Sally Engle Merry: Shaping the Anthropology of Law

I am grateful to the editors of the Journal of Legal Pluralism for asking me to offer some reflections on the contributions of Sally Engle Merry to the anthropology of law. Rather than a more traditional "in memoriam" or obituary, I thought that I would provide a more substantive discussion of the ways in which Sally's professional life and research career shaped the field in ways that will be felt for many years to come.¹

These contributions can be divided into three categories: institutional, intellectual, and methodological. In describing the ways in which Sally shaped the development of the anthropology of law through these three categories, I will only highlight the key interventions or concepts that seem to me to best crystallize the scope of Sally's lasting influence.

Institutionally, Sally played a fundamental role in promoting the growth of the anthropology of law both within and beyond the discipline. Her entry to the field in the early to mid-1980s coincided with the rapid expansion of what is called in the United States the law and society movement, which gives some indication of the way in which scholars wanted to do more than simply conduct sociolegal research: they wanted to transform the understanding of law itself by studying it as a consequential social process.

Within the law and society movement, Sally became one of the leading voices for anthropology and the ethnographic approach to sociolegal research. Along with a few other anthropologists at the time, Sally worked to ensure that the anthropology of law became well-established among the other, and typically more powerful, disciplines—academic law, political science, sociology—that constituted the core of the law and society project. Her success as an advocate for the anthropology of law within the US Law and Society Association (LSA) was marked by a number of high-level accomplishments: she served as LSA President from 1993-1995; she won the LSA's book prize in sociolegal history in 2002 (for Colonizing Hawai'i: The Cultural Power of Law, published by Princeton University Press); and, in 2007, was awarded the LSA's most prestigious award, the Harry J. Kalven Jr. Prize, which is given to scholars who are held in the highest regard by their colleagues (the official description is for "empirical scholarship that has contributed most effectively to the advancement of research in law and society").

The reason Sally's place as a leading law and society scholar is important is that she—again, along with a few others, but only a very few—raised the visibility and bolstered the legitimacy of the anthropology of law beyond the discipline itself during the decades in which "legal anthropology" struggled to maintain the kind of dynamism and even urgency that were associated with other sub-fields of anthropology during the 1980s and 1990s, such as medical anthropology, economic anthropology, postcolonial anthropology, and the wider postmodern critique of anthropological history and methodologies.

Yet eventually, Sally came home, as it were, from her long journey within the law and society movement, and she brought the same energy and passion for the anthropology of law with her. She worked to revitalize the Association for Political and Legal Anthropology (APLA) and to build the association's former newsletter into a respected anthropological journal, the Political and Legal Anthropology Review (PoLAR). As President of APLA and co-editor of PoLAR, and then later in different capacities, Sally anchored the emergence of the anthropology of law as a leading-edge disciplinary domain concerned with questions of power, hegemony, resistance, and justice, among others. It was part of Sally's institutional genius that she saw both the epistemological and practical advantages in maintaining the political and legal as co-equal organizing logics for the field, a way, perhaps, of reproducing the interdisciplinary openness of the law and society movement within anthropology.²

At the same time, Sally's institutional influence was becoming much more international. It should be remembered that before Sally moved to New York University in 2005, she had spent the first thirty years of her career teaching undergraduate students at her alma mater, Wellesley College. This created a highly unusual situation, one that would be largely unthinkable outside the unique world of US liberal arts colleges: despite her growing stature as one of the leading anthropologists of law in the world, Sally didn't have Ph.D. students of her own for most of her career. Yet she was in high international demand with students, who sought her out as a mentor for Ph.D. and postdoctoral projects; to write letters of recommendation; to serve as a discussant on conference panels; and, more generally, to help navigate the perilous paths of academic networks. In a way, not having her own Ph.D. students until she moved to NYU freed Sally to become a mentor without borders, a status she continued to embrace even after being in a position to recruit doctoral students of her own.

