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Grant no. 101002660

Full title: Informal Judicial Institutions: Invisible Determinants of Democratic Decay

Principal investigator: David Kosař

Financed by: ERC Consolidator Grant

Duration in months: 60

The INFINITY project has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No. 101002660.

                                                                                                            

      

Mainstream literature on courts focuses on formal rules. Yet informal judicial institutions, ranging from bureaucratic norms to clientelism, often shape judicial performance strongly. These institutions may even facilitate democratic decay. For example, various “gentlemen’s pacts” between judicial associations may substitute formal rules governing selection of judges, entrenching patronage and vertical gender segregation. Politically savvy chief justice can tweak the formal rules and forge alliances with politicians. Other informal judicial institutions may counteract democratic decay. For instance, judges may team up with journalists and mobilize the public to defend the judiciary. Recent literature has acknowledged these phenomena. However, the range of informal intra-judicial and extra-judicial institutions and their effects are not yet fully understood, as the traditional doctrinal and normative scholarship is not able to capture them. INFINITY fills this gap and addresses the implications of this phenomenon for the “new” and “old” EU member states, and the neighbouring countries. The central research question of INFINITY is: How do informal judicial institutions affect functioning of the judiciary and under what circumstances they counteract or contribute to democratic decay?

INFINITY builds on a comparative legal perspective combined with sociological and political science approaches. INFINITY has four interrelated research aims: (i) to identify the most important informal intra-judicial and extra-judicial institutions in the “new” and “old” EU member states and in neighbouring countries; (ii) to assess the impact of informal institutions on European judiciaries, how they are created and under what circumstances they can be modified; (iii) to assess the influence of supranational organisations (the European Union and the Council of Europe) on the emergence and functioning of informal judicial institutions; and (iv) to develop a new theory of informal judicial institutions and their role in democratic decay (the overarching aim).

Overview of the INFINITY project: INFINITY’s 6 work packages (WPs) address these research aims as building blocks (see Figure below). Empirical WPs 1-5 build on case studies exploring informal judicial institutions and their effects in selected domestic jurisdictions. The selection of cases follows a different logic for each WP, depending on the WP’s aims . WP1 includes 16 individual case studies analysing informal judicial institutions in new EU member states, old EU member states, and non-EU countries. WP2 and WP3 cover 6 jurisdictions each, targeting countries with distinct experience with intra- (WP2) or extra-judicial informal institutions (WP3). WP4 jurisdictions are selected in order to cover countries which struggle with the participation of women in judicial positions in general (IE, UK) or in the higher echelons (CZ, GE), and countries with good representation of women in the judiciary at all tiers (RO, FR). Finally, WP5 studies the influence of supranational actors in three categories of post-communist countries: EU member states which are witnessing democratic decay (HU, PO, RO), an EU member state (CZ) which is not facing democratic decay, and a non-EU member state (GE) which is seeking accession to the EU as a control. Theoretical WP6 integrates insights from the empirical WP1-5 and develops a new theory of informal judicial institutions and their role in democratic decay. In what follows the content of each WP and their innovativeness are explained.


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