Society for Comparative Studies in Society and History

Democracy and Violence in Brazil Author(s): Teresa P. R. Caldeira and James Holston Source: Comparative Studies in Society and History, Vol. 41, No. 4 (Oct., 1999), pp. 691-729 Published by: Cambridge University Press Stable URL: http://www.jstor.org/stable/179426 . Accessed: 11/05/2011 12:39
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Democracy and Violence in Brazil

TERESA P. R. CALDEIRA Universityof Californiaat Irvine

JAMES HOLSTON Universityof Californiaat San Diego Democracy has expanded remarkablythroughoutthe world during the last of the twentiethcentury.In 1972, therewere fifty-two electoraldemocquarter racies, constituting33 percent of the world's 160 sovereign nation-states.By 1996, the numberhad risen to 118 electoral democraciesout of 191 states, or 62 percentof the total, for a net gain of 66 democraticstates.Among the larger countrieswith a populationof one million people or more, the numberof political democraciesnearly tripledduringthe same period. If it took two hundredyears of political change from the Age of Revolution to 1970 to generate about fifty new democraticstates, it has taken only ten years since the mid1980s to yield the same numberagain. This movementof political democratization has swept over every region of the globe, taking root in societies with very different cultures and histories, from Papua New Guinea to Botswana, the nature Brazil, and Bulgaria.In the one region where it has not transformed of nationalrule, the Middle East, it has neverthelessgenerateda plethoraof local democraticprojectsand debates.At the end of the millennium,democracy has indisputablybecome a global value adoptedby the most diverse societies. Although the new democratizationis overwhelmingly non-Western,the dominant theories and evaluations of democracy remain predicated on its Westernexperience. They remainespecially focused on the transformation of on electoral and their political systems regime change, competition, preconditions-that is a hallmarkof Westerndemocratization. Such political considerationsare certainlyfundamental. They establishthatmost countriesin Latin America, for example, have indeed become democraticin the sense that they arepolitical democracies.However, the problematicand at times perversedemocratizationsof LatinAmericademonstrate just as surely thatthe consolidation of democracyrequiressocial andculturalchanges which escape the analy'We derive these data on electoral democraciesfrom the annualworld surveys that Freedom House has compiled systematicallysince 1972. Althoughcrucialin its own right,we are criticalof the electoral approachin evaluatingdemocracy,as will become clear below. 0010-4175/99/4423-0446$7.50 + .10 ? 1999 Society for Comparative Studyof Society and History

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sis of this narrowpolitical perspective.Their difficulties stronglysuggest that, althoughnecessary,political democracyis not enough to securethe civil rights of citizenshipor producea democraticrule of law. Withoutboth, the realization of democraticcitizenshipremainsdisabled.It is increasinglyevidentin the new democraciesthat without this realization,political democracyloses its legitimacy andefficacy. It suffersnot only as a meansto framesocial interactionbut also as a mode of governance. The fundamentalproblemis that the form, substance,and developmentof the new non-Western democraciesusually differ significantlyfrom the canonized Euro-American experience. It is not only that their differenthistories rea different on the one hand, the global reach of quire approachto understand, on the its and, other, specificity in diverse culturalcircumstances. democracy It is also thatthese otherhistories suggest the need to revise many standard asabout democratization. for both the indemonstrate, sumptions They example, of democratic for elections democratic and the sufficiency realizing citizenship, limitations of a democratictheory based on elections for understanding this these other show democracies that the Furthermore, problem. spread,timing, and substanceof citizenship vary significantlyin differenthistoricalcontexts. Finally, they also reveal that the developmentof citizenship is never cumulative, linear, or evenly distributedfor all citizens, but is always a mix of progressive and regressiveelements, uneven, unbalanced,andheterogeneous-in short,what we call disjunctive. Above all, it is the widespreadconcurrenceof democraticpolitics and systematic violence against citizens in emerging democraciesthat reveals these limitationsof method and theory,and that requiresa differentconceptualization. This concurrencemeans that many such new democraciesexperience a similarand defining disjunction:althoughtheirpolitical institutionsdemocratize with considerablesuccess, and althoughthey promulgate constitutionsand legal codes based on the rule of law and democraticvalues, the civil component of citizenshipremainsseriously impairedas citizens suffer systematicviolations of their rights. In such uncivil political democracies,violence, injustice, andimpunityareoften the norms.As a result,uncivil democraciesundergo the delegitimationof many institutionsof law andjustice, an escalationof both of the poor, a significantinviolent crime andpolice abuse,the criminalization crease in supportfor illegal measuresof control, the pervasive obstructionof the principle of legality, and an unequal and uneven distributionof citizen rights.Narrowlypolitical definitionsof democracy-those thatignore the civil componentof citizenship and its constituentelements of justice and law in the real lives of citizens and states-overlook these dilemmas. betweenstate By the term"civil,"we refernot to the classic liberalseparation and non-state,political society and civil society, public and private,or to any such dichotomiesthattypically derivefrom the state/non-statedivide.2Rather,
2 These dichotomiesare usefully analyzedin Bobbio 1989:1-43.

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we use civil to refer to an aspect of citizenship, and citizenship to refer to the prerogativesand encumbrancesof membershipin the modernpolitical community.Developing T. H. Marshall's(1977) typology (but discardinghis progressive and cumulativehistory), we distinguishcivil componentsof citizenWe use civil ship fromtheirpolitical, socioeconomic, andculturalcounterparts. to specify the sphereof rights,practices,and values thatconcernsliberty,both negative and positive, andjustice as the means to all otherrights. With regard to liberty,the civil componentof citizenshipnot only securesits negativemeanings in the sense of guaranteeingthe autonomyof privateindividualsagainst the abuses of the state. It also secures liberty in the positive sense of rights to associate,assemble,andcommunicateamongprivateindividuals,who thusbecome associated individuals and thereby create the public sphere of society. With regard to justice, the rights, practices, and values of civil citizenship groundthe democraticrule of law. Throughthese principles of liberty andjustice, the civil componentrelates and regulatesboth society and the state-the latteras one of society's legally constitutedagents.This regulationcreatesa productivemediationbetween society and state that is ambiguous, not dichotomous: the civil sphere differentiates society from the political system by defending the former from the abuses of the latter;however, it also integratesthe two by utilizing statepower to confrontrelationsof inequalityand dominationwithin society itself, and to shapepeople into certainkinds of citizen-subjects.In the lattersense, therefore, civil democracy depends on the state's capacity to impose sanctions. Highlighting this ambiguousmediation,our use of the civil embracesa paradoxof moderndemocracy:althoughsociety needs protectionfrom the state, it is only within the frameworkof a statethatthis is possible. Thus, citizenshipis a comkinds of plex regulatoryregime by which the statemolds people into particular subjects,andby which citizens also hold the stateaccountableto theirinterests. We use the notionof "civil"to emphasizethis complex imbricationof stateand society throughcitizenship.3 One of our aims in this essay is to stress the importanceof the civil component of citizenshipin democraticprocesses and, therefore,in democratictheory. We do so by looking at what happenswhen this componentis systematicalbut underpolitical democracy.We focus on ly violated, not underdictatorship the case of Brazil to emphasize both the lived consequences of such violence against citizens under democracy,and its theoretical significance for understandingdemocraticchange. We consider a numberof consequencesin Brazil thatderive from the fundamental disjunctionof political democracyandthe violation of civil citizenship, and thatconcernthe individualbody, public space, collective rights, and the rule of law. We want to emphasize at the outset that these consequences are found in other political democracies, including those
3 For further discussion of the civil componentof citizenship,see Holston, forthcoming,particularlyChapter5.

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thatall thatareestablishedandnot generallyuncivil, for it is also our argument democraciesare disjunctivein the sense suggested above, at all times and in variousways. and unfortuWhatmakes Brazil exemplaryis thatit presentswith particular is characof that of the civil nate claritythe disjunction component citizenship democratiWhereas Brazil's democracies. of teristic many emerging political zation in the 1980s-after twenty years of military dictatorship-promised individualliberty,autonomy,and security,the actualitiesof everydayviolence against Braziliansproducecontinuingor even increasingvulnerabilityof the citizen's body. Many Braziliansfeel less individualsecurityunderdemocracy. WhereasBrazil's democraticconstitutionof 1988 is predicatedon the notion and accessible, a cultureof fear and suspiof a public thatis open, transparent, and cion has takenhold underpolitical democracythatproducesabandonment lawlessness of public spaces-their conversion into no-man's land-or their enclosure, fortification,and privatization.WhereasBraziliandemocracypresumes the rule of law, the institutionsand practicesof law andjustice are discredited and undemocratic.Their delegitimation demonstratesthat political democracy does not necessarily or automaticallygenerate a democraticrule of law. In the next section of the essay, we analyze these various violations of the civil componentof citizenship in the context of Brazil's currentpolitical democracy.In the final section, we develop the concept of disjunctivedemocraforms of democratthese contemporary cy as a means of betterunderstanding ic development. The empirical basis of this investigation derives from ethnographicresearchin the metropolitanregions of Sao Paulo and Brasilia, which we have, at varioustimes, conductedseparatelyand together.It derives dimensionof concernwith the performative especially from an anthropological social and institutionalrelations-that is, with the representative practicesand throughwhich these relationsareenacted,as well as with exemplaryparticulars the scripts, like democracy,that are supposed to provide a calculus for many sets of relations, and that people must performto gain the prescribedeffects. Ourintention,in this sense, is notjust to criticize the strictlypolitical definition of democracy,but also to suggest an anthropologicalperspectivein its study. the disWe do not insist on this intentionby calling attentionto it throughout civil comon the cussion. Rather,we try to demonstrateits force by focusing and of its the lived violation, by letting consequences ponentof citizenshipand these social practiceslead to a theoreticalargumentabout the disjunctivenatureof democratization.4
4 This we deliveredtogetherin 1994 and 1995. essay began to take shape in threepresentations The first was given at CEDLA (Centerfor LatinAmericanResearchand Documentation)in Amsterdam.The second was at the conference"FaultLines of DemocraticGovernancein the AmeriCenterat the Universityof Miami.The thirdoccurredat a meetcas," sponsoredby the North-South

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In recent years, Braziliansociety has producednumerousevents indicative of a disjunctivedemocratization. Some point to an expansion of democraticcitizenship, and othersto its erosion and degradation.Some indicatethe strengthening of democraticstate institutions,and others the dismantlingor "illegalization" of the state. Most frequently,events of contradictorymeaning are coeval. The expansion of democracyis suggested by the organizationof new social movementsthroughoutBrazil duringthe late 1970s and 1980s, the proliferationof NGOs in the 1990s, the revitalizationof tradeunions, and the organizationof variousinvestigativecommissions by the federallegislature,one of which provoked the 1992 impeachmentof PresidentFernandoCollor de Mello for corruption.There have also been regular,lawful, and generally unproblematicelections at all levels of government,andthe creationof numerous new political parties, including the PT, the Workers'Party.Events indicating the degradation of democracyinclude the rise in violent crime, police violence, and humanrights abuses, all of which increaseddramatically after the institutionalizationof democraticrule. This dismal recordof violence againstmostly innocent and unarmedcivilians includes the massacre of indigenous populations, peasants,ruralleaders (like Chico Mendes), streetchildren,adolescents in poor urbanneighborhoods,and prisoners (as in Sao Paulo's Casa de Deprisonersin a 1992 prisonreten;ao, where militarypolice killed 111 unarmed Police violence has reached bellion). unprecedentedlevels, and the forces of law andorderarethemselves one of the main agents of violence in many cities. Various police forces are plagued by corruption,entangled with organized crime, and accustomedto violent and illegal methodsof action. Withthe increasein criminalandpolice violence, public space in manycities has become characterizedby muggings, assaults of various kinds, shootings, drug traffickingand addiction,violence in traffic, and a general scofflaw attitude. Violence of one sort or anotheris a common experience of daily life. As a result, a cultureof fear and suspicion has takenroot, giving supportto extraordinaryand often extra-legal measures for dealing with violence and crime. For example, cities such as Rio de Janeirohave enactedpolicies that are questionablefrom the point of view of democraticconsolidation.One of these was OperagaoRio in 1994, duringwhich the armywas sent into the city of Rio de Janeiroin an effort to control violent criminal activity. People applaudthese militaryoperations.They also supportillegal andprivate"actsof justice," such
e OrdemPublica"sponsoredby theAssociacao Nacionalde P6s Grading on "Direitos,Identidades uagco e Pesquisa em Ciencias Sociais (Anpocs) of Brazil. We would like to thankthe sponsorsof these events for their supportand encouragement.Ourpresentationat the Miami meeting in 1995 America, ed. Felipe Agiiero and Jeffrey Stark (Miami: University of Miami North-SouthCenter Press) 1998:263-96. We utilize some data and passages from these papershere.
was published in a volume of conference papers, Fault Lines of Democracy in Post-Transition Latin

