Informality as a Virtue: Exploring Positive Informal Judicial Institutions

Abstract

Most scholarly writings focus on the harmful effects of informal institutions. This article explores the positive influence of informal judicial institutions on the fundamental values of judicial systems. It develops a framework for assessing such institutions. The paper argues that the normative evaluation of informal judicial institutions is highly context-specific. Depending on their historical trajectories, different jurisdictions may emphasize different interests. Because of this, when evaluating informal judicial institutions, balancing the same values may yield different results in different jurisdictions. The recent trend towards formalization, supported by supranational institutions, goes hand-in-hand with the spreading narrative of good governance, emphasizing principles such as transparency or inclusion, principles that generally stand in tension with informality. This article cautions against emerging supranational templates insensitive to local practice.

Keywords

• Informal institutions
• informal practices
• courts
• judiciary
• rule of law
• democracy
• judicial independence