imperfect rule of law in Latin America

Latin America’s newly established democracies do have a fundamental problem. This
problem is the rising crime rates and its connection to the rising distrust by the citizens of
Latin American states. This distrust and the rising crime rates are in a close relationship to
each other. They are the effect of an unequal society in which the state is overpowered by its
social and political problems; especially the lack of the rule of law is one of the fundamental
factors of this development. In order to illustrate the effect of the unrule of law on the
democratic state this essay is split into five parts.
First, this paper will define democracy, political violence, imperfect rule of law (IRL), and
further will show that crime is a fundamental problem in Latin America.
The second part will establish in which way the IRL and the executive mutually depend on
each other. Further, the IRL and the executive incapacity to tackle it lead to distrust between
citizen and state.
The third part of this essay will establish a link between the IRL and the legislative branch of
the government. This will include how certain parts of the ruling elite does profit from the
imperfect rule of law. Moreover, there is a connection between a legislative which can not
perform properly and crime rates.
Fourthly, this work will highlight the inability of the judiciary to effectively tackle the
problems of the rule of law in Latin American countries. These developments lead to the set
up of non state agencies which threaten democracy.
Finally, this paper shows that the inability of the state organs to tackle the IRL combined with
a helpless civil society leads to the coercion and failing legitimisation of the democratic state.

This essay aims to demonstrate that the IRL corrodes and effectively undermines democracy
itself.
Such an ambitious goal can just be partly reached due to the limited space of this paper and
the complexity of the topic.
The IRL, democracy and political violence
In order to establish a coherent discussion, a definition of the most fundamental terms is
needed.
The term IRL or unrule of law can be understood as a inversion of the term rule of law. The
Oxford Dictionary defines rule of law as a doctrine, deriving from theories of natural law, that
in order to control the exercise of arbitrary power, the latter must be subordinated to impartial
and well-defined principles of law (Oxford 2008). This definition is too complex, because a
discussion of natural law would be needed whereas the definition of Konings & Kruijt is more
sufficient for the purpose of this papers argument. The rule of law presupposes the effective
monopoly of collective means of coercion in the hand of the democratic state (Konings &
Kruijt 2004: 5). This definition leads to the need for a definition of the term democracy.
Dahl’s definition states that a democracy consists of elected representatives, institutions
which provide free fair and frequent elections, the freedom of expression, the provision of
alternatives sources of information, the associational autonomy and an inclusive concept of
citizenship (Dahl 2000: 92). Additionally, and for the sake of this argument, this work states
that a democratic state is made up of an executive, legislative, and judiciary. One of the
results of a democracy which suffers from an underdeveloped rule of law is political violence.
An act of violent is political when it involves the actual or potential violation of someone’s
basic right and is therefore illegitimate (Graham & Newnham 1998: 560).

At this point of argument, proof for the IRL inside a democracy is needed and given by
Pinheiro.
“In Brazil as in many Latin American countries, there is a dramatic gap between the letter of
law and the brutal reality of law enforcement. This gap (…) is rooted in one of the most
important cornerstones of democracy: the state monopoly of the means of coercion” (Pinheiro
1996: 17, 18).
Other authors agree and note that there was an explosion of crime in recent years (Foweraker
& Krznaric 2002: 6). Further, the United States Agency for International Development states
that Latin America's crime rate is double the world average, and indicates that this high
incidence of crime is taking a toll on the region's economic development and public faith in
democracy (USIIP 2008).
These indicators do underline the statement that there is an actual relation with the IRL and
the democratic performance of Latin American states. In order to analyze this relation an
examination of the democratic state’s institutions is needed.
The IRL and the executive branch
One can say that the executive branch is the most responsible for and the most affected by the
IRL. The police are responsible for the enforcement of the rule of law inside the nation state.
Unfortunately, the police in Latin America are mostly incapable to perform this task. For
example, the Brazilian military police is among the most deadly on the planet with 1470
civilians killed in Sao Paulo alone in the year 1992 (Pinheiro 1996: 19). Another example is
given by Roger Plant: Over one thousand assassinations have been reported in the "Grand
Carajas" (Brazil) region alone over the past two decades, while only eight cases have been
taken to trial and only six murderers incarcerated" (Plant 1999: 101). All these examples