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as the extractionof confessions throughpolice torture,and vigilante efforts to catch suspects. In all cases, the assertionof episodic ordersupercedesconcern for the institutionalorderof democraticlegal normsand procedures. Although people are ready to defend democraticproceduresin the political system by consistently supportingtrials of corruptpoliticians at all levels and defending free elections and political organization,they also overwhelmingly welcome actions like OperacaoRio. In the context of crime, fear, and the failure of the institutionsof law, people considerdiscussionsaboutthe legitimacyof the military occupationin Rio or the prison assaultin Sao Paulo-and the threatthey pose to the consolidationof democracy-largely irrelevant.They also consider that suspectedcriminalshave no humanrights to safeguard,and expect the police to respond to violence with violence. In what follows, we look more closely at severalkey elements thatdefine this perversityof violence underpolitical democracy. ViolentCrime In contemporary Brazil, violence against civilians is the domain in which the disrespect of civil rights and the failure of democratizationstrongly shape everyday social interactions.Since the mid-1980s, Brazilianshave perceived violent criminalityas the mainproblemaffectingtheircities. Not only has crime increasedin this period,but the type of criminalityhas also changed.Crimehas become moreorganizedandviolent, as the exampleof Sao Paulodemonstrates. Sao Paulo has one of the highest rates of violent crime in Brazil. These rates are also high when compared to many cities aroundthe world. In the early 1980s, violent crime representedaround20 percentof the total crime reported to the civil police in the metropolitanregion of Sao Paulo.5 Since the mid1980s, this percentagehas been higher than 30 percent,reaching36.3 percent in 1996. One of the crimesthatincreasedmost in the period 1981-1996 is murder (average annualvariationof 10 percent). In 1996, the rate of murderper hundred thousandpopulationreached47.3, a value significantlyhigherthanthe 1981 rate of 14.62.6 In the last fifteen years, the proportionof violent deaths (accidents, homicides, and suicide) in totaldeathshas almostdoubledin the metropolitan region of Sao Paulo, accountingfor 8.95 percentof deaths in 1978, 15.82 percentin 1991, and 14.11percentin 1993.7Since 1989, violent deathshave been the sec5 Although thereis no official definitionof violent crime, for purposesof statisticalevaluation we considerit to include murder, rape,attemptedrape,assaultand battery,robattemptedmurder, bery,and felony murder(latrocinio). 6 Rates of murder are based on the civil police recordsof reportedcrimes (boletinsde ocorrencia). 7 Data on violent deaths are from the death registry.The two main sources of murder rates are comthose of the police (reported crime) andthe healthauthorities(compulsorydeathregistration, Classificationof Disease categories).Althoughthe two sources piled accordingto the International registersimilarpatternsof growth,the differencesbetween them are high. Rates by the deathregistry are on averagearoundthirtypercenthigherthanpolice reports.For a complete discussion of violent crime statistics,see Caldeira(in press).

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ond highest cause of death in Brazil (afterrespiratory diseases), while in 1980 they were only the fourth(Souza and Minayo 1995:90). Murderis responsible for the significantincreasein violent deaths, since the proportionof other"external causes" in the total numberof deaths has remainedrelatively constant. While in 1978 murder caused 1.44 percentof the deathsin the city of Sao Paulo, in 1994 it caused 6.57 percent,an increaseof 356 percent.In 1994, murdersaccounted for 19.15 percentof the deaths of people between 20 and 49 years of age in the municipalityof Sao Paulo, becoming the main cause of deathin this age group.This rate is dramaticallydifferentfrom that of 1976, when murder accountedfor only 4.9 percentof deathsin the same age group.In 1994, 44.40 percentof the deaths of people aged 15 to 24 were caused by murder.During the 1980s, murdersincreased 80 percent among 10 to 14-year-olds (Souza 1994:49). In additionto murder'sincreasingeffect on the young (males more victims arepredominantly thanfemales), thereareindicationsthatmurder poor. the to Pro-aim data for most of districtsof the city of Sao Paulo 1995, According with the highest ratesof murder(ratesbetween 75 and 97 murdersper hundred thousandpopulation)were very poor. In contrastto this, the lowest rates (between threeandfifteen murders thousandpopulation)were in midper hundred dle or upper-classdistricts.8 The increasein violent deathsis not a patternof Sao Paulo alone. Homicide ratesincreasedin most Brazilianmetropolitan regions duringthe 1980s (Souza 1994:53-55). As a consequence,the homicide rates for Brazil (aroundten per hundredthousand),which were similarto those of the United States in the early 1980s, more thandoubledAmericanratesby the late 1980s. The U.S. homicide rateis historicallyquitehigh comparedto WesternEuropeanandJapanese rates.Duringthe periodfrom 1970 to 1990, Americanrateshave oscillatedbetween eight and ten homicides per hundredthousandpopulation,while European rates have fluctuatedbetween 0.3 and 3.5, and Japaneserates have remained at aroundone homicide per hundredthousandpopulation (Chesnais 1981:471). In other words, the contemporaryBrazilianhomicide rates above twentyarevery high indeedif comparedto theAmerican,European,andJapanese ratesin the last few decades. However,nationalrateshide local disparities, andmanyurbanareashave homicideratesconsiderablyhigherthanthe national average.In the case of Brazil duringthe late 1980s and 1990s, Rio de Janeiro, Recife, and Sao Paulo are the three most violent metropolitanregions, with homicide rateshigher thanforty per hundredthousandpeople.9
8 Pro-aim(Programade Aprimoramento de Informacoesde Mortalidadeno Municfpiode Sao Paulo) is responsiblefor the death statisticsof the city of Sao Paulo. 9 It shouldbe noted thatin the U.S., in 1993, some cities had muchhigherratesthanthese, while otherAmericancities had rates comparableor lower to those of Sao Paulo.Accordingto the FBI's UniformCrimeReportsfor the UnitedStates for 1993, some of the highest rates were in New Orleans (80.3), Washington,D.C. (78.5), Detroit (56.7), Atlanta (50.4), Miami (34.1), Los Angeles (30.5), New YorkCity (26.5). However, the Brazilianhomicide rates have oscillated much more than the Americanrates, and in many largeAmericancities these numbershave decreasedsignificantly since the early 1990s. It is hardto obtaincomparableinformationwith regardto otherthird world countries.Nationaldatacompiled by the United Nations on causes of deathare not available

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Anotherway of evaluatingthe increasein violence is to look at the registration of guns and reportsof illegal possession of weapons. The annualnumber of registeredguns purchasedin the metropolitan regionjumped from 9,832 in 1983 to 66,870 in 1994, an increaseof 580 percent.These numbers,however, are far from portrayingthe increase of weapons among the population,since the apprehensionof non-registeredguns has also increasedconsiderably.Police reportsof illegal possession of guns in Sao Paulo grew an average of 9.5 percent a year between 1981 and 1996. In 1996, the police registered5,563 cases of illegal possession of guns in the metropolitanregion. As reportedin the media, many of the apprehended guns are smuggled into the country and some (especially those used by drugdealers)aremorepowerfulthanthose used by the police. The increaseof gun possession correlateswith the fact thata highof homicides arecommittedwith them.Accordingto dataof death er proportion in registration, 1980, homicides by firearmsconstituted14.8 percentof the total of homicidesin Sao Paulo;in 1989, they were 31.2 percent(Souza 1994:55), and in 1992, 29.26 percent.The increasein the possession of guns indicatesnot only an increase in crime and violence, but also shows how Sao Paulo's residents are increasinglytaking the task of defense into their own hands, a practice we discuss later. In the daily life of cities such as Sao Paulo, an importantaspect of the increase in violent crime is what Caldeiracalls "the talk of crime,"a proliferation of everyday narratives,commentaries,and even jokes that have crime as their subject (see Caldeira,in press: PartI). This talk producesand circulates of crimethat andprovokingfear.The narratives stereotypes,bothcounteracting emerge in the course of the most diverse and common conversationsoperate with clear-cutoppositionsand essentializedcategoriesderivedfrom the polarity of good versusevil. They help to symbolicallyreordera world disruptedby way. Their experiences of crime. But they do this in a complex and particular causedby violence, andmediatesandprobothcountersdisruptions reordering of a system of distinctions,narratives liferatesviolence. More thanmaintaining crime createstereotypesandprejudices.They separatecategoriesof people and reinforceinequalities.In addition,the categoricalorderarticulatedin the talk of crime is the dominantorderof an extremelyunequalsociety.As such, it does not incorporatethe experiences of dominatedBrazilians-the poor, migrants from the Northeast,women, and others.Rather,it usuallydiscriminatesagainst and criminalizesthem. The talk of crime is a productivediscoursein the sense that it helps to producesegregation(social and spatial), abuses by the institutions of order,the negationof citizenshiprights,and,especially,violence itself.
for most African and Asian countries.LatinAmericancountrieshave had relatively high rates in the 1990s. Colombiahas one of the highest ratesin the world:74.4 in 1990. Brazil (20.2 in 1989), Mexico (17.2 in 1991), and Venezuela(12.1 in 1989) have the next highest. Data for LatinAmerica are from United Nations (1995:484-505) and refer to deathrates compiled by health authorities. Local situationsmay differ considerablyfrom nationalaverages.

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If the talk of crime generatesorder,it is not a democratic,tolerant,egalitarian order,but the opposite. It is not our intentionin this essay to determinethe underlyingcauses of the increasein violent crime and the breakdownof the institutionsof law over the past fifteen years. No doubt,the developmentof organizeddrugtraffickingand relatedpolice corruptionin Rio de Janeiroand Sao Paulo since the mid-1980s betweenBrazil'stremendous is an important factor.So, too, is the contradiction ranks eleventh wealth(its industrial amongall nations),and economy currently its distribution of income, which is one of the worstin the world.Madeexplicit to Braziliansby modernmass media, this gross inequalityis, surely,at the root of much violence. Nevertheless,our argumentis not aboutcauses, but correlations. Whateverthe origins of the increasein violence, political democracyhas not been able to deter it or even use its occurrenceto remakerelevantinstitutions. Rather,the violence has shown Brazilian democracy-and, perforce, Braziliansociety-to be especially weak in the areaof civil citizenshipandthe protectionof civil rights. In turn,this weakness generatesmore opportunities for violence to proliferate.Moreover,political democracyhas not been able to dispel the causal link that many Brazilians-especially those on the rightmake between democracyand violence: that is, that the institutionof democracy itself is responsible for the propagationof the new violence. This is not only because democracydefends humanrights for criminalsuspects and prisoners, therebysupposedlycreatingdifficultiesfor the police and incentives for criminals;it is also, so the claim goes, because democracy has destructured Braziliansociety by giving the masses a sense of political power thatconfuses their sense of social hierarchy-so much so that "peopleno longer know their place." Our argumentis that the response of a significantpartof the Brazilian elite to this perceiveddestabilization has been to criminalizethe poor-by camcrime paigning againsthumanrights, by flooding the media with narrativized stories, by investing in private security and private "justice,"by retreatingto fortified enclaves-and that this criminalizationalso contributessignificantly to the propagationof violence. Although the returnto democraticelections at all levels between 1985 and 1989, and the promulgationof a new Citizens' Constitutionin 1988 heralded the creationof a new nationalpublic sphere with new freedoms and forms of participationfor citizens, violence and the fear of violence have eviscerated public confidence. Although political democracypromised a new horizon of equality and fairness-a new sense of the futurefor Brazilians-its incapacity to deal with violence has eroded that horizon for many. It is interestingto note that this promise was bolsteredby the Cardosoadministration's successful reductionof hyperinflation in 1994 to practicallyzero. In theory,the end of rampantinflation should have expanded the sense of a productivefuture for working Brazilians. It should have created a new time-line against which to measurepersonaland family progress.But apparentlyit has not. In interview

