Postscript to Legal Vernacularization and Transnational Culture: The Ka Ho’okolokolonui Kanaka Maoli, Hawai’i

Reading this article twenty years after I wrote it, I am intrigued to find that my interest in what I call legal vernacularization began at this Hawaiian tribunal rather than in the world of NGOs and human rights activism, which I wrote about subsequently. This trial was indeed rich with multiple forms of law, from international law to nation-state law to indigenous Hawaiian law to people’s law. This multiplicity and the way various systems intersected, often by actors using them creatively, inspired me to turn to the study of human rights, another form of law outside state law. The intriguing feature of this trial, as in the anti-gender-based-violence movements I studied subsequently, is the role that law plays both as an instrument of power, supporting the interests of dominant groups, as well as a mechanism for challenging power by weaker groups.  In both cases, there is a mobilization of law to challenge forms of behavior that are sanctioned by law—to attack injustices that are themselves part of the way state legality operates.

In the Hawaiian case, the sovereignty movement is challenging the US takeover of the islands in 1898, following the successful coup by local Americans, supported by the US military, in 1893. While the perpetrators of the 1893 coup made some pretense to legality, the 1898 US takeover clearly followed the legal form of a vote in Congress, although only as a joint resolution, not a formal annexation. What was clearly an act of power took on legal forms to render it legitimate.

Similarly, much of the campaign against violence against women has focused on criminalizing batterers and changing state practices of impunity for batterers, where violence against women has been seen as a private matter in the domain of the family. Activists focused on state indifference to violent acts against women, particularly in the family, and demanded more law, more intervention by the state. Yet, for some communities, particularly communities of color, inviting the state into family relationships posed another difficult problem, since they already faced extensive policing and sometimes unfair treatment from the police. The Color of Violence movement and the organization Incite! highlighted this problem.

In both cases, despite the origins of each issue in legal arrangements, including legal indifference to gender-based violence, law serves as a resource for activists.  It is a resource both in its performative dimensions, as in the People’s International Tribunal, and in its substance.  For example, a group of battered women activists in New York City prepared a report on the extent to which the New York City family courts failed to adhere to human rights principles in the way they dealt with battered women’s legal and custody issues (Merry et al. 2010). Intriguingly, law is both a mode of establishing the power of dominant groups and a resource for weaker groups.

It is this feature of law, in all its pluralist forms, that has been a theme in my research over many years and in sites as varied as community mediation programs in New England, displaced daughters in Hong Kong, women’s crisis programs in Hawai’i, and residents of a low-income housing project in Boston who turned to the courts for help with cases of interpersonal violence, even as they saw the police and their car chases and shooting as a source of danger. As development experts and human rights activists advocate the rule of law as a solution to current problems of corruption, inequality, and violence, understanding this duality of law becomes ever more important. As Critical Legal Scholars pointed out years ago, law is an instrument of the powerful, but as E.P. Thompson (1975) noted, also years ago, from time to time it delivers something like justice.  What is intriguing about this dual nature of law is the extent to which faith in law survives even in the face of its inequities and inadequacy.

My current work on indicators as a technology of governance reveals a similar duality in the role of quantification both as a site of power and as a technique of resistance (Merry 2016). Those who have the power to determine what is counted, how it is counted, and what it is called can construct a particular vision of the world. Numbers play a critical role in making an issue visible or burying it.  For example, a survey carried out in a sensitive, feminist way with multiple opportunities for disclosure may reveal a world full of violence against women, while a survey done quickly, in the presence of male family members or with a very limited definition of violence against women, can show a society in which such violence is very rare. The knowledge produced by these two approaches then determines whether this is a serious problem requiring extensive intervention or a relatively small one. Those who have the power and resources to construct and carry out the survey produce the knowledge that shapes how it is understood and managed. This is a quiet form of power, but a significant one in the contemporary world (Merry, Davis, and Kingsbury 2015).

Yet, quantification is essential to reveal discriminatory practices, the failure of courts to intervene in cases of violence, or inequalities in access to jobs or education. Quantification makes problems visible by documenting them. At the same time, if issues are not named, counted, and analyzed, they go away or remain invisible. Quantification has the power to make things known or to bury them, much as law does. By defining a problem a legal one, it becomes visible through the lens of justice and rights. Yet, this also means converting wrongs that may be fundamentally moral into legal ones. In fact, one could argue that the US takeover of Hawai’i was legal, but immoral. However, resorting to legal forms and language, the moral claim may be lost.

In sum, the People’s International Tribunal in Hawai’i offers insight into the way that law provides and obscures justice, offering a language of rights and claims at the same time as it legitimates acts of power such as the US annexation of the Hawaiian Islands. Quantification, another form of knowledge production, acts in similar ways, both making visible and concealing.    These are critically important issues to understand in a world in which law and quantification are increasingly promoted as the path to modernity, and in which their role in maintaining relations of power are often less centrally recognized.

References

Merry, Sally Engle. 2006. Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press.

—. 2016. The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking. Chicago: University of Chicago Press.

Merry, Sally Engle, Kevin Davis, and Benedict Kingsbury, eds. 2015. The Quiet Power of Indicators: Measuring Governance, Corruption, and Rule of Law. Cambridge: Cambridge University Press.

Merry, Sally Engle, Peggy Levitt, Mihaela Serban Rosen, and Diana H. Yoon. 2010. “Law from Below: Women’s Human Rights and Social Movements in New York City.” Law and Society Review 44(1): 101-128.

Thompson, E.P. 1975. Whigs and Hunters: The Origin of the Black Act.  New York: Pantheon.