McGill Law Journal Revue de droit de McGill
MCGILL CONVOCATION ADDRESS: LEGAL
PLURALISM IN PRACTICE
Sally Engle Merry*
EDITORS NOTE
Professor Sally Engle Merry was awarded an
Honourary Doctor of Laws at the McGill Faculty of
Laws 2013 convocation ceremony. A leading Amer-
ican legal anthropologist, she reminds us in her
graduation address of the importance of legal plu-
ralist frameworknot only to the study of law, but
also to a general understanding of human interac-
tion. She demonstrates the need for jurists to be
alert to the effects of overlapping legal systems us-
ing examples of her varied experiences studying
these systems multidimensional roles in society
in colonial Hawaii, the urban United States, and
East and Southeast Asia, among other locations
and her analyses of the manner in which different
levels of law interact to ensure the protection of
human rights.
Moreover, Professor Merrys own career illus-
trates to graduating law students the lengthy
reach of legal scholarship into other academic
fields and walks of life: her interdisciplinary re-
search interweaves an understanding of legal tra-
ditions with examinations of governance, colonial-
ism, human rights, and race and gender issues.
Her work and the insights of her graduation ad-
dress both exemplify one of the aims of McGills le-
gal education program: to prepare jurists not only
to practice or study law but also to recognize and
explore its reach into all aspects of everyday life. It
is the McGill Law Journals privilege to share Pro-
fessor Merrys ideas with a broader audience and
to dedicate the publication of her address to the
Faculty of Laws 2013 graduating class.
MOT DE LA RDACTRICE
Lors de la crmonie de remise des diplmes du
printemps 2013, la Facult de droit de lUniversit
McGill a remis un doctorat honorifique en droit la
professeure Sally Engle Merry. Anthropologue judi-
ciaire minente aux tats-Unis, elle a rappel dans
son discours limportance dun cadre juridique plura-
liste, tant pour ltude du droit que pour une meilleure
comprhension des rapports humains en gnral. Elle
montre que les juristes se doivent dtre sensibles aux
effets de la coexistence de diffrents systmes juri-
diques. Elle sappuie pour cela sur ses diverses exp-
riences accumules lors de ses travaux de recherche
sur les rles multidimensionnels de ces systmes dans
la socit tel que, entre autres, la socit ha-
waenne postcoloniale, les milieux urbains amri-
cains, de lAsie de lEst et de lAsie du Sud-Est.
Elle sappuie galement sur ses analyses portant
sur la faon dont linteraction des diffrents niveaux
de lgislations assure la protection des droits de
lhomme. La carrire de la professeure Merry donne
aux finissants en droit un excellent exemple de la por-
te significative de la recherche juridique pouvant
toucher dautres disciplines acadmiques et diffrents
milieux sociaux. Son approche interdisciplinaire allie
une comprhension de diffrentes traditions juri-
diques avec des analyses des questions de gouver-
nance, de colonialisme, de droits de lhomme, de genre
et de race. Ses travaux et son discours de remise des
diplmes illustrent tous deux lun des objectifs de la
Facult de droit de McGill: prparer des juristes non
seulement pratiquer ou tudier le droit, mais aussi
en reconnatre et explorer la porte dans plusieurs
aspects du quotidien. Cest avec grand plaisir que
la Revue de droit de McGill publie le discours de la
professeure Merry pour en faire bnficier une plus
vaste audience et le ddie la promotion 2013 de la
Facult de droit.
* Silver Professor of Anthropology, New York University. On May 31, 2013, McGill Uni-
versity awarded Professor Merry the degree doctor of laws, honoris causa.
Citation: (2013) 59:1 McGill LJ 1 Rfrence : (2013) 59 : 1 RD McGill 1
Sally Engle Merry 2013
2 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
It is a great honour to receive this degree, particularly from a law
school that I have long admired for its commitment to social justice and
human rights and to the concept of legal pluralism. I admire its effort to
see law through the lens of socio-legal analysis, as well as its commitment
to an international and a domestic focus on law. These critical perspec-
tives contribute to McGills visibility and its international reputation as
an excellent law school. Today I want to talk in particular about the value
of a focus on legal pluralism.
McGills Faculty of Law has taken a leading role in developing and
promoting this perspective on law. This is an extremely valuable frame-
work, and I urge you to recognize its value and to hold on to it as you go
out into the world as practicing or academic lawyers. Legal pluralism is
not a theory of law or an explanation of how it functions, but a description
of what law is like. It alerts observers to the fact that law takes many
forms and can exist in parallel regimes. It provides a framework for think-
ing about law, about where to find it and how it works. As such, legal plu-
ralism provides an invaluable guide to thinking about law in its multiple
instantiations and intersections and to paying attention to alternative
understandings and practices of law, particularly among the less powerful
members of a society.