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after interview with young adults who live in the peripheryof Sao Paulo, we found thatthey despairedof reachingthe normalizedgoals of theirparents,one symbolized by a family, house, and steadyjob. This combinationof reduced horizons is the context in which both violence and political democracydevelop in Brazil. Two other elements contributeto the experience of violent crime and fear thatframesthe everydaylife of Brazil's citizens: police violence and the inadequate response of the justice system. The failure of the institutionsof law to combat increasingviolence and the fact that those same institutionsoften add to the violence put the populationunderconsiderablestress. They contribute not only to increasingthe fear of powerlessness but also to justifying private measuresof protectionand vigilantism. ViolentPolice of violence A dramaticindicationof the role of the police in the reproduction betweenthe numberof people killed in Sao Paulois the dataon the relationship by the police and the total numberof murders.From 1986 to 1990, the police committed10 percentof the total numberof killings in the metropolitan region of Sao Paulo;in 1991, the percentage jumped to 15.9 percent,and in 1992 rose to 27.4 percent.A comparisonindicatesthe absurddimensionof these rates.In New YorkCity in the 1990s, the averagepercentageof police killings has been 1.2 percent,and in Los Angeles, 2.1 percent.Althoughpolice violence has diminished in Sao Paulo since 1993, with the rates back to the level of the late 1980s, no othercity in the Americasoutside of Brazilhas a comparablerecord of police abuse in the use of deadly force (Chevigny 1995). In Brazil, the police constitutepartof the problemof violence. Fromits creationin the early nineteenthcentury,the Brazilianpolice's practices of violence, arbitrariness, discrimination,and disrespect of rights have been well known.Althoughthe degree of police abusehas variedunderdifferent political regimes, duringthis entireperiodthe police have never abandoned the practices of unsubstantiated arrest,torture,and battering.These practices have not always been illegal, and they have often been exercised with the support of the citizenry,even of membersof social groupswho have been the police's preferredvictims. Throughoutthis period, differentgovernmentsissued "lawsof exception"to accommodateexisting delinquentpolice practices,or to cover them up. Although these laws were usually issued under dictatorships, they frequently survived under democratic rule. Thus, the legal parameters framingpolice workhave often shifted,makingthe boundariesbetween the legal and the illegal unstable, and creatingconditions for the continuationof a routineof abuses. The repressionof crime has targetedthe workingclasses in andhas frequentlymergedwith politicalrepression.The formulathat particular, the elites of the Old Republicmade famous has remainedin place: "Thesocial the poorersectorsof the popquestionis a matterof the police." Consequently,

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ulation in particular have unremittinglysufferedvarious forms of police violence and legal injustice.As a result, the poor have learnedto fear the police and distrustthe justice system. It is not necessaryto review the entirehistoryof the Brazilianpolice to make these points. However, discussing a few contemporaryaspects of this history will demonstrate the complicatedrelationshipbetween the police and the legal order.The militaryregime thattook power in 1964 reorganizedthe police. Decree 667 of 1969 unified all preexistingstate uniformedpolice into a statemilto the armyand chargedwith uniformedstreet itarypolice force, subordinated patrolling.The objective was to train and organize this new police force accordingto a militarymodel. At the same time, the civil police continuedto exand the judiciarypolice. The 1988 constituist, comprisingthe administrative tion preservedthe dual structure of the police forces afterthe end of the military regime. Both the civil and militarypolice forces are organizedat the state level and are underthe jurisdictionof the secretaryof public security.However, they have differenthierarchies,training,and recruitment procedures.In spite of theirunified authority, this dual organization constant rivalriesand generates conflicts between the two police forces. The two also seem to specialize in different types of abuses. As many human rights organizationshave shown, the civil police, who are in charge of investigations,tend to torturepeople under arrest,while the militarypolice are more likely to kill suspects.'? Rules governing the currentmilitarypolice include some laws of exception thatput them above the civil justice system. Decree-Law 1,001 of 1969-still in force-establishes that all crimes committedby militarybodies should be consideredmilitarycrimes andjudged by a specialmilitaryjustice, even if such offenses were committedin peacetime and in pursuitof civilian functions. In otherwords, since 1969 therehas been a specialjustice for the militarypolice. This exception became the norm with the constitutionof 1988. Writtenunder a democraticruleby a freely elected congress,the 1988 constitutionmaintained the militarypolice as the institutionin chargeof "theostensive policing and the of the public order"(art. 144, par.5) andthe militaryjustice as the preservation jurisdictionfor dealing with crimes committedby militarypolicemen. In May 1996, aftera massacreby the militarypolice (in Para,in northern Brazil), President FernandoHenrique Cardoso supporteda project in Congress that proposed that militarypolicemen be tried by civil courts. Nevertheless,this project did not win congressionalapprovaluntilAugust 1997 (Law 9299), andthen in a milder form. Its approvalin this form indicates the supportthatthe police enjoy, despite their violent nature.The new law shifts jurisdictionto ordinary courtsin murdersinvolving militarypolicemen and soldiers. However,all other crimes, including manslaughter and physical assault,remainin the military
10 See, for example,AmericasWatchCommittee 1987. Also see Pinheiro(1991) for one of the first analyses that demonstrates a patternof abuse by the militarypolice.

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system. The problemis that the right to characterizea killing as murderor as remainswith militarypolice investigators.Obviously,this limits manslaughter the impactof the law. Nevertheless,it is an indicationof the Cardosoadministration'sconcernto curbhumanrights violations, as we discuss below. Varioushumanrights groups have amassed considerableevidence demonstratingthatthe militaryjustice overwhelminglyacquits(or dismisses charges against) militarypolice officers accused of crimes againstcivilians. This evidence confirmsthatthe militaryjustice is rigorousas far as internaldiscipline is concerned,but lax if the questionis the murderof civilians. ' The conclusion is clear:this recordof acquittalor dismissal stimulatesan explicit sense of impunity among the police, and thereforeperpetuatesthe continuationof abuses associated especially with excessive use of force. As Paul Chevigny (1995) demonstrates in his analysis of police abuse in six cities in the Americas,a decrease of abuse is directly related to the enforcementof systems of accountability.When the police are not made accountablefor theirextralegalor illegal behavior, violence and abuse escalate. The legal exception that removes the Brazilianmilitarypolice from the civilian justice system of accountabilityincreases their impunityand their use of violence in dealing with civilians, and behavior. indirectlyassuresthem of a wide marginfor arbitrary These consequences can also be demonstrateda contrario, by analyzing cases in which accountability provokeda decline in police abuse.Therearetwo such examples from recent times. During the 1970s, membersof Sao Paulo's civil police organizeda famousdeathsquadcalled the Esquadrao da Morte.Because they were under the jurisdiction of the civil police, judges and public prosecutorswere able to bring them to trial-even under military dictatorship-and ultimatelyto dismantlethe squad.In recentyears,judges and prosecutors have also been able to enforce the articleof the 1988 constitutionthat considers torturea crime not subjectto bail or executive clemency.They have broughtcivil police officers to trial, and there are indicationsthat torturehas diminished somewhat in Sao Paulo's civil police precincts (Americas Watch Committee 1993:21). In sum, althoughunderdemocraticrule, the currentorganizationof police institutionslargely maintainsthat establishedby the militaryregime. This institutionalframeworkin large measureassures the impunityof extralegal actions by the police-especially the militarypolice, the principalrepressivepoI Centro Santos Dias, a humanrights defense group associated with the Archdiocese of Sao
Paulo,analyzed380 trialsat the courtsof the military justice from 1977 to 1983 (unpublished data). For these years, it found that of eighty-two police officers accused of murder,only fourteenwere found guilty (15.9 percent).Among forty-fourpolice officers accused of crimes against property, fourteenwere found guilty (31.8 percent).Finally, among fifty-threeofficers who faced trials for mattersof discipline, twenty-eightwere found guilty (52.8 percent).More recently,anotherstudy by the Nucleo de Estudos da Violencia from the Universityof Sao Paulo found that in 1995, from a total of 344 cases that reachedthe thirdAuditoriada JusticaMilitarof Sao Paulo, 58 resultedin convictions (16.9 percent),and 190 in acquittal(55.2 percent),while 96 (27.9 percent)were dismissed before going to trial (unpublisheddata).

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and lice force of the state. In this sense, insteadof helping to curbarbitrariness violence, the currentstructureallows space for these practices to proliferate. This situationreveals an especially significantpoint: usually,people associate abuses such as unsubstantiated arrest,tortureof prisoners,and killing of suswith authoritarian regimes. In Brazil, however,not only do police abuses pects continueto exist, but all dataalso indicatethatthey have reachedunprecedentedly high levels underthe presentpolitical democracy.12 Thereis, by now, a mountainof dataon police torture, battering,degradation of prisoners,and excessive use of deadly force. They show that the worsening of police violence in Sao Paulo and other Braziliancities coincides with the consolidationof political democracy.The numberof civilians who died in confrontationswith the militarypolice in Sao Paulo increasedconsiderablyin the late 1980s:it surpassed500 in 1989 and 1990, reached1,171 in 1991, and 1,470 in 1992 (includingthe 111 prisonersof the Casa da Deten9ao).A special division of the militarypolice called ROTAcommits a significantnumberof these ROTAwas createdduringthe militaryregime (1969) killings. Not surprisingly, to fight terroristattacks,especially bank robberies,in the metropolitan region of Sao Paulo. A few comparisonshighlight the absurdityof the numbersof killings. In 1991, when the militarypolice in Sao Paulo killed 1,171 civilians, the New York City police killed 27 people in confrontationsand the Los Angeles City police killed 23. In 1992, the numberswere 24 in New York,25 in Los Angeles (Chevigny 1995:46, 67), and 1,470 in Sao Paulo. The Sao Paulo killings suggest somethingmore like a civil war or a regime of terrorthananything resemblinga democracy. The civilian deathsin Sao Paulo cannotbe consideredaccidental,or a result of the increasedviolence by criminals,as the militarypolice claim. If the latter were the case, we would expect thatthe numberof police killed would also increase. But this has not happened.Although high when comparedto the U.S. statistics, the numberof Brazilianmilitarypolice killed in confrontationshas stayed more or less stable during the 1980s and 1990s, averagingthirty-nine of civilians killed in Sao Paulo in relationto peryear.Moreover,the proportion those woundedis completely abnormal.Usually,the police wound many more thanthey kill. Duringthe 1980s and 1990s, for each civilian killed in New York, an average of three were wounded;in Los Angeles, the ratio was 1 killed to 2 wounded.Yet in the metropolitan region of Sao Paulo,4.6 civilians were killed for each personwoundedin 1992 by the police; in 1991, the ratiowas 3.6 killed
12 One might argue that this increase is artificialbecause censorshipwas effective undermilitary dictatorshipand curtailedinformationabout police abuse. Under democraticrule, this information is readily available in the everyday media. It is true that much more of this kind of information is accessible today and statistics are better, though still far from reliable. However, accordingto every availablecomparativeindex, it is indisputablethatnot only have the victims of police abuse changedfrom political to civilian, but also the numbersof victims have risen dramatically in recentyears.Moreover,frequentmediaexposureof violent police actionshas usuallygeneratednot condemnation,but supportamong the populationat large.

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to 1 wounded;for otheryears in the 1980s and 1990s there was an averageof more than two deaths for each person injured.These data indicate that the police in Sao Paulo and in other Braziliancities-such as Rio de Janeiroand Recife, for which there are similar data-shoot to kill ratherthan to subdue. As shown below, the practice of shooting to kill not only has broad popular supportbut is also "accepted" by the "toughtalk"of official policy. Probablyno single event more tragicallyexemplifies the routineassociation of these componentsof police violence than the massacreof 111 prisonersat Casa de Detenqcoin October 1992. Not a single police officer died; none was woundedseriously.Yet prisonerswere randomlyshot and summarilyexecuted after surrendering. In a countryin which humanrights violations coexist with a free press, images of the massacreended up in the mass media, revealing a concentration bodies on the prisonfloor, camp vision of piles of bullet-riddled nakedinmatescarryingcorpses,androws of open woodencoffins arranged side by side along the corridorsof the Instituteof Legal Medicine.Althougha civilian criminalprosecutor of the presentedchargesagainstone of the commanders operationand a militaryprosecutorpresentedchargesagainst 120 officers and soldiers for various crimes, including homicide, not a single one has been broughtto trial almost five years afterthe massacre.Most of the accused continue to hold theirjobs in the militarypolice and to participate in public life. A few have even run for elected office on the basis of their performancein the assault.13 The massacreat the Casa de Detencao is an egregious example of what has become an accepted, if not encouraged,routineof police abuse. Some of this violence is no doubt associatedwith corruption.Possibly, some violence may be accountedfor in terms of Brazilianjudicial procedures.Especially in the precinctsof the investigativecivil police, the prevalenceof routinetorturemay well be relatedto the fact thatconfession is still the centralpiece of judicial evidence. The hellish condition of prisons surely has something to do with restrictedstate budgets. Police violence has, however, even more to do with official policy and popularsupport.We can see the effect of the formerthrough a contrastamong the experiences of several Braziliangovernors.Sao Paulo's first governor after the end of militarydictatorship,FrancoMontoro (1983Covas (1995-99, who has been reelectedfor another 87), and governorMairio
3 For example, in 1994, MP Colonel UbiratanGuimaraes,the commanderof the Casa de Detencaooperation,ranfor a seat in the stateassembly.Among the manyshockingaspectsof his campaign was his choice of the number111 to identifyhimself as a candidateon the ballot, exactly the numberof prisonerskilled in the assault.Althoughhe received 26,156 votes, it was not enough to be elected. More recently,in May 1996, the EighthHouse of Public Law of the Courtof Justiceof the State of Sao Paulojudged the police action "legitimate" and absolved the state of all civil and financial responsibilities.The superiorjudge who heard the case, Raphael Salvador-also vicepresidentof the PaulistaAssociationof Judges-justified his decision by blamingthe prisonersfor the massacre:"They startedthe rebellion,destroyedthe prisonblock, and forced society, through its police, to defend itself" (Estadode Sdo Paulo, 4 May 96: Al). Othercourtsare also hearingthe case, and the decision is underappeal.