In 2000, Sally's influence as an international mentor to anthropologists of law was formalized through her role in the founding of the project group on legal pluralism within the Max Planck Institute for Social Anthropology in Halle, Germany, which had been established in 1999. The project group, co-directed by Franz and Keebet von Benda-Beckmann, quickly became a major center for the anthropology of law. The Institute's conferences drew attendees and guest researchers to Halle from all over the world to an unparalleled environment in which scholars at all stages of their careers could build (or reinforce) relationships across cultural, linguistic, and national boundaries. Sally served on the advisory board for the project group and participated in many events over the years. She was valued both by junior colleagues and students in Halle, and by the co-directors of the legal pluralism project group, who turned to Sally for advice as the project group eventually developed into a distinct department of law and anthropology in 2012.³

Intellectually, Sally shaped the development of the anthropology of law over several decades through an expansive body of highly-cited publications in which she examined the lived realities of law with tremendous clarity, insight, and descriptive rigor. Although there are any number of examples that could be given, I think three contributions, in particular, give a rounded sense of Sally's intellectual influence on the anthropology of law over the arc of her career.⁴ First, it is important to remember that Sally began as a researcher of legal identities and practices within cities of the US Northeast, especially Massachusetts. Among other things, the close proximity of her first field sites allowed her to participate in an important regional network of scholars who were collectively advancing the interdisciplinary field of sociolegal studies, inspired in part by the dynamic current known as "critical legal studies."

This network, which was established in the early 1980s in Amherst, Massachusetts, brought together like-minded scholars in order to examine problems of ideology, process, and consciousness beyond the conventional boundaries of both legal practice and scholarship. Many of these participants in what became known as Legal Consciousness Studies (LSC) would go on to become, like Sally herself, key figures in both the law and society movement, and in their various disciplines.⁵ Throughout much of the 1980s, Sally honed her theoretical understanding of law and legal practice at the same time she was conducing ethnographic fieldwork among the courthouses and mediation programs of Salem and Cambridge, Massachusetts. Instead of following existing paradigms by focusing on rules and processes, or on dispute resolution mechanisms, Sally did something radically different: she explored the ways in which mostly working-class people thought about law and its meanings, and considered their social relationship with it.

The result was a landmark study in the anthropology of law, in which Sally explores the contours of what she describes as the "paradox of legal entitlement": working-class Americans feel entitled to use the law in order to resolve their problems, yet lose power over their lives—and personal conflicts—when they make use of this entitlement. As she puts it, "the use of law by those at the bottom of the social hierarchy empowers the individual with relation to his or her neighbors and family members … but he or she loses control over this power … Thus, the use of the courts furthers the subordination of the working class to those who manage and dispense court services."⁶

Motivated in part by her research on domestic violence in Massachusetts and Hawai'i, Sally became interested in the global dimensions of the growing transnational movement against domestic violence, a movement that had been catalyzed by the wider proliferation of human rights activism during the first decade after the end of the Cold War. Between 1999 and 2003, she directed a large-scale research project on the global system that monitors the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). As a consequence of the unique methodology used in the project (see below), Sally observed that the meaning and significance of international human rights norms did not remain fixed. Instead, they were constantly being translated between and among different levels in the system, a process of “vernacularization” that came to modify, in important ways, the content of the norms themselves.⁷

Importantly, the centrality of the concept of vernacularization in Sally's research and writing on the global human rights system represented a significant shift from the way she first introduced the idea in the mid-1990s. Based on a relatively limited period of research around a 1993 “people's tribunal” in Hawai'i, in which the US government was put on trial by the Hawaiian sovereignty movement for the crimes of colonialism and cultural destruction, Sally argued that this indigenous movement created a novel form of “vernacular” law that reinterpreted international human rights through native Hawaiian cultural categories.⁸

However, after conducting extended research on processes of translation in different historical and political contexts, Sally moved away from this earlier, aspirational, sense of vernacularization. By the early to mid-2000s, she had reformulated the meaning of vernacularization to describe the largely strategic processes of negotiation that were controlled by transnational activists and intermediating human rights entrepreneurs. In a theoretical shift that mirrored wider shifts in the ongoing globalization of human rights itself, vernacularization had lost much of its empowering potential and had become, rather, a more ambiguous mechanism in relation to movements for justice and cultural autonomy.