Legal pluralism offers three critical insights about law:
1. It shows that law affects social life in many ways, both inside and
outside formal legal institutions. Law defines identities such as
citizen or alien, allocates who can use which spaces, provides be-
longing through mechanisms such as birth registration, offers se-
curity of ownership to land and houses, and serves as an authori-
tative source for creating knowledge and history. Law is enacted
in multiple places, such as community mediation centres, zoning
hearings, university disciplinary hearings, UN human rights trea-
ty bodies, and professional association ethics committees. Reli-
gious communities often make formal or informal normative
judgments about their members. Legal decisions are made in
these diverse tribunals even when they are not part of formal
state law. Such varied legal sites are often the place for decisions
such as whether a political leader carried out genocide, or whether
a minority religious woman deserves a divorce.
2. These myriad instantiations of law are fragmented, inconsistent,
and contradictory. They are a bricolage built up from practice, his-
tory, and the legacy of efforts to solve earlier problems. Legal prac-
tices may be chaotic and incoherent, as a result of developing from
a variety of local practices, yet they can be more attuned to local
practices than is a remote state law. For example, considerable
LEGAL PLURALISM IN PRACTICE
3
3. anthropological research on small-scale communities, following
Malinowskis pioneering work in the 1920s,1 suggests a disjunction
between local ideas of justice and the formal state law.
4. These systems are constantly interacting with one another and
redefining each other. Law is, in practice, shaped through interac-
tions among multiple legal orders.
The value of legal pluralism as an analytical framework for under-
standing how law works emerged from my research experiences, with
three examples being particularly pertinent. The first emerged during my
research on community mediation in the 1980s.2 I was studying a system
of conflict resolution that claimed to stand outside the American legal sys-
tem. The program handled cases that were taken to court and diverted to
mediation at early stages of the legal process. Most concerned conflicts be-
tween neighbours, spouses, boyfriends and girlfriends, or parents and
children. Much of this alternative dispute resolution movement was
framed as a necessary corrective for an overly litigious society and took a
strong anti-law perspective. It promised to diminish the alienating and
costly use of law for interpersonal and property problems by replacing it
with informal, community-based mediation. Local leaders rather than
lawyers staffed these programs.
I studied one community mediation program attached to a lower court
in Massachusetts, which handled cases people had taken to court. The
programs office was in the courthouse, but the mediation sessions took
place in local schools and churches. At the end of each session, the partic-
ipants were encouraged to sign an agreement. The document had a court
logo at the top, and mediators told the parties that the agreement would
be placed on file with the court. What that meant was never explained,
however. When I interviewed litigants afterward, many thought that the
mediation session was part of the court process and that the agreement
they signed would be enforced by the courtbut, in fact, it had no legal
standing. This is an example of the intersection of plural legalities. The
informal mechanism adopted the trappings and forms of state law, even
when it lacked its formal authority.
Indeed, people using informal mechanisms often seek to make them
appear similar to formal legal institutions. For example, in 2005 I studied
a womens local court in India, called the nari adalat, that handled cases
1 See e.g. Bronislaw Malinowski, Crime and Custom in Savage Society (Paterson: Little-
field Adams, 1959).
2 See Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness Among
Working-Class Americans (Chicago: University of Chicago Press, 1990).
4 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
of domestic violence, divorce, and dowry.3 It had no legal authority, but
over time it began to register cases in a large book, charge filing fees, and
issue decisions on stamp paper, the form of legal decisions used in Brit-
ish and then Indian courts. In effect, the women in the nari adalat appro-
priated the trappings of state law. In these examples, the formal legal sys-
tem slides into other modes of dealing with conflict, as informal systems
appropriate the rituals and forms of law. The boundaries between these
systems are fuzzy, underscoring the pluralism of law in practice. Formal
law slides readily into everyday life.
A second encounter with legal pluralism emerged from my research on
colonialism and law in nineteenth-century Hawaii.4 Colonialism and law
was a major subject of anthropological research in the first part of the
twentieth century, particularly in British Africa. Anthropologists exam-
ined tribal courts, moots, village mediation, vengeance, and feuds, as well
as modes of peacemaking, all in small-scale communities. They studied
processes of managing conflict and maintaining order, from feuds to
witchcraft to chiefs courts. The goal was to understand the nature of local
legal practices. But as anthropologists expanded their framework from
the village to the larger social field during the twentieth century, they re-
alized that the phenomenon they were examining, sometimes called cus-
tomary law, was in fact a product of colonialism.5 Researchers studying
colonial Africa, for example, recognized that customary law was often con-
stituted by British district officials asking the new African leaders conver-
sant with British practices and ideals to tell them what the law was, ra-
ther than asking more traditional leaders.6 Yet it was also clear that cus-
tomary law was part of a system of legal pluralism. British colonialism in
particular emphasized the creation of a dual legal system,7 accepting cus-
tomary law as long as it was not defined as repugnant to good conscience.