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term) were particularlydeterminedto cut down the abuses of the police, improve humanrights,andenforce the ruleof law. They were able to achieve their goals partially,in spite of strongopposition, not only from the police but also fromright-wingpoliticiansandthe populationat large,especially in Montoro's case. In contrast, the two governors who succeeded Montoro, Orestes Quercia (1987-91) andLuizAntonioFleuryFilho (1991-95), adoptedthe oppositepolicy.14They believed that only a "tough"(meaningviolent) police force would be able to curbthe risingratesof crime,andthey reversedall of Montoro'smeathe numsures aimed at controllingpolice abuses. Undertheiradministrations, ber of deaths caused by the militarypolice rose continuously.After the massacre at the Casa de Detencao, when the annual number of police killings approached1,500, Fleury was forced to substitutehis own secretaryof public securityandchangehis "tough" policy. As a result,the numberof people killed by the militarypolice droppedto 409 in 1993 and 453 in 1994. The numbers continued to decrease during Mario Covas's administration, reaching 250 in 1996 and 1997. The new policies adoptedby Covas include strictercontrolof the use of deadly force, the creationof an ombudsmanfor the police, and the adoptionof a State Programfor HumanRights in 1997, which replicates the NationalPlanfor HumanRightsadoptedby the Cardosoadministration the previous year.Although the new policies adoptedat both state and federal levels have had positive effects on efforts to control the disrespectof humanrights, they arenot easy to implement.This is evident in the numberof civilians killed stanby the police, which is still extraordinarily high accordingto international dards.It is also demonstrated in a series of strikesandriots by the police forces of variousstatesduringthe monthsof JuneandJulyof 1997, in responseto state initiativesto reformtheirstructure. At thatmoment,Congresswas debatingthe law thatwould makemilitarypolicemen accountableto the civil courts,the federal government(throughits nationalsecretaryof humanrights) was elaborating a projectof police reformto be sent to Congress,and GovernorCovas presented a proposalfor transferring all patrollingactivitiesto the civil police and the division between the two police forces. The aggression,strikes, eliminating and public demonstrations the by police, as well as exchanges of gunfire and between the two were broadlydocumentedby the mediaand forces, aggression indicatetheir deep resistanceto reform. This resistanceis ultimatelygroundedin broadpopularsupportfor a "tough" police force. The hard fact is that a significant part of the populationof Sao Paulo supportsviolent police action. For example, accordingto variousnewspaper surveys conductedat the time, between twenty-nineand forty-fourpercent of the residentsof Sao Paulo supportedthe police in the massacreof prisoners at the Casa de Detenico. Every serious study of popularsentimentshows
14

For a complete analysis of Sao Paulo'spolicies of public security,see Caldeira(in press:Part

IV).

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widespread approvalof violent police actions in dealing with criminals, including tortureand killing. Thus, the police have continuedto be violent, not only becauseof an assuredimpunity,but also becauseof the supportof the population.Paradoxically, even the main victims of police violence-the working classes-support some of its forms. Given this widespreadapproval,it is not thatthe majorityof the populationarehostile to the notion of human surprising rights and to campaignslaunchedby humanrights groupsto enforce a rule of law that respects individual rights. Elsewhere, Caldeira(1991) has analyzed this hostility and the failure of human rights campaigns to deal with it adequately.The point we wish to suggest here is thatthe population'ssupportfor police violence indicatesthe existence not only of an institutionaldysfunction, but also of a pervasiveculturalpatternthatassociates orderand authoritywith the use of violence, and that, in turn,contributesto the delegitimationof the justice system and the rule of law.15 This culturalidentificationgeneratesa whole series of ambiguousand confusing practices because most Brazilians-particularly poor and/or black ones-also fear the police.16 Most poor people have experiencedpolice mistreatmentandabuse,andtheirnarratives aboutthem arefull of indignation.On the one hand, they consider that the police routinely mistake "workers"for "criminals" (these two being opposed local categories) and are thereforeviolent with them. On the other,they believe thatthe police aresoft with real criminals, who can bribethem, but hardwith honest andpoor workers,who cannot. In this triangular relation,people tend to express a confusion among all vertices: the police treatworkersas criminals,workersview the police as corrupt, and in some cases workerseven considercriminalsas protectingthem against the discriminationof the police. Moreover,when both rich and poor describe the police as workers,they mean to emphasizethat they are not well prepared for theirjobs, because they come from the lower classes and thereforelack the requisiteeducation,leadership,and good judgment.Even when the poor themselves express it, such criticismof the police tends to be combinedwith prejudice againstthe poor. In this context of confusion, in which police violence is praisedand feared,
15 This culturalpatternis quite complex. One of its main elements, which we cannot analyze here, is a certaindominantconception of the body that Caldeira(in press) calls the "unbounded body."It is a concept with two complementaryaspects. First, the unboundedbody is one around which thereareno clearboundaries of separation and avoidance,a body thatis permeableandopen to intervention,and that can and even should be manipulatedby others. Second, the unbounded body is unprotectedby individualrights and indeed results historicallyfrom the lack of their enforcement.Thus, in Brazil, where the judicial system is openly discredited,the body (and the person) are generally not protectedby a set of rights thatbind it, in the sense of establishingbarriers and setting limits to interference,intervention,or abuse by others. In Brazil, the unboundedbody is evident not only at Carnival,but also in the extraordinarily high rates of caesareanbirths,cosmetic surgery,and physical punishmentof childrenby parents. 16 This discussion about the population'sview of the police and the justice system is based on researchconductedby TeresaCaldeiraamongresidentsof all social classes in Sao Paulo.The complete study is presentedin Caldeira(in press:PartII).

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desiredand distrusted,people do not easily associatethe police with the rule of law. The synecdoche "Herecomes the law," used to refer to the arrivalof the police in AmericanEnglish does not exist in BrazilianPortuguese.The Braziland then with the abusive and ofian identificationis instead with "authority" ten violent use of it. People do not consider the police in terms of law, rights, and citizenship-not to mentionjustice and fair treatment-but ratherin terms of incompetence,corruption,injustice,and brutalforce.
Judicial Discredit

Caughtin this combinationof political democracyand violence, the vast majority of Brazilians are resigned to an undemocraticfate: they cannot rely on the institutionsof stateto secure theircivil rights,eitheras positive protections or as negative immunities.Moreover,once theirrightshave been violated, it is equally unlikely for Braziliansto expect redressthroughthe courts.For example, in April 1998, the state of Rio de Janeirocreateda judicial ombudsmanof the police (one internalto its organization)to judge citizen complaintsagainst both civil and militarypolice. In the first nine months of operation,this court received 1,586 complaints,includingchargesof torture, extortion,and abuseof It decidedon indictmentsin 20 percentof the cases andhandeddown authority. convictions in 7 percentof them (112). The sentences carriedvariouskinds of punishments,includingprison,demotion,and warning.In fact, however, not a single convicted policeman remainedin jail or was expelled from the police force. This example is representativeof judicial ineffectiveness: Brazilians perceive the judiciaryas an institution"withoutteeth"in most cases, an incapacity which creates the belief that crime pays, that breakingthe law goes unpunished, that citizens cannot enforce their legal rights, and that their legal disability allows criminals to act with impunity.It is not that people have no hope. Theirwillingness to try new inventionslike the police ombudsmanbelie such a possibility. Nor is it that there are not adequatelaws on the books. It is ratherthatthe courtsand the police cannotmake the law "stick."Justas the police do not representthe law-as-rightfor most people, thejudiciaryis so remote as a reliableresourcethatmany residentsof Sao Paulo did not even mentionit in our interviews about violence and crime. When they did respondto a specific question about the judiciary,their reply was most often some version of "It'sa joke!" Even for educatedBraziliansthe judiciaryis a closed, conservative, enigmatic institution,protectedby practicallyimpenetrablebureaucratic formalitiesand fiercely defended corporateprivileges. Beyond a very narrow little is known about its personneland organiprofessionalcircle, remarkably zation.Nationally,aboutseventy-twopercentof all Braziliansinvolved in criminal conflicts do not use thejustice system to resolve theirproblems,according to data gatheredin 1988 (PNAD statistics, cited in Adorno 1994:136). When conflicts occur,people frequentlyuse the phrase"Go look for your rights"(Vai

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procuraros seus direitos).This phraseoriginatedin the field of laborlaw, where it means thatalthoughrightsexist, they arehardto realize withoutmuch strugIt can also be used in a more cynical tone gle (typically againstbureaucracy). by someone accused of an offense. In such cases, it means that even if the accuser has rights, he or she will never realize them throughthe justice system. The message is to forget the law and either accept what happenedor try for an resolution. extrajudicial In the discussion thatfollows, we want to emphasizethatour focus is on the judicial protectionof the civil component of citizenship, especially on those civil rights concernedwith life and liberty and effected by urbanviolence. In some other areas of law there have been hopeful changes in recent years. For example, the Public Ministryhas developed into an proactiveand sometimes effective prosecutorial institution,chargedwith defendingthe public interest.17 In 1990, a nationalconsumerprotectioncode establishedeffective consumer rights and continues to support their enforcement through special "proconsumer"offices thatreceive and evaluatecomplaintsin most cities.18In addition, in 1998, both federaland several statelegislaturesinstitutedparliamentary investigativecommittees(CPIs) on drug traffickingand organizedcrime, with broadpowersto subpoenawitnesses, review bankandtelephoneaccounts, and issue warrants of arrest.Althoughin manycases the courtshave voided the arrestsfor lack of sufficientevidence, the CPIs have neverthelesssucceededin leading an offensive against organized crime, based on judicial-like public hearingsthatgeneratemuch mediacoverage andpublic support.Moreover,the federal legislatureopened a CPI to investigate the judiciaryitself for various kinds of corruption,with the ultimateobjective of formulatinga comprehensive reformof the courts. Needless to say, the judiciaryrebelled. Many of the highest judges simply refused to testify or cooperate.Nevertheless, after only a few monthsof operation,the CPI uncoveredseveralcases of stupendouscorruption,giving it public legitimacy that the judiciarycould not deny. Finally, we wish to recognizethattherearemanyhonest,dedicated,andeffectivejudges and prosecutors.They often wage what amountto heroic strugglesagainstentrenchedcorporateinterestsand archaiclegal practicesand culturesthat have little to do with a democraticprojectof justice. Althoughpolice abuse has received considerableattentionin the evaluation of Brazil's democratization, the judiciary'sfailure to achieve to a democratic rule of law has received comparativelylittle consideration.However,the judiciary's prevailinginabilityto secure and communicatea sense of effective jusandreasonableaccess for all Braziliansnot only tice, fair and timely treatment,
17 Althoughthereareto datefew books devotedto the developmentandsignificanceof the Public Ministry,see the volume edited by Vigliar and Macedo Jdnior(1999) for a recent discussion. 18 On consumerprotection,see Lopes (1992) and Macedo Jr. (1998). Publishedby the Instituto Brasileirode Politica e Direito do Consumidor,the Revista do Consumidorprovidesconsumer advocateswith case studes,jurisprudence, analysis of judgments,and debates.