It was this latter, strategic version of human rights vernacularization that exerted an enormous influence on subsequent studies of the practice of human rights, both within anthropology and beyond. Indeed, in many ways the transversal power of the concept could be seen most clearly outside of disciplinary debates, where the idea of vernacularization was eagerly taken up by a wide range of scholars and officials, from legal philosophers to UN policy-makers. In this way, the concept itself worked as a form of translation, as a way of vernacularizing the anthropology of law within broader communities of human rights scholarship and activism.

As an extension of her research on the diffusion of global human rights norms, Sally observed something apart from processes of translation. Beyond the normative dimensions of human rights promotion, much of the institutional attention seemed to be focused on highly technical debates over measurement: how specific categories of human rights compliance were measured; how the statistics behind these categories were produced, and by whom; and was it even possible to reduce the complexities of social, political, and economic conflict to quantitative indicators that could be compared at a global level.

These questions drove what became Sally's last major research project, which led to yet another important intellectual contribution to the anthropology of law. Between 2009 and 2015, Sally directed an innovative study of what she describes as "indicator culture": the increasing global dominance of quantitative measurement as a technology of knowledge production and governance. In examining the ways in which the complexities of human rights compliance, gender violence, and sex trafficking are re-interpreted through statistical comparison, Sally discovered an important problem with wider implications—the problem of commensuration.⁹

As Sally shows, commensuration functions as an ideology of truth that is necessary for policy-making, government budgeting, and even legitimacy in the eyes of the public. Through commensuration, the measurement of complex social phenomena relies on a process of aggregation in which categories—like "severe and moderate violence" against women—become more and more detached from the phenomena they purport to objectively measure. By the time a specific indicator claims to measure something like "severe and moderate violence" against women at a national level, the descriptive distance between the national index and the complexities of local level phenomena has become so great as to render the index virtually meaningless—that is, as a way of capturing or understanding the realities of violence against women. Yet as the basis of "evidence-based governance" at national, regional, and international levels, such elision through commensuration is actually a prerequisite in order for an indicator to "succeed in policy and public domains … within a rich ecology of competing indicators … in which the simplest and most coherent often prevail."¹⁰

And finally, Sally's methodological contributions to the anthropology of law have been no less far-reaching. Above all, what stands out is her painstaking, forty-year commitment to ethnography as the foundation for a particular way of studying legal processes and consciousness. Yet even though she kept ethnographic research at the center of her many projects, Sally constantly reimagined the possibilities for ethnography in ways that dramatically enlarged the anthropology of law toolkit.

For example, her study of the role of law in the colonization of Hawai'i led her to develop a method she described as “historical ethnography,” a way of projecting the ethnographer's gaze back in time in order to capture social relations, networks, and conflicts that had remained hidden to existing historical accounts. At the same time, she used another methodological variation, something she called “ethnography in the archives,” in order to tease from the historical record “the microphysics of power embedded in the margins and interstices of institutions."¹¹

With her study of the CEDAW monitoring system, Sally pushed the boundaries of ethnographic research even further. Instead of a single field site or even country, Sally adopted a wide-ranging approach she described as "deterritorialized ethnography." Subtly different from the concept of "multisited ethnography" associated with George Marcus, deterritorialized ethnography—according to Sally—"comes closer to the notion that [the practice of human rights] … exists in various spaces but is not grounded in any one of them."¹² As she further explains, deterritorialized ethnography implies "ethnographic engagement with the fragments of [the wider human rights] system" precisely because the system itself is "neither coherent nor fully graspable."¹³

Sally explored the potential of deterritorialized ethnography again for her final research project on human rights indicators. Even more than the fragments of a system, the "ethnography of indicators" was the study of an ideology behind the emergence of an "indicator culture," in which the "seductions of quantification" charmed a global public through a heterogenous mélange of technocratic practices, documents, and institutional demands. With the ethnography of indicators, Sally had perhaps pushed the methodology to which she had dedicated a career of research and teaching to its outer limits.

Despite the valiant and drawn-out battle against the illness to which she would finally succumb, Sally continued to imagine ways in which her research might contribute to the development of the anthropology of law. In December 2018, during an international conference at the Harnack-Haus in Berlin, she told me she had plans to launch one final project, perhaps by returning to Hawai'i to continue working on questions of law and colonialism. Although it is both agonizing and tantalizing to think about the further innovations that would have emerged through such a project, what Sally did leave behind was more than enough: an unparalleled legacy of institutional, intellectual, and methodological influence on the anthropology of law that will long endure.