3 See Sally Engle Merry, Transnational Human Rights and Local Activism: Mapping the
Middle (2006) 108:1 American Anthropologist 38 at 4648 [Merry 2006].
4 See Sally Engle Merry, Colonizing Hawaii: The Cultural Power of Law (Princeton:
Princeton University Press, 2000) [Merry 2000].
5 See Martin Chanock, Making Customary Law: Men, Women, and Courts in Colonial
Northern Rhodesia in Margaret Jean Hay & Marcia Wright, eds, African Women & the
Law: Historical Perspectives (Boston: Boston University Papers on Africa, VII, 1982) 53;
Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi
and Zambia (Cambridge: Cambridge University Press, 1985).
6 See Sally Falk Moore, Social Facts and Fabrications: Customary Law on Kilimanjaro,
18801980 (Cambridge: Cambridge University Press, 1986); Richard Roberts & Kristin
Mann, Law in Colonial Africa in Kristin Mann & Richard Roberts, eds, Law in Colo-
nial Africa (Portsmouth: Heinemann, 1991) 3.
7 See ibid at 21; see also Mahmood Mamdani, Citizen and Subject: Contemporary Africa
and the Legacy of Late Colonialism (Princeton: Princeton University Press, 1996).
LEGAL PLURALISM IN PRACTICE
5
Officials identified customary law by asking local experts to determine
what the law was, thus reframing flexible and situationally defined oral
codes into fixed, written rules. This move to establish a customary law
went hand in hand with creating dual legal systems for colonists and the
colonized. This has been described as the imposition of law,8 but it is clear
that it was not a simple imposition of one legal system over another, but
rather the creation of a complex, layered duality with mutually constitu-
tive practices.
This duality clearly enshrined racial and cultural difference and ine-
quality, yet it did have the effect of preserving some features of local legal
systems. In contrast, when the United States colonized Hawaii during the
nineteenth century, it established a unitary legal system.9 The American
legal advisors to the Hawaiian king and government, largely New
Englanders dedicated to abolishing slavery, did not want to create one le-
gal system for Hawaiians and one for whites. As a result, they created a
unitary legal system, at first based on Hawaiian law and practices and
written in Hawaiian, but gradually transformed into an American one
written in English and translated into Hawaiian. To achieve this trans-
formation, it was necessary to create new words and procedures. For ex-
ample, the missionary-influenced Americans struggled to change Hawai-
ian practices of sexuality and marriage, which were based on the idea of a
set of brothers and sisters raising children together rather than on the
nuclear family model, into the model of the sexually exclusive monoga-
mous family idealized in New England. To make this change happen, the
missionaries invented a term for fornication and adulterymoe ko-
lohewhich literally means mischievously sleeping.10 They encouraged
Hawaiians to catch their neighbors engaging in illegal sex by peering
through the thatched walls of houses. The emerging system of courts,
based on American models, then prosecuted the offense. Perhaps a dual
legal system would have been less disruptive to local social practices.
A third encounter with legal pluralism and its theoretical contribution
to the analysis of legal systems came with my study of human rights.11
The international human rights legal regime represents another layer of
legal pluralism. It is a multilateral treaty system consisting of nine hu-
man rights conventions that are monitored by a system of expert commit-
tees that periodically assess the extent to which ratifying countries com-
8 See Sandra B Burman & Barbara E Harrell-Bond, eds, The Imposition of Law (New
York: Academic Press, 1979).
9 See Merry 2000, supra note 4 at 11314.
10 Ibid at 248.
11 See Sally Engle Merry, Human Rights and Gender Violence: Translating International
Law into Local Justice (Chicago: University of Chicago Press, 2006).
6 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
ply with their terms. It is layered above state law and seeks to regulate it,
but it also exerts influence at the local level. The human rights regime of-
fers social movements a powerful ideology of equality and justice. Social
movements that encounter resistance from their own states may raise
human rights claims in international fora instead. For example, LGBT
groups that have difficulty getting recognition in their own countries may
make human rights claims, as one group I studied in India did.12 Thus,
although as a system of law the human rights framework is inconsistent
and unevenly enforced, it is also ideologically powerful. It promotes tech-
niques for making human rights violations known, such as modes of doc-
umenting violations and reporting them, that affect the ability of publics
to see injustices and violations that are otherwise invisible. It provides an
important ideology for social movements. It develops and changes all the
time through globallocal interactions.