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rendersit an isolated and even irrelevantinstitutionfor most people: such failures also crippleBraziliandemocracywith an undemocratic rule of law. As we discuss later,this impairmenthas not been well addressed,because most studies of democratizationassume that political democracy automaticallyor necessarilyproducesa democraticrule of law. They presupposethatthe rule of law is, by definition, democratic,without establishingwhat the rule of law is, and what would make it democratic. In additionto ineffectiveness, isolation, and formalism,Braziliansview the judicial system as profoundlyclass-biased.Although most, if not all, judicial systems in the world betterserve the rich, the bias in Brazilis particularly egregious becausethe overwhelmingmajorityof Braziliansarepoor.Forthe Brazilian rich,the courts,when needed,have been a reliablemeansof manipulationespecially because theirstaggeringbureaucratic complexitiestie up conflicts in formal complication to the point of exhaustion and/or extra-judicialsolution (see Holston 1991). For the poor, however, the judiciaryhas historicallybeen little more thana source of humiliation.19 This abusive rule of law embodies a double discrimination thatis a "ruleof thumb"in Brazil:the poor suffer criminal sanctionsfrom which the rich are generallyimmune, while the rich enjoy access to privatelaw (civil and commercial)from which the poor are systematically excluded. This double bias pollutes the entirefield of law, discrediting the judiciary and the law generally as a means to justice. Thus, the courts do not providea genuineforumwithinwhich contemporary social conflicts can be with a sense of fairness and a engaged equalitybefitting democracy.The courts remainespecially ineffective in arbitrating social relationsin ways that would sanctions on the of offenses the impose powerful and protect citizens from abuse by the state and its agents. These incapacitiesproducegeneralized expectationsof eitherimpunityor abuse from the justice system. Confirmationsof these expectations aboundin every area. Consider a few examples. Between 1965 and 1990, the AmericasWatchCommittee(1991) has registeredthe murderof 1,681 ruralworkers.Of these cases, there have been only twenty-six trials and fifteen convictions. It is, moreover, uncertain, whether any of those convicted have remainedin jail for any length of time. The convictedmurderers of rurallaborleaderChico Mendesarea case in point. The conclusion is certain:hired guns murderwith impunityin ruralland and laborconflicts. In the case of child labor,the constitutionoutlaws the employment of those younger than fourteenyears of age. Yet, the 1991 nationalcensus shows that there are more than three million childrenbelow fourteenemployed in the formaland informaleconomy. Conclusion:the legislaturemakes laws thatthe courtscannotor will not enforce,employersoperatewith impunity in blatantviolation of the law, and workers are abused. With regardto urban crime, of all incidents reportedby the civil police for the municipalityof Sao
19 The one exception for the workingpoor is labortribunalsfor peculiarhistoricalreasons (see Santos 1979).

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Paulo in 1993 (389,178 boletins de ocorrencia), only 20.4 percentresultedin the type of police fact-findingproceedings(inqueritosinstaurados)necessary for judicial action of any sort. For the last decade, thatratehas variedbetween seventeen and twenty-onepercent.In 1993, for crimes of murder,it was a low 73.8 percent,though for drug dealing, it reached94.4 percent (Seade, unpublished data).Althoughwe do not have data on the numberof conflicts that actually go to trial,it is widely thoughtto be low. Moreover,as we have seen, conviction does not necessarily mean punishment.20 In the area of white-collar economic crime, the federal governmentclosed several large private banks, such as the Banco Economico and the Banco Nacional,in the last few yearsfor executive fraud,illicit enrichment,and othercrimes. However,not one executive of these bankshas ever been broughtto trial,muchless put in jail. The governmentbailed out the banks and repaid all depositorsso that even investors who made fortunesthroughrisky ventures(such as those who later defaulted on loans at exorbitant In these cases rates)did nothave to assumeresponsibility. and so many others, de facto impunity is the result of the rule of law under Brazil's political democracy. In evaluatingthejudiciary,it is also important to considerthatthe courtshave a special responsibilityin every democracyto protectcitizens from the abuses of arbitrary executive action. Such protectionis surely among the foundationbarriers to al and legitimatingvirtuesof democracy.One of the most important this abuse is the constitutionalrequirement that the state may deprive an individual of basic liberties(such as life, assembly,and property)only on the basis of law and its due process. Some form of this principleof legality appearsas a fundamentalguaranteein every democraticconstitution.However, the application of this principleis the greaterhallmarkof democracy.Historically,consolidated democracies have depended on the judiciary-especially the high court-to interpret the normsof legality so thatthey apply to real social probthis applicationhas lems in ways congruentwith their intent. Most important, In of the on the developmentof Westjudicial interpretation liberty. depended has entailed an expansionof the categoryof ern democracy,this interpretation libertyto includenot only freedomof contractandotherclassically liberalecothe civil libertiesof speech, nomic liberties,but also, and more fundamentally, assembly,personalsecurity,and so forth, consistentwith due process. To give constitutionalnorms utility and relevance, the courts must grapple with the question of what sort of proceduredue process requires,and what liberty entails.2
20 In addition,S6rgioAdornofoundthatbothconvictionand sentencingpatternsareaffectedby racialbiases. In his study of 297 criminaljury trialsin Sao Paulo, he observeda convictionrateof threeblacks to one white (Adorno 1994:140). 21 As David P. Currie (1988) shows in his study of the Americanconstitution,for example, the U.S. SupremeCourthas tended to equate due process with fairness, going beyond common law It has interpreted libertybroadlyto give civil rights not only the procedureto meet that standard. position' entiprotectionof due process but also to give "FirstAmendmentliberties a 'preferred

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In Brazil, every democraticconstitutionsince the first RepublicanCharter of 1891 has contained adequateprovisions for due process and the fundamental rightsof life, liberty,andproperty-provisions directlyinspired,in fact, by the U.S. Constitution.In reality,however, Braziliancourts have consistently protected only property,and only certainkinds at that.22When tested, they have not given life and libertyrigorousjudicial protectionagainstthe infringements of the state. It is not just that citizens have not used the high court to protect their non-economic constitutionalrights. It is also that the Braziliancourts do not invite such use because they do not have a traditionof defending them. Ratherthan forbiddingthe state to deprive persons of their rights, the courts tend to acquiesce to thatdeprivationwhen they considerit at all-as the failed challengesto governmentcensorship,illegal detention,or coercedconfessions, for example, illustrate.Civil rightscases often languishfor years with no resolution untilthey become moot. Whathas been almostcompletely missing from Brazil'sjudicial traditionis the sense that courts protectthe rights of citizenship and the principleof legality, even though these norms have been written into every democraticconstitution. What we want to emphasize in conclusion are the consequences of judicial discreditfor the democraticrule of law: not only are civil rights generally unenforcedwithin thejustice system, but they are also skewed by the double bias of impunityand exclusion discussed earlier.From the perspectiveof most citizens, therefore,the right to justice as a key civil right and matterof law lacks both institutionalconsolidationand personalpractice.For example, due to this discredit,the new social movementsof the 1970s and 1980s, which did so much to generatea new conceptionof Braziliancitizenship,ignoredthe courtsas an arenaof redress.These movementswere unprecedented in theircreationof new kinds of rights outside the normativeand institutionaldefinitions of the state and its legal codes. In particular, these rightsaddressednew collective andpersonal spaces of daily life in the city, especially in the residentialneighborhoods of the peripheries. As these "rightsto the city" expandedcitizenshipto new social bases, they also creatednew sources of citizenship rights. Yet, until very recently,these social movementsbypassed the judiciaryin their struggles.Instead,they have mostly workedwith models of rightsthattend to limit the conand thus political rightson the one cept of citizenshipto political participation hand, and to insertioninto the system of governmentservices and thus sociotling them to greaterjudicial protectionthanordinaryeconomic liberties"(Currie1988:49).Thus, to ensure a fair trial, the U.S. SupremeCourtdecided in 1932 that "due process entitles indigent defendant[s]to counsel at state expense thoughcommon law did not"(Currie1988:124). 22 For example, in a case of land disputeinvolving millions of poor families in the peripheryof Sao Paulo, the SupremeFederalTribunalwas petitionedin 1957 (Acao Cfvel Orginaria164-A) to sort out the propertyinterestsof the federalgovernment,the stateof Sao Paulo, and variousprivate parties.By law, the Courthas to hear all cases broughtbefore it. Although this particular case involves constitutionalissues that directly affect the well-being of countless citizens, it has simply languishedin the court system withoutdecision for more thanforty years (see Holston 1991).

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economic rightson the other.Withsome exceptions (such as minorityandfeminist movements),they have largely disregarded the courtsas means of change and focused instead on securingentitlementsdirectlyfrom the executive and, secondarily,from the legislative institutionsof government. Fromthe perspectiveof the courts,the neglect of the rightof all Braziliancitizens to justice and civil rights means that the judiciaryhas been very slow to confrontthe transformations of contemporary society. Of the branchesof govAs a ernment,it has remainedthe most resistantto democratictransformation. result, the developmentof Braziliancitizenshipremainsstrikinglydisjunctive, almost a decade afterthe successful institutionof politicaldemocracy.
The Privatization of Justice and Security

One of the most importantconsequences of judicial discreditis the privatization of justice and security.23 The combinationof fear of the police and distrust of thejustice system leaves people feeling vulnerable.Some resign themselves to this feeling; others seek alternatives.These alternativesare usually outside the boundariesof legality and are of two types. In one alternative,people considerreactingprivatelyand takingthe law into theirown hands.It is important to add that such vigilantism is usually an alternativemore at the level of discourse than of practice,althoughlynchings have, in fact, increasedconsiderably in the 1990s. People express their discontent by defending personal vengeance, which does not mean that they act vengefully, at least not as frequentlyandvehementlyas they defend such responses.In the otheralternative, people supportthe use of deadlyforce againstalleged criminals.Both areparadoxical reactionsto a delegitimated justice system, for people usually want the and of being violent-to be violent "toward fear accuse police-whom they the side that deserves it," even though they know that the police routinelyaggrieve innocentpeople. Their intent is neverthelessclear:they want criminals killed. Given theirdistrustof thejustice system, summaryexecutionby the police is the only guaranteed way to remove the threatof crime. But the paradox remains:by supportingvigilantism and violent police methods, people both propagateviolence and greatlyincreasetheirown chancesof becoming its victims. of justice and securitydoes not include the reWhatwe call the privatization venge killings that markorganizedcrime in Brazil, including those relatedto drugtraffickingin thefavelas (squattershantytowns). Although such killings increasethe annualmurderrate considerably,and althoughthey belong to the same field of violence as privatesecurityandjustice, they are distinctfrom the protectiveandreactivemeasuresconsideredby citizens who arevictims of fear andcrime. Some writershave called these organizedcrime killings a system of "alternative justice."They do so to emphasizethatthese killings have become
23

See Caldeira(in press) for a fuller discussion of this problem.

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dominantin some favelas, organizingthe residents'everyday lives on the basis of terrorand filling the void left by the absence of state institutions,especially the justice system. We thinkthatto considerthem acts of justice confuses the importantanalytic distinctions between revenge, self-help, crime, and law. It also implies a misapplicationof the notion of plurallegal spheresto acts thatin our view properlybelong to the field of crime and thatarerecognizedas such even by thefavelados who live wherethey occur.To describethem as acts of alternative justice both exoticizes and depoliticizes them by removingthem from the sphereof a failed nationaljustice system. OurresearchindicatesthatBraziliansof all classes generallythink that it is too risky to takejustice into theirown handsbecause doing so may lead to a lot of trouble,especially from a moralpoint of view. However,they are more likeinstitution, ly to arguethatif this kind of justice were carriedout by the "right" such as a police force that defends innocent people, it would constitutean effective solution to crime. This type of reasoningleads people from all classes to supportsummaryexecutions by the police, and to evaluate police violence da Mortearewidepositively. It is in this context thatROTAandthe Esquadrao as admired. Poor see these two organizations "tough"with criminals ly people kill "the andnot corrupt. Moreover,they tendto believe thatthese organizations carto the therefore much evidence contrary-and rightpeople"-even against efficient than Poor these as more out ry people perceive organizations justice. a justice system in which the death penalty does not exist and the judicial process takes forever.This same reasoningleads them to admireand occasionally use vigilantes, calledjusticeiros (literally,justice makers).In an interview conductedby Caldeira,a young man who lives in a working-classneighborhood said the following abouta famous police death squad: I wishtheEsquadrao daMorte stillexisted. is thepolicethat daMorte TheEsquadrao I think is justicedoneby one'sownhands. it should daMorte onlykills;theEsquadrao stillexist.It'snecessary to take butthepeoplewhoshould justiceintoone'sownhands, do thisshould be thepolice,theauthorities we geta guy notus.Whyshould themselves, forusto lynch. havetheright, because we paytaxesfor Theyshould theyhavetheduty, this.... Thelawmustbe thisone:if youkill,youdie. People from the upperclasses also defend summaryexecutions, andmay use exactly the same argumentsaboutthe failureof thejustice system and the need to "kill the right person,"to "solve the problem definitively."However, in a country with huge social inequalities such as Brazil, the way in which justice does not work for the upperclasses is not the same as for the workingclasses. In fact, for the upperclasses, the non-functioningof the justice system may be just anotherprivilege.24In contrastto the workingclasses-who are frequent victims of police violence, constantlyrunthe risk of being mistakenfor crimi24

and kill him? What do we pay taxes for? For this, to be protected.... It's not worth it

See Holston (1991) for an analysis of this perverse"privilege-at-law."

