Informal Institutions and the Rule of Law: The Judicial Response to State Killings in Buenos Aires and Sao Paulo in the 1990s

Abstract

While its very persistence in the face of multifaceted crises is no small achievement, Latin American democracy in the last two decades has been criticized as incomplete, unconsolidated, and lacking in the rule of law.1 The region's legal systems have played a large part in this disillusionment for condoning corruption, favoritism, and the continuation of repression. O'Donnell captures this failure of universalistic democratic citizenship with his metaphor of areas.2 One aspect of these brown areas is the inability, to different degrees, of the justice systems in Brazil and Argentina to protect certain basic rights, as evidenced by the failure of their courts to punish the large number of police homicides that continue to be committed. The problem is serious. In 1992 alone the Sao Paulo police killed more people than the last military dictatorship did in the entire country in all its years of rule.3 Yet a policeman who kills someone in the course of routine policing in Sao Paulo has a 94 percent chance of escaping judicial sanction. Moreover, the complete answer may not be found in improving the organizational capacities of judicial institutions. Tens of millions of dollars have been spent on judicial reform programs to address the perceived weakness of judiciaries all over Latin America. Yet the consensus is that the monies spent on judicial reform have not led to a significant improvement in judicial services, and rights violations continue despite the proliferation of legal norms that purport to outlaw them.4 This paradox is made evident in the judicial response to state killings in So Paulo and Buenos Aires: while neither of the two legal systems is very effective, the apparently stronger institutions in the former coexist with a higher degree of impunity for rights violators. One of the arguments that have been proposed to explain democratic deficiencies in Latin America is that informal institutions contradict formal democratic ones.5 But despite valuable insights, insufficient attention has been paid both to the definition of informal institutions and to empirical analyses of their effect. This article offers a precise definition of informal institutions and evaluates one informal institution in an area vital to democracy, the enforcement of civil rights, and its effect on the judiciaries in Sao Paulo and Buenos Aires. The data are drawn from a sample of cases taken from the courts of So Paulo and Buenos Aires involving police homi