Notes

1 Different tributes to Sally Engle Merry have appeared in a number of places, including through the Political and Legal Anthropological Review (PoLAR), polarjournal.org/2020/09/14/remembering-sally-engle-merry/, and at a memorial page created by the Law and Society Association: lawandsociety.site-ym.com/news/525617/Please-Express-Your-Condolences-for-Former-LSA-President-Sally-Merry.htm. I should also mention that I was commissioned to write Sally's obituary by American Anthropologist, which will appear in late-2021.

2 Indeed, many years later, Sally gave me advice precisely along these lines. After finishing long-term ethnographic research in Bolivia, I explained to her that I had enough data (over ten years of research) for at least two books, one on the legal dimensions of the period 2006-2016 and another on the political and ideological dimensions. Without hesitating, Sally said, "that would be a mistake. If you do two books, you will be forced to treat law and politics as separate, when I'm sure they are bound up with each other in Bolivia." She was right, of course; the resulting study treated the legal, political, and ideological aspects of the "process of change" in Bolivia as tightly—if, at times, problematically—interconnected. See Mark Goodale (2019), A Revolution in Fragments: Traversing Scales of Justice, Ideology, and Practice in Bolivia. Durham: Duke University Press.

3 I thank Keebet von Benda-Beckmann for kindly sharing her thoughts on Sally's role in the creation and development of the legal pluralism project group in Halle between 2000 and 2012. It should be noted that after participating in the process that led to the evolution of the legal pluralism project group into a new department, Sally then served on the Consultative Committee of the Department of Law and Anthropology—under the directorship of Marie-Claire Foblets—from 2012 until her death in 2020, which meant that Sally was a key mentor and advisor on anthropology and law at Halle for two decades.

4 In making a selection such as this—for reasons of space—I am necessarily omitting reference to a number of other major contributions from Sally's body of work, including her historical study of law and colonialism based on research in Hawai'i during the 1990s, and her general overview to the problem of gender violence.

5 These include Austin Sarat, Susan Silbey, Christine Harrington, Patricia Ewick, Barbara Yngvesson, and John Brigham.

6 Sally Engle Merry (1990), Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. Chicago: University of Chicago Press, pp. 181-182. Sally's 1990 book was published with two others in order to launch the book series that later became the Chicago Series in Law and Society, edited for many years by John M. Conley and William M. O'Barr. However, the series was originally concerned with more limited questions of "language and legal discourse." Indeed, besides Conley and O'Barr's own Rules versus Relationships: The Ethnography of Legal Discourse, the third inaugural book in the series was a fascinating study of court interpreters by the linguist Susan Berk-Seligson, entitled The Bilingual Courtroom: Court Interpreters in the Judicial Process.

7 See Sally Engle Merry (2006a), Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press. See also Sally Engle Merry (2006b), “Transnational Human Rights and Local Activism: Mapping the Middle.” American Anthropologist (108)1: 38-51.

8 Sally Engle Merry (1996), “Legal Vernacularization and Ka Ho’okolokolonui Kanaka Maoli, The People’s International Tribunal, Hawai’i 1993,” Political and Legal Anthropology Review (19)1: 67-82; Sally Engle Merry (1997), “Legal Pluralism and Transnational Culture: The Ka Ho’okolokolonui Kanaka Maoli Tribunal, Hawai’i, 1993,” in Richard A. Wilson (ed.), Human Rights, Culture and Context: Anthropological Perspectives. London: Pluto Press, pp. 28-48.

9 Sally Engle Merry (2016), The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking. Chicago: University of Chicago Press. See also Sally Engle Merry and Summer Wood (2015), "Quantification and the Paradox of Measurement: Translating Children's Rights in Tanzania," Current Anthropology (56)2: 205-229.

10 The Seductions of Quantification, p. 20.

11 Sally Engle Merry (2002), "Ethnography in the Archives," in June Starr and Mark Goodale (eds.), Practicing Ethnography in Law: New Dialogues, Enduring Methods. New York: Palgrave Macmillan. Pp. 128-142, 137.

12 Human Rights and Gender Violence, p. 29.

13 Ibid.