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nals, and suffer accordingly-the upper classes are rarely victims of police abuse or of the justice system. Rather,they have the luxuryof choosing to disrespect the law. They can rely on their perceptionthat the law does not work, or works only for them, and they have the privilege of bypassing or manipulating it. As an upper-classwoman told Caldeirawith considerableirony during an interview: lawsareenforced thelowerclasses,theclassesof smallpurchasing Normally, against Forthem,thelawsarewell "respected." power. Theymakethemfollowthelaw,obey the law.Wefromthe middleclass,fromthe upper the class,we don'tneedto respect lawbecause we payforit withmoney. I don'tthinkthisis just. Thus, the everydayexperienceof violence andof the institutionsof law leads to a pervasive and comprehensivedelegitimationof the rule of law among all social classes. Poorerpeople are victims of arbitrariness, violence, and injustices committedby agents of the law. As a result, they feel that they are left without alternativesinside the law. In contrast,the rich find it in their best interestto take advantageof the failuresof legal institutions.They have the privilege of being able to choose to ignore the law and do what they think is more What is similar for both groups, however, is that their reactions appropriate. tend to be framedin privateand frequentlyillegal terms.In both cases, the rule of law is discredited. If we considerthe performance of the police and thejustice system in a context of growing ratesof violent crime, it is not difficultto understand why Sao Paulo'sresidentsincreasinglyadoptprivatemeasuresto protectthemselvesand deal with violence. Because these measuresare privateand often violent, they can only contributefurtherto the delegitimationof the rule of law and the reof inequalitythatcharacproductionof violence. Moreover,given the structure terizesBraziliansociety,suchprivatemeasuresemphasizesocial discrimination. Private measuresto deal with crime and to carryout justice are of various sorts. The most visible measuresare the ubiquitouswalls and bars that people buildings.These barriersare draput up in frontof theirhouses and apartment matically changing the landscapeof Brazilianbig cities, as well as the social interactionsof their public spaces. In these cities of walls, residents are very suspicious and change their habits to avoid interactionsin public, especially with people perceivedas being different.The walls not only separate residences but also createsemi-publicenclaves, such as shoppingcentersand office complexes, where entrancescan be controlledand social homogeneityguaranteed. In this sense, fear of crime legitimates practicesof segregationand considerof public space. In a society wherepeople from difably changes the character ferentsocial groupstend not to interactor even encountereach otherin public, the chances for propagatingdemocraticpracticesare surely diminished.25 The walls do not stand alone. They are part of a complex of measures,in25 of fortifiedenclaves transforms See Caldeira(1999) for a discussion of how the proliferation the character of public life, both in Sao Paulo and in Los Angeles.

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cluding various technologies of security,from video camerasto identification of visitors, from electronic fences to all kinds of alarms.These measuresalso includethe hiringof doormenandarmedprivateguards.As in manyothercountries, such practiceshelp multiplythe profitsof the rapidlygrowing privatesecurity industry.This industryhas various faces in Brazil, as it adaptsto serve differentsocial classes. At some levels it mixes with the illegal actions of the police, as a significant numberof privateguardsare off-duty policemen, frequentlyworkingwith police guns. For the workingclasses, however, these orAt times, the ganizedprivateservices andtechnologiesaremostly unaffordable. poor may benefit from the vigilance of justiceiros hired by a local merchant, but they are also just as likely to suffer the adverseconsequences. in the way people Collectively, these measurescause deep transformations carryon theirdaily affairs,interactwith others,and move aroundthe city. It is possible to observe new gestures, new body postures,and new instinctive reactionsof suspicionanddistancing.We mightcall this a new cultureof fear,using an expressionthat was used for many years to refer to everyday life under authoritarian regimes. In the presentBraziliancase, however,thereis no political repression,and police violence is routineand uncensorednews. Thus, this new cultureof fear takes shape in the context of a democraticpolitical system with a free political organizationand press. Its developmentis contemporary with the transitionto democracy. A common argumentin discussions aboutviolence and democraticconsolidation in Brazil is that the concurrenceof elements we have described including the abuses of the police, the delegitimationof the justice system, the privatemeasuresof justice and security,the generalizeddisrespectfor law, the cultureof fear, and the relatedtransformations of public space-constitutes an authoritarian enclave or a survivalof authoritarian rule in democracy. Although this concurrencecertainlyrepresentsan obstacle to the consolidationof a democratic society in Brazil, we want to call attentionto its novelty as a postdemocratization phenomenon,and cautionagainstblamingthe (military)past. The contemporary violence is new not only because of its unprecedented level, but also because of its publicness, disregardfor ideological rhetoric,negation of the notions of a common andjust futurefor all Brazilians,and its perverse associationwith the expansionof political citizenshipandrelatednotions of agency. The contemporaryviolence is not an invention of authoritarian rulers,but the perversedevelopmentof a deeply unequalsociety in which the expansion of some rights occurredsimultaneouslywith the abandonmentof modernideas of developmentand progressby many Braziliansof all classes, underminingthe sense of a common project for the future (see Caldeira,in press, Chapter2).
DISJUNCTIVE DEMOCRACY

The coexistence in Brazil of political democracyand violence againstcitizens but common kind of democraticdisjunctionin which exemplifies a particular

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the civil component of citizenship is systematicallyunderminedand significantly weaker than other components.Thus, Braziliansvote in generally free and fairelections, have theirbasic rightsembodiedas constitutional principles, and benefit from a minimumof socio-economic rights, well-groundedin public demands. However, the vast majority cannot rely on the institutions of state-particularly on the courts and the police-to respect or guaranteetheir individual rights, arbitratetheir conflicts justly, or stem escalating violence describedearlieris an extreme legally. In this sense, the killing of "marginals" of the anonyexpression in Braziliansociety of the everyday marginalization mous individualas citizen and bearerof civil rights. This kind of disjunctive democratization inevitably brings new forms of violence and injustice.These are forms specific to a democracywith a discreditedcivil sphere.As we have shown, when the civil componentis discredited,social groupsat all levels come to supportthe privatizationof bothjustice and security,and illegal or extralethe police. gal measuresof controlby state institutions,particularly In effect, the developmentof Braziliancitizenship underpolitical democracy has been very uneven, in a numberof significant ways. On the one hand, its civil component-including, civil rights,access to justice, due process, and the applicationof law-is unevenly and irregularlydistributedamong Brazilian citizens. On the other,althoughsystematicallyviolated, the civil sphereof citizenship has not been a prominentconcern for many of the principalforces in Brazil. These forces include the new social movements, of democratization labor unions, political parties,and universities,which remainfocused on other aspects of citizenship and democracy, especially the political and socioeconomic. Humanrights organizations,the women's movement, and various groups(such as those for gays andblacks) do defend civil conminority-rights cerns. But they do not defend these as common rights of all citizens, of every man andwoman,rich andpoor,regardlessof raceor sexual orientation.Rather, Braziliansvery often perceive these groups as defending the rights of minoriand special interests-to such an extent, for example, that ties, "marginals," human rights as "privilegesfor bandits,"as we discussed earlimany oppose er. Thus, althoughpeople complain bitterly about everyday violence and injustice, Braziliandemocracylargely ignores the civil aspect of citizenship as a fundamentalconcern for all Brazilians.To use Marshall's(1977) typology, this disjunctionmeans that in comparisonwith social and political rights, civil rights have not been effectively woven into the fabric of Brazilian citizenship. and difficultto analyzewhy civil rightsare so impracticable It is particularly or reductive in without culturallysimplisbeing historically disregarded Brazil an intersectionof culturalformulationsaboutlaw, tic. It requiresunderstanding citizenship,andindividualautonomythatis too complex to explorehere.As we statedearlier,our concernin this essay is not to establishunderlyinghistorical causalities. Rather,our focus is on both the lived and theoreticalsignificance

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of the disjunctionin Brazilianpolitical democracywherecivil rightsarenot experienced,perceived, or appreciatedas common rights of citizenship. How can we accounttheoretically for a democracyin which the civil componentof citizenshipis systematically violated?Whatsense does it maketo call this Brazil a democracy?It only does so if we recognizethatthese combinationsof characteristic of democratizacontradictory developmentsreveal a fundamental tion itself-namely, that it is normallydisjunctive.By calling democracydisjunctive, we want to emphasizethatit comprisesprocesses in the institutionalization, practice, and meaning of citizenship that are never uniform or heterohomogeneous.Rather,they are normallyuneven, unbalanced, irregular, The concept of disjunctive geneous, arrhythmic,and indeed contradictory. thatat any one momentcitizenshipmay expandin democracystresses,therefore, one areaof rightsas it contractsin another. The conceptalso meansthatdemocand depthamong a populationof citizens in a given political racy's distribution space are uneven.It is in this lack of balanceand unevennessthatcontemporary Brazilexemplifiesa disjunction typicalof manyemergingdemocracies.26 The notion of disjunctionwe suggest is differentfrom, but complementary to severalotherconsiderationsof temporaland spatialissues in the studyof democratization.For example, in the work of BarringtonMoore (1966), Eric Nordlinger(1971), and LeonardBinder et al. (1971), argumentsabout timing focus on the sequences of various crises of nationalidentity, state formation, modernization,and social structureas historical prerequisitesof democracy. Centralto otherstudies of political developmentis the problemof the penetration of the stateas a centralauthoritythroughout a society and territory (for exLaPalombara's contribution to Binder et al.). GuillermoO'Donample,Joseph nell and Philippe Schmitter's(1986) seminal work considersregime transition as an unfolding historicalprocess of analyticallydistinct sequences, patterns, and stages. In addition,dependencytheoryanalyzesthe importanceof both the martimingandthe spatialreferentsof a region'sinsertioninto the international ket as factorsthatrelatecapitalistdevelopmentanddemocratization on a world scale. All of these studiesconsidertime and space as dimensionsof change between differentkinds of political regimes, systems, or stages, which they treat as more or less comprehensivewholes. By contrast,our notion of disjunctionis specifically internalto democracy. It emphasizesthatdemocracyentails a complexityof processes andinstitutions of citizenship, always becoming and unbecoming, often confusing and unstable, ratherthan a set stage of institutions,actors, social structures,and culturalvalues. The notionof disjunctionsuggests thatalthoughtherearerulesthat might define an ideal democracy,such a regime has neverexisted. Rather,there are always various and often contradictorysets of rules and games in play in any democracy,at the same time and in the same space, some of which may be
26

The concept of disjunctivedemocracyis developed furtherin Holston (forthcoming).