show that the police are overwhelmed by its task. This is also due to the fact that “ (…) most
of Latin American police forces are under-staffed, under-paid, and easily outgunned by
criminals, especially organized drug gangs that are flush in cash and therefore very wellequipped“
(Weyland 2003: 10). However, these factors lead to a certain hopelessness of the
police to fight crime effectively. Therefore, police forces use illegal methods to persue a form
of justice which is not sanctioned by the state and therefore undermines its performance. This
is also concluded by Weyland:
“Since police forces often fail to see effective results when they apply their officially
sanctioned methods, they are tempted to use illicit methods that seem to produce more direct,
visible results, namely excessive violence, torture, and the informal death penalty” (Weyland
2003: 11).
These actions also include death squads which are used to bring ‘justice’ to certain areas of
the country where the normal police could never effectively bring justice to. The citizens are
aware of these illegal methods used by the state organ which is meant to protect them from
injustice. Hench, they feel threatened by their own state. The phenomenon that citizens do
not trust their own police and that they do see them as a major part of the crime problem is
present in the whole of Latin America (Weyland 2003: 12).
People see the police as a defender of the gap between rich and poor (Pinheiro 1996: 20)
which favours the rich and randomly punishes the weak and poor. The actions of the police do
not just undermine the democratic state which is based on the rule of law, but also leads to
people perceiving that a democratic state is not able to protect them from violence and is not
able to give them justice. This thinking affects the legislative.
The IRL and the legislative branch
The power of the legislative in a democratic state and its legitimacy are deeply influenced by

the IRL. The presidents of Honduras and El Salvador, for example stated that their problem
with crime is comparable to the problem the United States has with terrorism (USIID 2008).
(Costa Rica can be regarded as the only real exception to the common feature of the unrule of
law in Latin America (Calleros 2005: 52).)This hints towards the conclusion that politicians
suffer under the high amount of crime in Latin American countries.
This conclusion however would be rushed and without a deep analysis of the interdependence
of organized crime and the elites. There is still a very big amount of political violence today
which is not as big as before the third wave of democratization but nonetheless is comparable
(Mendez 1999: 20). This political violence is not uncoordinated or different from the political
violence between the times when dictators ruled Latin America. This continuity of political
violence suggests that, notwithstanding the political transitions to elected rule, the
authoritarian regimes of the past and the new civilian democratic governments are barely
differentiated expressions of the same system of domination based on the IRL by the same
elites (Pinheiro 1996: 20). Therefore it can be seen as part of the political process in Latin
America which is clearly not legitimate (Calleros 2005: 52). This political process, no matter
violent it is, goes against the rule of law and the fundamental democratic ideals of justice.
Of all the forms of political violence the most worrying are the cases of deaths squads which
kill people trying to break the monopoly or are in the way of the elites. Some can be seen as a
positive because these death squads are the only (illegitimate) institution which can break the
circle of violence in certain regions of Latin America. This positive view assumes that one
has already accepted that the only way to stop the violence is by illegitimate means which
goes against the rule of law. The negative view sees the close ties between these death squads
and former military and police personal (Weyland 2003: 12). Therefore, this view supports
the argument of Pinheiro that the old elites use this tool to sustain their power. Further, the
executive forces are not accountable to the government which leads to a system in which

