform incorporated into law many elements that developed informally as good practices, such as the written test, interview before a five-member panel, and optional probationary period.^{Footnote 83} Vague laws provide opportunities for informal experimentation. When more solutions develop, the most promising one can subsequently be formalized.

The Israeli judiciary developed an informal procedure to safeguard the quality of judges wishing to be promoted to the District Court. In 2007 the Supreme Court President established a two-member committee to assess the rulings of Magistrates’ Court judges looking for promotion. Twelve years after creating the committee, the Supreme Court President issued a directive that formalized the successful informal institution helping to guarantee the professional credentials of the promoted judges.^{Footnote 84}

Some positive informal institutions emerged in judicial appointments to the apex courts. Vague legislation provides for flexibility, which in Canada led to the introduction of the informal system of consultation in Supreme Court appointments, arguably preferable to a less flexible, formalized nomination system.^{Footnote 85} The vague legal underpinning for the appointment of Czech Constitutional Court’s judges facilitated a noteworthy informal innovation. The President of the Republic has the exclusive power to nominate constitutional justices. After some problematic—arguably, clientelist—nominations in the past, the new President in 2023 introduced an expert panel to perform a preselection for him. This practice of consulting experts when choosing candidates signifies a move towards a more structured system, which reduces personal arbitrariness and bolsters merit. The preselection practice conforms to the law and has the potential to bring benefits, without creating overriding costs.

Sometimes, informal institutions tighten formal rules to deliver better results, what we earlier described as a “tightening” scenario. India’s Constitution prescribes three clear formal criteria to be fulfilled by candidates for a vacancy on the Supreme Court. Yet, informal practice has set the thresholds for eligibility much higher.^{Footnote 86} The informal eligibility criteria include expectations of a greater age than formally required to guarantee the candidate’s maturity, greater seniority which promises experience, and making allowances for diversity to increase legitimacy.^{Footnote 87} Chandrachud problematizes this informal practice because it is not clearly defined, and hence, susceptible to arbitrary application. Moreover, informal institutions suffer from a democratic deficit because they do not undergo traditional democratic deliberation, including public debate.^{Footnote 88} While conforming to the law, the informal practice means that some eligible candidates will not be considered. To be evaluated as a positive example of informality, such a solution must have clear benefits for the fundamental values of judicial systems, in this case manifested especially in the efficiency and quality of judging.

II. Positive Informal Judicial Institutions in the Organization of Judicial Decision-Making

This subsection deals with informality in judicial decision-making and its organization. Jurisdictions differ in the level of detail in rules on who should judge the cases and how. Case assignment provides particularly interesting material for studying informal practices.

Case assignment in England and Wales exhibits the filling-in-gaps type of informal practices in the parts of the process that in some continental jurisdictions are covered by detailed laws. For example, case assignment in the Court of Appeal remains largely informal and pragmatic. The practice shows that legal specialization serves as the first consideration when case allocation is being decided on. Judges overwhelmingly do not dispute the decision on case allocation.^{Footnote 89} While legal specialization should ensure expert treatment of the case, the following open exchange of opinions on the assigned judge’s draft prevents the danger of the professional blindness of a narrow specialist’s perspective. Such a practice arguably improves the quality of decisions. The practice relies on mutual trust. The court president assigns a case to the judge, who the president believes is best positioned to decide the dispute. And the legal ecosystem trusts the court presidents to manage case allocation well, in a non-arbitrary fashion.

Similarly, Israeli court presidents enjoy wide discretion in court management, including the allocation of cases. Seniority plays an important role in the Supreme Court’s case allocation as the longest-serving judges decide the most significant cases.^{Footnote 90} In contrast, continental jurisdictions tend to limit the autonomy of court presidents for fear of misuse of their powers resulting in rigged case allocations.

Separate opinions provide fertile ground for informal judicial institutions. The Criminal Division of the Court of Appeal of England and Wales, in contrast to its Civil Division, developed an interesting informal practice of not issuing dissenting opinions, possibly so as not to give the impression that a switch of just one judge’s opinion might completely change the convict’s fate. Given the context, such an informal institution may be regarded as a positive example.^{Footnote 91}

The German Constitutional Court judges can formally issue separate opinions. Yet in practice, informally, justices refrain from pushing forward their dissenting opinions. Once they announce the intention to draft a separate opinion, the Senate plenary discusses the issue and seeks to find a consensus. Deliberation remains strictly confidential, hence, a change in the judge’s position does not create any reputation costs. The pressure on consensus suppresses the individual visibility of judges. The deliberative culture promotes intense yet respectful discussions behind closed doors. When a judge loses an argument, the public will not know. The lack of transparency protects judges from undue influence. In particular it prevents judges from pushing partisan positions. Informality here serves as a shield against politicization and protects judicial independence. Informality cultivates loyalty, reciprocity, consensus-seeking, trust, and continuity. The Constitutional Court has managed to promote a communitarian spirit based on many informal practices, for example, respecting the seniority principle when assigning issue areas, allocating offices, or in the sitting order. Nevertheless, this comes at the cost of limiting access and reducing transparency. Public and non-mainstream political opinions are excluded. In response to the non-inclusivity critique, the practices gradually change.^{Footnote 92}

The Netherlands Supreme Court enabled members of multi-judge chambers to sit in deliberations on cases assigned to formations they were not part of within the chamber. This practice was aimed at ensuring legal uniformity within the chamber concerned.^{Footnote 93}

Interestingly, judiciaries in non-democratic or non-liberal jurisdictions also develop positive informal judicial institutions which impact fundamental values of liberal democratic judicial systems. Informal institutions can protect against attacks on the judiciary or help to improve the quality of judicial decision-making. Justices of the Supreme Constitutional Court of Egypt tended to leave some highly sensitive political cases on the docket as a counter-threat against the intrusion by politicians. They warned the regime that if the Court’s independence was curtailed, they would retaliate by delivering adverse rulings in those sensitive cases.^{Footnote 94}

A recent court reform in China abolished the approval process, whereby court superiors co-signed judicial opinions. It also sidelined the adjudication committees, which were comprised of panels of court leaders deciding high-stakes cases. In reaction to these developments, many courts informally established “conferences of professional judges” on various areas of law to provide judges with advice. When a case is too complex or the judicial panel disagrees, then the judges can submit it to the judicial conference for non-binding opinions.^{Footnote 95} Such an informal solution supports the uniformity, quality, and persuasiveness of judicial decisions.

III. Positive Informal Judicial Institutions in Judicial Off-Bench Activities

Literature has only recently started paying attention to the off-bench activities of judges.^{Footnote 96} The recent wave of rule of law backsliding spread attention from non-democratic/illiberal jurisdictions also to EU countries. The off-bench activities discussed here include those in three main areas: (1) Off-bench resistance to political overreach, (2) domestic political networking, and (3) judicial networking and awareness-raising.^{Footnote 97} Some informal judicial institutions employed as a defense against attacks on the judiciary may be evaluated positively in the given situation but be deemed unacceptable in the absence of such attacks.