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considerablyless democraticthanothers.This theoryof disjunctionhas a number of conceptualrequisites, some of which we now consider in terms of the extension of democracyand citizenship beyond the political, the rule of law, and the questionof alternativedemocraticformations.
The Extension of Democracy beyond the Political

The theory of disjunctivedemocracydepends on one's thinkingof both modern democracyand citizenshipas extendingbeyond the political to encompass the social, economic, and cultural spheres of life. Given the coincidence of democracyandviolence in new democraciessuch as Brazil,it seems evident to us thatit is only as a fraudor as a severely impairedregime thatdemocracycan standalone-either conceptuallyor actually-as a kind of political methodin the context of social, economic, and culturalconditions hostile to democratic citizenship. If thatis so, then democracyhas to be consideredas much a qualification of society as of politics. This is not to adopt a maximal definition of democracy,or to make a particular political cultureits precondition.Rather,it is to insist thatthe extension of democracyto the social sphereis as centralto the concept as its extension to the political sphere.It is to contendthatboth of these colonizations-of society by the state and the state by society-constitute the contemporary and enabling form of democraticdevelopment.Our arBobbio's derives from (1989) observationsaboutthe modernextension gument of democracyfrom the political to the social. With the criticisms alreadysuggested, it also develops Marshall's(1977) analysis of the intersectionof class and citizenshipandthe relationsbetween whathe defined as the threeelements of citizenship:namely,the political,civil, andsocioeconomic.Most modernlitthis broaderconception of citizeneratureon citizenship alreadyincorporates the literature on democratization But, mostly considers curiously, ship.27 in related electoral institutions and terms of and political rights democracy if of disconnected from them. as the other arenas were citizenship processes, In our view, democracyand citizenship are necessarily and inherentlyconnected in a muchfuller sense-for the democraticstateexists only throughthe political participationof citizens in both its organizationand its articulation with civil society, and citizenshipexists only throughthe state's applicationof the principleof legality and its defense of the equality,liberty,and dignity of citizens in both their public and privatelives. This inherentconnection means that democracyneeds to be evaluatedin termsof the realizationof citizenship in the full sense of the term. By that, we mean not just political citizenshipi.e., electoral performanceand enabling institutionsof government-but also citizenship's substantivesocial, cultural,and economic conditions.
27 Some recentwork on citizenshipconsidersits extension to the culturalas well. For example, LatinAmerica-especially in see Taylor(1992) and Kymlicka (1997). In Canadaand throughout the Andean countries and Mexico-many questions of indigenous rights, sovereignty,and legal pluralismturnon issues of culturalcitizenship.

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To some, the argumentthatpolitical democracyis not enough both in theory andin fact may seem obvious. Indeed,one of the most astuteanalystsof contemporary democracy,GuillermoO'Donnell (1992:49), writes thatdemocratic consolidationrequires"theextension of similarlydemocratic... relationsinto other[notjust political] spheresof social life." However,we would suggest that the means and modes of this extension (and frequentretraction), andtheirconsequences for the theory of democracy,remain inadequatelyinvestigated or conceptualized. This is especially the case because most contemporaryobserversuse a political definitionof democracythatneglects to considerthatthe social conditions of citizenship are constitutive of its political possibilities. Such a definition excludes, therefore, democracy's extension to the social we arguethatthe democratization of stateand sphereout of hand.Furthermore, society are mutuallydefining in a consolidateddemocracy;thatis, democratic extensionsbetween stateand society arereciprocal.In an important sense, consolidationmeansthatthe statedoes not monopolize,in fact or claim, the sources of democracy-or of citizenshipor law, for thatmatter. The dissociationof democracyfrom society and its conditionsof citizenship derives directly from the continuedreign-at least in Americanpolitical science-of Joseph Schumpeter'sdefinitionof democracyover the study of both new and establisheddemocracies:"Thedemocraticmethodis that institutional arrangement for arrivingat political decisions in which individualsacquire the power to decide by means of a competitive struggle for the people's vote"(1947:269).28Our intentionhere is not to become embroiledin debates about competing definitions of "democratic-ness" (see Karl 1990 for an enlightening discussion). As Bobbio has wryly remarked,"Everyregime is democraticaccordingto the meaning of democracypresumedby its defendants and undemocratic in the sense upheldby its detractors" (1989:158). Rather,our intentionis to suggest why the studyof the civil componentof citizenship,with its attributesof law andjustice, does not seem to fit the predominant conceptualizationof democracy;or, put in anotherway, to suggest that currentapproachesgenerallyfail to relatetheir conceptionsof democracyto the real extent and exercise of citizenship and that this dissociationis a serious problem. The Schumpeterian definitionprivileges political democracyand the proceduralminimums necessary to achieve it. When interpretednarrowly,it holds that democracyis fundamentallya means of governance,a method or technical instrumentof politics, and democratization, therefore,is primarilya question of establishingadequategovernmentalinstitutions.In this minimalistversion, the modernstate is the locus of the democraticproject.Thus, the narrow
28 As Samuel Huntington(1991:6-7) observes, "By the 1970s the debatewas over, and Schumdefinitionof democrapeterhad won. Theorists... concludedthatonly [Schumpeter'sprocedural cy] providedthe analyticalprecision and empiricalreferentsthat make the concept a useful one. Sweepingdiscussions of democracyin termsof normativetheorysharplydeclined,at least inAmerican scholarlydiscussions."

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political definition of democracyfocuses on elections and therebyeliminates all concernfor the exercise of anythingotherthansome aspectsof political citizenship. For the same reason,even thoughthe political definitionemphasizes institutions,it does not consider the effectiveness of the justice system or the qualityof the rule of law, even in the latter'smorerestrictiveform as state law. and argued Karl(1986) has convincingly criticizedthis view as "electoralism" he that Schumpeterhimself would not have supportedit, because considered civil rights necessaryfor the operationof democracy. Many currentstudies agree with Karland go beyond mere electoralcompetition to include in their definitionsof democracyguaranteesfor civil liberties namely,that of throughthe rule of law, as well as two forms of accountability: the governorsto the governedand of the militaryto the civilian. For example, O'Donnell and Schmitter(1986:8) defined a broaderdemocraticminimumas "secretballoting, universaladult suffrage,regularelections, partisancompetiSimtion, associationalrecognitionand access, and executive accountability." minimal nor maxineither for her specification"(thatis, "middle-range ilarly, and accountabilityof mal), Karl(1990:2) identifies contestation,participation, the control over and adds civilian rulers, military.Curiously,neitherdefinition of law or civil the rule participation, rights.Although accountability, specifies and elections presume fundamentalcivil rights, there are many other rights, such as the rightto justice, thatare not so obviously included.Moreover,it is a mistake in our view to presumea democraticrule of law when the conditions of political democracy have been met. Furthermore,although this broader perspectiveclaims to includethe reachof the stateinto civil soSchumpeterian has to remainof secondaryimportance.It is so limited beextension the ciety, cause it is groundedin the classic dichotomy between state and civil society (andassociateddivides, such as public andprivate)thatlocates the realmof the political in the formerand distinguishesthatrealm from the social relationsof the latter.Thus, if democracyis narrowlyconceived as a political method,this dichotomizationmeans thatit cannotalso be a conditionof society. The deeperdissociationof democracyfrom society producedby this political definitionmeans thatmany studies-including those by governmentaland funding agencies-examine only the political and formalcomponentsof citizenship. Whenjustified in the literature,the principalreason given for avoiding the other, more substantiveaspects is commonly the claim that to study them-and thereforethe real textureof social life-would be to open the door to ideological and evidentiaryconfusion.Thus, the social complexity in which every democraticgovernmentmust survive and with which it must come to termsto act democraticallyfalls outsidethe definitionalscope. To make, as we suggest, the legal, ethical, and performativedimensions of citizenship fundamentalto the conceptionof democracyseems to make it difficult for many observers"to find any actualdemocraciesto study"(Karl 1990:2) or "to assign a reasonable closure to the second transitionprocess" (Valenzuela 1992:60),

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because in these terms no democracyis really consolidated.But this apparent difficulty is an artifactof a classificatoryscheme that insists on homogeneous categories and terminalprocesses. If we accept thateven consolidateddemocracies are disjunctivethen the difficulty evaporates,and we are compelled to the developstudy the full experience of democraticcitizenship to understand ment of democracy. This full experience is so unbalancedand heterogeneousin so many condemocraciesthatits traditional temporary political definitionin termsof membershipin the nation-stateis as unconvincingtheoreticallyas it is unfaithfulto the new empiricalconditions.Divided from social considerations,the political definitiongenerallytreatscitizenshipin termsof abstractand uniformrightsof This treatment assumesan even distribution of membershipin the nation-state. these rights across nationalspace and society. However, we know that actual democraciesbehave very differently.We know that there are vast, substantive differencesof citizenshipbetween social groupsandregions at subnational and transnational levels, even when participatory political rights are nationallyeffective. If formalcitizenshiprefersto membership in the territorial nation-state, and substantivecitizenshipto the arrayof political, civil, socio-economic, and culturalrights people possess and exercise, then much of the turmoilin contemporarydemocracies(both emerging and established)derives from the disAs many observers junctive relationbetween the formaland the substantive.29 arebeginningto realize,the conditionof formalmembership withoutmuchsubstantivecitizenship is characteristic of many of the societies that have experienced recent transitionsto democracyin LatinAmerica,Asia, EasternEurope, andAfrica. Focusing on such characteristics,O'Donnell (1993) makes a similar argument in his recent discussions of "low-intensitycitizenship"in the "brownareas of new democracies."Moreover,he stresses the importanceof an effective rule of law andthe state's legal responsibilityto extend and enforce citizenship rightsuniversally.The failureof the stateto do so curtailscitizenshipand compromises democracy.Althoughhe maintainsa political definitionof democraof democracy'sdiscy, O'Donnell's analysis is close to our own understanding nature and the of it from this junctive importance studying perspective.As he "Even a of definition as that recommended argues political democracy(such by most contemporary authors,and to which I adhere)should not neglect posing the question of the extent to which citizenship is really exercised in a given country"(1993:1361). We would only disagreewith his limitingthe concept of low-intensity citizenship "specifically to the political sphere, to the political theory of political democracy"-a limitationthat leads him to the dubiousargumentthat"thedenial of liberalrightsto (mostly but not exclusively) the poor
29 For further analysis of the disjunctionbetween the formaland substantiveaspects of citizenship, see Holston andAppadurai(1999).

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or otherwisedeprivedsectors is analyticallydistinctfrom, and bearsno necessary relation to various degrees of social and economic democratization" (1993:1361). Yet,as O'Donnell admitsin the same discussion,the two "gohand in hand"empirically.Hence, the argumentof "no necessary relation"seems drivenmoreby the need to maintainthe political definitionthanthe need to account betterfor the natureof real democracies. If we agree that contemporary democracies are significantly disjunctivein the political, civil, social, andculturalaspects of citizenship,and that such disjunctionscan delegitimatepolitical democracy,then it seems rightto insist that the extension of democracyto the social sphereis as centralto the concept of democracyas its extension to the political. It seems rightto arguethatthese extensions are reciprocaland mutuallydefining. It then becomes unnecessaryto arguethatdemocracy'sdisjunctionsare incidentalor extraneousto the theory.
The Democratic Rule of Law

One of the consequencesof maintainingthe political definitionof democracy is that the meaning of the rule of law is seldom investigatedin studies of democratization,and the crucial question of the performanceof the justice system seldom posed. Rather,it is usually assumedthatbecause the rule of law is of political democracywill a fundamentof democracy,the institutionalization democratic.30 that is a rule of law However, the study of inherently produce electoraldemocracieslike Brazil thatare also uncivil indicatesthatthe relation It shows the need betweendemocracyandthe rule of law is far more uncertain. to assess, ratherthan assume, this relation.In Brazil, there is no doubt that violence againstcitizens and disrespectfor law have increasedafter the formal transitionto democracy. When we analyze the civil sphereof citizenshipin termsof its legal, moral, it becomes evident thatthe rights,institutions,and and performative attributes, it substance which requiremore thanformallegislation or an ingive practices of deJustas the institutionalization to become effective. dependentlegislature mocraticpolitical rights does not by itself secure the integrityor development of a democracy'scivil sphere,our analysisof violence in Brazil shows thatcivil rights do not depend only on legislaturesto draftlaws. More than executive and legislative initiatives, civil rights depend on the justice system to secure their realization.Although Marshallidentifiedthe importanceof the courts in this regard,the justice system entails many more elements thanhe recognized, all of which arecrucial to the realizationof the civil sphereof citizenship.The justice system includes the courts with their bureaucracyand administration,
30 Thus, it is very generallypresumedthatpolitical democraciesguaranteea greaterrespectfor law andhumandignitythantheirauthoritarian predecessors.Indeed,in manyLatinAmericancounwith democof dictatorship for the replacement tries,this suppositiongroundedpoliticalarguments racy.When political democracyfinally came, it was thus burdenedwith an expectationin this regard that it could not meet in many cases. As a result, many inauguraldemocraticgovernmentsat and loss of prestige. the nationaland local levels suffereddisappointments