oligarchic actors may protect their interests through illegal actions by the police or the
military (Foweraker & Krznaric 2002: 19). This is best summarised by Juan Carlos Calleros:
"Typically, this happens in Latin America, where the rule of law is frequently replaced by the
oligarchies unwritten laws, by local caciques will and by political networks. In this case,
individual rights are not always respected and minority rights are ignored, in favor of the
oligarchies interests“(Calleros 2005: 46).
However, this is not the only way in which the legislative branch of the democracies in Latin
America is undermined.
There are also the crimes committed by the lowest classes in society which threatens
democracy. The causes of this crime epidemic of the lower classes in contemporary Latin
America are the "employment problems resulting from volatile and mediocre growth and
from neoliberal reforms such as trade liberalization and state shrinking. These employment
problems are particularly pronounced--and especially crime-producing--in the area of youth
unemployment” (Weyland 2003: 4). These economic reforms combined with high inequality
lead to an economic polarisation which aids the economic stagnation. The economic
globalisation further imposes stringent constraints on the already weakened governments,
making it highly unpromising and counter-productive to pursue expansionary economic
policies or enact extensive public works programs or other artificial employment creation
projects (Weyland 2003: 9-10). All these forms of crime together with the legislative’s
inability to do its task leads to a perception of the citizens that their government wants to
sustain itself and not serve the people who have elected them.
The IRL and the judicial branch
The IRL in the executive and legislative could be balanced out if the judiciary would perform

well. Reason is that all these atrocities committed by criminals would be served justice when
put in front of a court. Unfortunately this is not the case as shown by Calleros:
“Apart from Costa Rica the judicial sectors of all other countries considered in this study
(Argentina, Bolivia, Brazil, Columbia, Chile, Ecuador, Mexico, Paraguay, Peru, Uruguay and
Venezuela) suffer from serious shortcomings in relation to aspects of corruption, their low
structural capacity to prevent or to correct the circumvention of legal practices, inefficient and
inaccessible court systems – that contribute to overcrowding and mistreatment of inmates-,
and the personal vulnerability of judges and prosecutors to acts of violence and intimidation”
(Calleros 2005: 286).
A more specific example is given by Pinheiro who states that not a single assassin of the
1,542 trade unionists killed since 1986 has been successfully convicted in Chile (Pinheiro
1996: 21). This however is just one aspect of the IRL in the judiciary system which Latin
America suffers from. This injustice is disconnected between parts of the executive and the
judiciary.
Calleros states that there is a pattern in Latin America in which by constitutional law or by
amnesty the judiciary simply cannot bring the military into account for any crimes committed
by them. On top of this, the inability and corruption inside that judicial system gives the
military a good excuse to refuse any attempt to bring them in front of a civil court (Calleros
2005: 215-216). This inability together with the aspects of corruption, structural weaknesses
and the mistreatment of the court system does lead to a perception which further discredits the
democratic system. The perception of the people is that “(…) while better-off sectors “get
away with murder,” poorer groups lack effective safeguards against infractions on their
property rights and physical integrity” (Weyland 2003: 30). This point is also emphasized by
Calleros (Calleros 2005: 76). The inability of the state to bring justice forces the citizens to
make a decision between accepting the unrule of law or to take the law in their own hands.
The citizens are aware that the IRL both threatens the survival of neglected communities and

undermines the national interest which consequently creates informal systems to maintain
social order in Southern and Central America (Foweraker & Krznaric 2002: 4). This goes as
far as lynchings which now regularly appear in Brazil, Peru and Venezuela (Pinheiro 1996:
22). This creation of an informal legal system shows that the state is already undermined.
There is no more rule of law because the law is given by a weakened state and enforced by a
corrupt police. When however, a system exists which operates parallel to the judiciary then
the state does not have the legitimate use of force anymore and lacks moral supremacy as
well.
The IRL and civil society
The inability of the legislative, judiciary and executive to tackle the IRL has a devastating
affect on the civil societies in Latin America. First, it is important to recognise that the unrule
of law being embedded in a context of broad economic inequality and a system of damaged
social relations is not a new phenomenon (Pinheiro 1996: 18). It would be expected that the
third wave of democratisation in Latin America would not just improve the quality of life but
also would improve the rule of law. This was unfortunately not the case (Mendez 1999: 19).
It seems to be quite common to link this crime rate to the rising inequality. However, this
would be oversimplified as this paper has already established. Weylands research shows that
there is no direct link between a significant worsened income distribution and a substantial
increase in crime (Weyland 2003: 3). The reason for the high crime rate seams to be a number
of factors which are all related to the poor performance of the legislative, judiciary and
executive.
One factor is the neo liberal reforms implemented to boost the economy which leads to a
higher level of crime and human rights violations (Pinheiro 1996: 19). Another factor is the
political and state violence which is argued by Konings & Kruijt: “(…) state violence very
often recruits or provokes non-state violence (…) to do the dirty work or to occupy the spaces

