Informal Judicial Institutions and Democratic Decay

Democratic decay has affected young, unconsolidated as well as long-established democracies all over the world, with judiciaries being often one of its first aims (Landau2013, Müller2017, Ginsburg&Huq2018, Mounk2018, Scheppele2018, Daly2019, Przeworski2019). Democratic decay is two-pronged. It consists of formal (executive-led) attacks on democratic institutions, and deterioration of informal norms and values that underpin constitutional democracies (Jakab 2020, Bird&McGee2022, Zgut 2022). Various examples of court-rigging practices from, Poland. Slovakia, Georgia or Ukraine showed that formal institutions protecting judicial independence are surprisingly weak and easy to hollow. Generally, the interaction between informal institutions within the judiciary with democracy and its values remains underexplored (cf. Pozas-Loyo&Figueroa2018, Dressel&Urribarri&Stroh2017, Harper&Colliou2022). While in some countries well-designed formal institutions do not function well owing to the existence of competing informal institutions (Popova&Beers2021, Pozas-Loyo&Figueroa2022), in other countries not so well-designed formal institutions operate smoothly because of the existence of corresponding informal institutions that fill the gaps in them and open arenas for building judicial resilience (Pierson 2000, Stephenson 2021, Sirota 2011). Informal judicial institutions thus may not only complement and accommodate formal judicial institutions, but also compete with or even replace them (Helmke and Levitsky 2006, Pozas-Loyo and Figueroa 2022). This in turn means that informal institutions may contribute to democratic decay or provide an additional layer of resistance against it. This paper sets to examine what role informal judicial institutions play in democratic decay and deterioration of European judiciaries. It explores the supranational influence on institution building, asking to what extent supranational blueprints pay attention to the dissonance between newly adopted formal judicial reforms and informal judicial institutions. The paper proceeds as follows. First, it offers a conceptualization of democratic decay in relation to the judiciary and independence of judges (both de iure and de facto). Second, it discusses various examples of informal institutions and practices which endangered position of judiciary in different European jurisdictions (golden parachutes in Poland, informal talks in Ukraine and Czechia, corruption networks in Georgia and Slovakia). Third, the paper focuses on strategies how to fight democratic decay particularly if the decay results from informal practices. It hypotheses what safeguards can be at place to defend democratic institutions against competing informal practices. Fourth, the paper argues that a necessary part of safeguards against democratic decay are “mental maps” of elites: internalization of formally institutionalized values by individual decision-makers and actors. The paper discusses how formal concepts that are “carriers” of values are translated into real behavior and agency of actors and raises a question who bears the accountability if this translation goes wrong.