Sociologies of Formality and Informality by adriana mica jan winczorek rafal wisniewski

Author:adriana mica, jan winczorek, rafal wisniewski
Language: eng
Format: epub
Published: 2018-07-04T16:00:00+00:00

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Hans-Joachim Lauth

Rule of Law and Informal Institutions

Introduction

Over the course of the widespread third wave of democratization, a key observation has been made frequently: The introduction of elections alone does not guarantee a functioning democracy. The main indicators used in this determination are weak rule of law and a lack of checks and balances due to an unsatisfactory level of institutionalized, horizontal accountability (O’Donnell 1998; Schedler, Dia­mond and Plattner 1999). Additional criteria, which are present in modern, Western constitutional states, must be met. Unsurprisingly, O’Donnell (1999; 2004) explicitly urges that the existing foundations of democracy in the West and the implicit requirements of democracy should be identified and analyzed. He considers the concepts of Rechtsstaat, rule of law, and the constitutional state (or constitutionalism) to be essential to the analysis. For this reason, the fundamental constitutional order, rather than system of government, is addressed. This applies to the legal form or the judicial system, the basis for governance, in which state activity manifests itself. The analysis of systems of law is relevant not only to democracies, but also to authoritarian regimes, because it sheds light on their dynamics and stability. Investigating both kinds of regimes leads us to the following questions: Do legal systems always have characteristics of the rule of law, or in some regimes, do they possess only an instrumental nature (“rule by law”)?

Passing references to missing or limited rule of law are not sufficient to gather differentiated empirical findings. In order to appropriately integrate the legal level into the analysis of young democracies, as well as authoritarian regimes, this article employs a dual perspective. First and foremost, it allows different characteristics of formal legal structures to be examined. Moreover, by employing the neo-institutionalist understanding of informal institutions (Lauth 2000; Merkel and Croissant 2000), strong emphasis can be placed not only on legally codified institutions, but, at the same time, existing informal structures can be taken into account. Both are relevant to the analysis and have to be considered, as not all judicial systems are regarded in the analysis of official legal systems. Informal law and systems of rules are not systematically included in the analysis of rule of law up to today. The connection between formal and informal legal systems has not been appropriately addressed in the current literature on the topic of democratization; even comparative research on the development of rule of ← 149 | 150 → law is rare (Fukuyama 2010). There are numerous case studies, however, which investigate special forms of informal systems (such as indigenous and religious law or corruption and violence in the research area of rule systems; Brinks 2012).

The analysis of formal and informal law structures allows the empirical findings to be differentiated and assessed. In using this approach, the following questions emerge and allow this article to be structured into corresponding chapters:

• What is the nature of law and legal systems? What distinguishes them from rules and informal judicial systems?

• What are the core principles of Rechtsstaat and of

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