created by the delegitimization of the legal order and the impunity that goes with it” (Konings
& Kruijt 2004: 7). This is a very important factor which plays in to the responsibility of the
three governmental branches mentioned above. This is not just the case for the lynch justice
practiced by non state actors but also lowers the ethical (or moral) boundary to attack the state
institutions and the abandonment of any social conscience. The latter is vital for the cohesion
of the civil society. Therefore, it is not astonishing that crime ranks among the most important
concerns facing the majority of the citizens in Latin American countries (Weyland 2003: 1).
A third factor is the violence accruing in isolated rural areas. This factor is one of the weakest
points of the democratic regimes in Latin America over the past two decades (Plant 1999:
101). Reason being that the isolation makes efficient control by state organs nearly
impossible. Furthermore, communities living in these isolated areas, which are mostly located
in the rain forest, have their own communal justice system which replaces the state system.
All these factors combined together with the corrosion of the state organs lead to a state
system which should not be considered democratic.
As soon as the rule of law is undermined the sovereignty of the people will be undermined as
well (Calleros 2005: 46). The sovereignty of the people together with the lack of legitimacy
of their state is some of the most important parts of a functioning democracy. The failure of
Latin American states to tackle non state agents and loss of the monopoly of violence allows
these states to fail (Konings & Kruijt 2004: 7)! This downfall of sovereignty, legitimacy, the
rule of law, the decomposed civil society and the special positions elites have inside the state
lead to a state which cannot be described as democratic.

Conclusion
The IRL undermines democracies all over Latin America. The three branches of the
government are most directly affected by the unrule of law. The executive branch is too
poorly equipped and not paid enough to tackle the crime rates in Latin America efficiently.
Most of the police and the military do get corrupted. In the eyes of the population the police
and military are part of the problem. This is especially the case when the military and the
police do not need to account to the legislative branch of the government. This
interdependence of a executive which is part of the crime rate and the negative perception of
the population regarding the executive branch leads to a mutual distrust which does not just
undermine the executive branch, the rule of law and the perception of state justice but also
makes a monopoly of force by the government impossible.
The legislative branch does partly cause the IRL because of certain elites which use illegal
means to sustain or broaden their power. This leads to mistrust between citizens and the
legislative. This mistrust affects the election process and therefore ultimately the legitimacy
of the state itself. The corrupted legislative consequently, does not care as much about the
citizens as about how much power, influence and money they make through their illegal
legislation. The negative sides of the state policies get even stronger when neo liberal policies
get adopted and consequently the welfare and educational system is affected.
The judicial branch is the part of the government which suffers most under the IRL. The
inability of the judiciary to tackle lawbreakers and corruption leads to two phenomenons.
Firstly, the rich and powerful dominate the poor in court. There is no justice for a poor victim
when the one who broke the law has enough money to buy him out. This means that there is
no equality in front the law which is a fundamental aspect of the rule of law in a democratic
system. Secondly, this inequality and injustice which the majority of the people suffer from

leads to a set up of a non state agent judicial system. This system leads to a state in which the
moral and legitimate use of force does not lie in the hand of the state anymore.
This unjust performance of the executive, judicative and legislative has dramatic implications
on the civil society and the democratic state. Due the inability of society to make its demands
heard, an explosion of violence and abandonment of the social conscience is made more
likely. The society is split between rich and poor. The state does not have the monopoly over
violence and can be regarded as illegitimate due to the set up of alternative non state actors
which provide the services the state does not supply.
These states can be regarded as a failed state in which democracy is not of importance
anymore; reason being that there is no justice. The people benefitting from the IRL are the
ones who hold the power in their hands. Therefore, a fundamental change is needed which
leads to a rule of law which does not undermine the democratic state is unlikely.

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