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the bar,law schools, and the police (even though some of its divisions may be partof the executive branchof government),all organizedin termsof the rule of law. Basic to these elements is the rightto justice, the rightto all otherrights. Each in its own way, these various agents of the justice system establish a reciprocitybetween the power of law at their disposal and the capacity of people and institutionsto act accordingto expectationsaboutthe rule of law and their rightto justice. In emphasizingthis reciprocity,however,we do not mean to say thatthe rule of law as a scheme of rules, procedures,principles,and institutionsnecessariuncivil democracydemonly legitimatesor securesdemocracy.To the contrary, stratesthat the relationbetween rule of law and democracyis not a given. It mustbe assessed in specific cases, not assumedin general.This conclusionsuggests three correlates.One is that, as we have seen, political democratization does not necessarily producea rule of law centeredon democraticconsiderations. The second is that the rule of law is not necessarily democratic.It may be necessary for full democracy,but it is not exclusive to it. We have only to think of England's constitutionalmonarchy,France'sphysiocraticdespotism, Nazi Germany'slegally constitutedgovernment,and South African apartheid to realize that the rule of law can coexist with non-democratic political forms, is not necessarilyjust, and can be focused on non-democraticconcerns. Both of these correlationscontradict commonidealizationsaboutdemocracyandthe rule of law. The thirdcorrelateis thatthe kind of rule of law that is a prerequisite for democracyneeds to be gauged, as we suggest below, to the concernsof democraticcitizenship. There are a numberof ways to understand the rule of law that are useful in out its relation to One can view it as an amalgamation over sorting democracy. time of essential characteristics, as do many historiansof law. If we examine the nine hundred-year Germantraditionof Rechtsstaat,it becomes evident that the ancientconcept of a "government of law and not of men"embodyingthese characteristics does not have a democraticorigin. It also becomes clear thatthe rule of law correlatesin specific ways with various political forms, though it develops most often with democracy(see Skinner 1989 for this correlation). However,one can also considersuch an essentializedspecificationof the rule of law impossible, and even undesirablein both a theoretical and practical sense. One can try insteadto give it an abstracttheoreticalaccount,as do legal theoristsRonald Dworkin and Cass R. Sunstein. From opposed perspectives, they both analyze the natureof the legal, and the reasoningpeculiarto its rule. Thus Dworkin writes: Thelawof a community on thisaccount is thescheme of rights andresponsibilities that meet[thefollowing] because complexstandard: theylicensecoercion theyflow from decisions of therightsort.Theyaretherefore andresponpast[political] "legal" rights sibilities. Thischaracterization of theconcept of lawsetsout,in suitably airyform,what is sometimes calledthe"rule" of law(1986:93).

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the With very differenttheoreticalintentions,Sunstein (1996:12) understands discretion"and rule of law as a combinationof rules that limit "untrammeled forms of discretionthat limit rule-bound justice so as to "makespace for particularisticforms of argument." disDespite otherdifferences,both DworkinandSunsteindrawan important the rule of law: a rule of law tinctionbetween law andjustice in characterizing can be legal but not particularly just. Dworkin(1986:97-98) proposesthatlaw establishes which rightsjustify using or withholdingthe coercive force of the of rights.Thus, jusstate, while justice establishesthe best theory or standard tice is a matterof a moralor political theoryaboutthe rightfulmeasuresof human conduct.AlthoughDworkinviews theoriesof justice as "imposedby personal convictions," we suggest that democracy offers a more compelling considerationof justice, if not a theory.Sunsteinarguesthat withtheruleof lawmustbejust... Totake it cannot be saidthata systemcomplying was in South Africa of apartheid withthesystem thefundamental oneexample, problem of thebasicfeatures theruleof law.Onthecontrary, notthatit violated emphatically consistent withtheruleof law.Rulesdo notguarantee couldbe made entirely apartheid justice(1996:193). If we cannotassumethata rule of law is democratic,or thatpolitical democracies have a democraticrule of law, then we have to investigatethe extent to which a particularrule of law engages and realizes a project for democracy. Such a rule of law is necessaryfor full democraticcitizenship,on which the legitimacy of democracyas both a political and a social project ultimately depends. This necessity is easy to show. We can imagine fair trialsoccurringunder non-democratic regimes and unfairtrailsunderdemocraticones. However, we cannot imagine anythingother than a sham democracywithout fair trials. Therefore,a democracymust secure the legitimacy of law on its own termsof citizenship.If not, it becomes discredited. What,then, does a democraticrule of law entail and how does a democracy and complex questionsthat we cansecure it? These are immensely important not adequatelyaddresshere. Basically, we agree with Sunstein'sproposalthat the best way to securejustice befitting a democracyis not to suppose that the rule of law is intrinsicallyjust or democratic,but to referenceit to criteriaof justice forged in the democraticarenasof society. In askinghow a legal system supportsa well-functioningdemocracyand vice-versa we want to know how the system responds to considerationsthat favor democratic outcomes and rule of law processes. One way to learnthis is by focusing on how a particular realizesthe values of justice thataregermaneto democraticcitizenship.We can referencewhat goes on in the legal system to such criteriaand evaluateits performance.We want to propose three kinds of considerationfor furtherstudy. First,we can determinewhetherthe exercise of judicial and police authorityis justifiablein termsof the powers and limits establishedin a democraticconstiof a legal system in relationto tution.Second, we can analyze the performance

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democraticdevelopmentthatareweakest and least those aspectsof a particular reliable. For example, we can evaluate how the judiciary reacts when fundamental civil rights are at stake, or when a disadvantagedminorityor a politically vulnerablegroupis at risk. Finally,we can evaluatea rule of law in terms of the degree to which citizens participate in thejustice system, and to which it is accountableto their oversight.The latterhas been analyzedmostly in terms of civilian oversight of the police (see Chevigny, 1995). Accountabilityof the courts to citizens has not received comparablestudy,perhapsbecause it is often thoughtthat adjudication ought to be protectedfrom democraticinfluence. But the problemsof uncivil democracyindicate that a measureof citizen participation in the judicial process and in the oversight of judges would both broadenaccess to justice and encouragethe judiciaryto respondmore directly to democraticchange. The means of such citizen participation include the jury system, alternative disputeresolution,thejudicial appointment process,andthe externalreview, election, and recall of judges. Citizens of an electoraldemocracywith a democraticrule of law participate not only in free elections and variousforms of political association,but also in a justice system in which they are confidentof fair and equitabletreatment, to which they have reasonableaccess, to which all are liable, which is accountable to theiroversightin significantways, and which regulatesaccordingto the due process of law not only theirpracticesbut also those of the stateas a legally constitutedand accountableagent of society. These five sorts of consideraandlegality-characterize tions-fairness, access, universality, accountability, a democraticprojectfor a rule of law. That a rule of law has never existed in such perfectiondoes not lessen the importanceof an approximation. That imbecomes as soon as that to their portance apparent people perceive right justice lacks institutionalconsolidation,above all in the courts.As we have seen, citizens of an electoral democracy without a democraticrule of law find themselves in a disastrouschain reaction:the justice system and those who defend it become discredited,impunityand violence prevail, and largely as a result, a cultureof vigilantism,exceptionalism,andprivatizedpowerpredominates. Uncivil democracyresults.
Other Histories, Other Democracies

If democracywith mass citizenship has been one of the hallmarksof Western has rarelyconsideredviolence amongcitizens modernity,its conceptualization as a characteristic, ratherthan episodic condition of its development.Instead, democratictheoryin the West has generallyproceededas if the problemof internalviolence had alreadybeen solved. Thatis, it assumes the pacificationof societal violence throughthe development of a civilizing process in Norbert Elias's sense, the moderndisciplines in Foucault'ssense, or the modernnationstate that combines rule of law with the monopolizationof the means of coercion, in Max Weber'ssense, and uses these developmentsto control violence.

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Democratic theory has thus assumed that the problem of internal violence againstcitizens has been resolved-or, better,dissolved-by assigningit to the Westerndevelopmentof cultureand the nation-state. However, studying the new democracies like Brazil reveals the extent to which this supposedresolutionof violence is an expression-even a charadeof the particular histories of a few nation-states,ratherthan a general or universal traitof democratization itself. In the new non-Western democratization, violence remainsentangledwith democracy.This entanglementis distinctive because people both engage and oppose democratization in the idioms of violent social relationsthatremainconstitutiveof societies with differentcultures and histories. Many are like Brazil in that they have political democraciesin which citizens suffersystematicviolence from forces of public andprivate,orcoercion, which act with the confidence of impunity. ganized and unorganized In these democracies,the citizen's body is not boundedand protectedby civil rights. Rather,it is vulnerableto this violence and trappedin the reproduction of it that privatizedjustice promotes.Culturesof fear, indifference,illegality, andabuseof powercharacteristically withinthe publicbody of these proliferate political democracies,coexisting with democraticvalues of public life. In this urbanpublic space becomes both newly politicized political democratization, and newly dangerous,is alternativelyabandonedand fortified.In these political democracies,the rule of law becomes both brutallyviolent and ineffective to combatviolence. At this point,thereare few studiesof the new democraciesin these more anthropologicalterms.FernandoCoronilandJulie Skurski(1991) show how political violence in Venezuelais regularlyreenactedin democraticcontexts.They arguethat violence is "wielded and resisted"(289) in the terms of a society's distinctivehistory,in relationto which, therefore,it has to be analyzed. Conviolence in Venezuela,they suggest, continuesto be framed"inContemporary quest terms,"mobilizing notions of a barbaricpeople and a civilizing government(of elites). Theirstudyis an exampleof anothertype of cultureandhistory in which modernizationand democraticpolitics have always been entangled with violence. Taussig (1987) demonstratesa similarprocess for Colombia in his study of the use of violence in the rubberboom and the creationof what he calls a "cultureof terrorand space of death"(1987:3). His analysis also shows how the internalpacificationof Europeanstatesandthe creationof a cultureof fear in LatinAmericacoincided. These studiessuggestthatas morecountriesdemocratize,anddemocracybecomes more diverse, the specificities of its Europeanand NorthAmericanexperience-including its relationto internalviolence-become more apparent. In this context, it seems unlikely thatpolitical theoriesof democracyanchored in these specificities of Westernhistory and culture are adequatefor underexperience.But if that standingdemocracy'sglobal reach and its non-Western is the case, how do we assess the quality of democracyin such diverse situa-

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tions?Are there,fundamentally, culturallydifferentways of being democratic? Are there, in other words, alternativeconfigurationsof democracyand different ways of reachingit? Or areclaims of real differencemerely excuses for undemocraticpractices?To what extent can democracybe culturallyrelativized before it becomes unrecognizable? How do we establish the limits of what constitutesan alternativeformation of democracyandnot a differentorderof being?This is, admittedly,a complex anddifficultproject.But thatdifficulty shouldnot blind us to the differencesof history with regardto democracy.It should not make the minimalpolitical definition an attractiveresponse to the increasingdiversity of democracy.If that definitionhas the advantageof being parsimonious-and to that extent seemingly universal-we hope we have shown thatit is superficialbecause it misses many of the principaldilemmas of contemporarydemocratization. At this point, however, there are too few studies of the social and culturalconditions of citizenshipin the new political democraciesto answerthe kinds of questions just posed. We have suggested thatthinkingaboutdemocracyas disjunctiveis useful in studyingthese conditionsbecause the premiseof this approachis that although all contemporarydemocracies are markedby disjunctions,they are not necessarilyor even likely to be disjunctivein the same ways. This approach dependson the idea thatdifferentsocieties and culturesmust, by force of their differenthistories, producedifferencesin democracy.Therefore,there is not a single model, recipe, history, or cultureof democracy.Although we have not discussed the disjunctionsof Americandemocracy,for example, they are not difficult to specify in terms of the weakness of socio-economic rights for all Americans,the violent disrespectof civil rightsfor some, andthe excessive professionalizationof politics. Specifying the disjunctive qualities of a democracy-describing Brazilian democracy as uncivil, for example-refers to and criticizes only specific aspects of what is normallya complex democraticproject.It does not condemn the entireproject.Moreover,it does not supposethatbecomingcivil meansnecessarily becoming just like some other democracy.Uncivil democracies are democracies nevertheless, with complex disjunctionsthat need to be understood as inherentto democraticdevelopment. The problem is to account for their disjunctionsfrom within the process of democratizationwithout disrespecting their democratic intentions, or predeterminingthe antidote to their problemson the basis of convergence to ideal types that are modeled on particular,and usuallyWesternexamples. If, as we think,such convergenceis unlikely, then democratictheory must adaptto the developmentof new species.
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