Informality and Judicial Institutions: Comparative Perspectives

The aim of the workshop Informality and Judicial Institutions: Comparative Perspectives is to explore the role of informal networks in judicial systems as around the globe, in particular outside of the realm of Western established democracies. These networks may be based on common political interests, ideas, social relations , or even clientelistic obligations.

Decades after a wave of democratization swept through non-Western countries it is clear that courts have become central to political life. But, despite the growing academic attention directed to this phenomenon (see, among others, Brinks and Blass 2017, Chavez 2004, Dressel 2012, Helmke and Rios-Figueroa 2010, Kapiszewski 2012, Moustafa 2007, Sieder et al. 2005, VonDoepp 2010), there is still considerable debate about whether, to what extent, and under what conditions courts act effectively as a mechanism to hold political authorities accountable and thus fulfill the expectations generated by institutional reforms. Moreover, in recent years, earlier expectations about courts as champions of liberty in developing democracies seems to have been replaced by more cautious, even skeptical, accounts. Actually, in several countries, judicial systems have actually failed to contribute to consolidate democracy or, even worse, have become tools of political elites in the context of hybrid regimes (see Ellett 2013, Hammergren 2007, Popova 2012, Trochev 2008).

One of the most important questions in this respect is how to explain judicial behavior—why judges decide cases as they do, especially cases of major policy or political significance. Many theoretical models of judicial behavior have evolved in Western democracies, based on assumptions that travel only with difficulty outside of the West. For instance, traditional attitudinal models (e.g., Segal and Spaeth 1993, Segal 2002) have assumed that clear ideological positions shape the decision making of judges and courts, especially courts of last resort. Yet these positions are often ill fitted for many countries of the Global South where ideological cleavages may be absent or overshadowed by ethnic, religious and political fault lines (see, e.g., Gunther and Diamond 2003, Randall 2006, Chandra/Wilkinson 2008, Elischer 2013, Hale 2014, Stroh 2014). Similarly, judicial strategic models based on rational-choice institutionalism as it applies to experiences in the U.S. (e.g. Epstein & Knight 1998, Spiller and Gely 1992) and other Western-style democracies (Ramseyer 1994, Vanberg 2001) have been far less able to explain patterns of judicial behavior where institutions are weak and complex but informal practices introduce much greater uncertainty. The theoretical reach of the rational-strategic models is clearly limited.

As recent work on non-Western judiciaries has shown (e.g. Helmke 2005, Staton 2010, Popova 2012, Kapiszewski 2013, among others), a concern with formal institutional roles and arrangements alone is not sufficient. It needs to be complemented by attention to how informal arrangements function. These studies have highlighted the role of judicial networks as constituted, for instance, through peers, ideological communities, party alignments and other groupings in the United States (Baum 2010, Robinson 2012), Western Europe (Brouard 2009, Hönnige 2009), and beyond (e.g., Ginsburg and Garoupa 2009). However, while there may be growing recognition that informality should be taken more seriously, contributions related to non-Western regions have also illuminated a far more complex view of networks—one in which, for instance, ideational, identity-based or clientelistic networks may affect how judges behave (Ingram 2012, Llanos et al. 2014, Trochev and Ellett 2014). This lack of attention is puzzling, given the ample anecdotal evidence of the influence of networks operating within the judiciary in countries in Africa, Asia and Latin America (e.g. Verbitsky 1993, Vitug 2010, 2012, Gomez 2009, Trochev and Ellett 2014, Sanchez Urribarri 2011).

One reason for this lacuna may be that scholars tend to test the validity of theories of judicial behavior and other accounts that were originally developed to analyze decision-making of high courts in Western democracies, instead of conducting the intensive data-collection exercise that would make it possible to test the workings of non-ideological variables at play. There is also a methodological challenge to the understanding of judicial networks in that some patterns and incidents linked to them—such as politicized appointments, active linkages with political groups or individuals, judge-lawyer networks, not to mention abject corruption—are often difficult to conceptualize, measure, observe directly and document systematically. This problem is fairly common in assessing informal institutions and phenomena, both within the judiciary (Popova 2012) and more broadly (Helmke and Levitsky 2006; Brinks, Levitsky and Murillo 2020). However, as the growing literature on informal political institutions shows, this challenge needs to be overcome to understand a major source of the variation of the workings of judicial institutions cross-nationally, especially beyond the Western world.

The workshop aims to bring together roughly 15-20 leading scholars – both junior and senior – from very different parts of the world for 2 days (coinciding with the LSA conference in Lisbon). The goal is to finalize draft chapters earlier presented during a series of online workshops in 2021 for publication in an edited volume with a leading university press (e.g., Cambridge, Oxford) as the main goal (along with other outputs that could result from the workshop). Participation by doctoral students, and in house master students is also encouraged during the workshop – and will be advertised in due time via respective listservs (IConnect, LSA etc.). Contributions (working titles listed below) and peer discussions will be organised along the key themes outlined in this proposal.