As a way of understanding how human rights law regulates social life
in local communities, I focused on the construction of gender violence as a
human rights violation and the effect of this construction on local organi-
zations and social movements in several Asia/Pacific countries. The idea
that women had the right to be free of violence emerged as an important
human right in the early 1990s.13 At the same time, debates over the uni-
versalism of human rights mushroomed. Whether or not human rights
constituted a universal set of standards was always a fundamental issue,
but it became particularly controversial in the 1990s. With the end of the
Cold War, pressure on certain states to comply with human rights norms
ratcheted up, generating new resistance to the regime, especially by some
Asian states. China and Singapore in particular claimed that human
rights and Asian values were deeply incompatible.14
Intrigued by this debate, in the early 2000s I studied how this new
idea of a womans right to be free from violence was adopted or rejected by
local communities. Were the relativists right that this universal system
was irrelevant in many cultural contexts? Or was it universally applica-
ble? I did research in Fiji, China, India, and Hong Kong. In all these coun-
tries, I found the widespread practice of appropriating womens human
rights concepts by translating them into terms that made sense in local
12 See Peggy Levitt & Sally Engle Merry, Making Womens Human Rights in the Ver-
nacular: Navigating the Culture/Rights Divide in Dorothy L Hodgson, ed, Gender and
Culture at the Limit of Rights (Philadelphia: University of Pennsylvania Press, 2011)
81.
13 See Charlotte Bunch, Womens Rights as Human Rights: Toward a Re-Vision of Hu-
man Rights (1990) 12 Hum Rts Q 486 at 486.
14 See Joanne R Bauer & Daniel A Bell, eds, The East Asian Challenge for Human Rights
(Cambridge: Cambridge University Press, 1999).
LEGAL PLURALISM IN PRACTICE
7
contexts. There was little explicit reference to UN declarations, to the
Womens Convention or CEDAW,15 or to the statements of special rappor-
teurs or the resolutions of the (as it was then called) Human Rights
Commission.16 Instead, human rights norms were creatively translated
into ideas that made sense to local activists and communities. For exam-
ple, in my research on local womens organizations in Gujarat, India, I
found that a womans right to be free from violence was interpreted to
mean that women could stand up for themselves, and that hitting was not
justified even if a wife failed to provide a good evening meal.17 Additional-
ly, the NGO encouraged poor women who came for help with violence and
abuse in marriage to stand up for themselves and to renegotiate their re-
lationships with their husbands. Since separation and divorce typically
leave a woman living alone, vulnerable, and poor, such a strategy for pro-
tecting her from violence may be her only option.
In my research on the localization of womens human rights in several
countriesChina, India, Peru, Fiji, and the United StatesI did not find
an opposition between universalistic standards and local ideas, but in-
stead discovered activists translating global concepts into terms that
made sense locally.18 In all the countries I studied, human rights law and
the global movement against gender violence were important, but their
influence was mediated by translators of various kinds. I called this pro-
cess of translation vernacularization. Human rights law offered a trans-
cendent source of international authority, legitimated by its creation
through international debates and decisions, which was then vernacular-
ized by local activists. Even if the sanctioning power of international hu-
man rights law is limited, its regimes are powerful resources for local so-
cial movements. Thus, the legal pluralism frame provides a way to under-
stand the effects of global human rights law on local social justice practic-
es.
15 Convention on the Elimination of All Forms of Discrimination Against Women, 18 De-
cember 1979, 1249 UNTS 13, Can TS 1982 No 31.
16 See World Conference on Women, Beijing Declaration and Platform for Action: Plat-
form 3 The IV World Conference on Women, 1995, 16th Plen Mtg; Radhika Coomar-
aswamy, Report of the Special Rapporteur on Violence Against Women, Its Causes and
Consequences, UNHRC, 52d Sess, E/CN.4/1996/53, (1996); Radhika Coomaraswamy,
Report of the Special Rapporteur on Violence Against Women, Its Causes and Conse-
quences, UNHCR, 58th Sess E/CN.4/2002/83, (2002).
17 See Peggy Levitt & Sally Merry, Vernacularization on the Ground: Local Uses of Glob-
al Womens Rights in Peru, China, India and the United States (2009) 9:4 Global Net-
works 441 at 446.
18 See e.g. ibid; Merry 2006, supra note 3; Sally Engle Merry et al, Law from Below:
Womens Human Rights and Social Movements in New York City (2010) 44:1 Law &
Socy Rev 101.
8 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Such global perspectives are, of course, not always welcomed. Even in
the United States, a bastion of human rights activism, conservative
groups resist the human rights systemeven as more progressive groups
seek to use it locally within social movements. For example, two progres-
sive NGOs in New York City that I studied, Voices of Women and the
Human Rights Project of the Urban Justice Center, vernacularized hu-
man rights as a way of challenging violence against women.19 For these
groups, the language of human rights offered a way to build alliances
among anti-poverty, educational, and housing rights organizations. It also
offered a way to make their issues visible. One group, for example, did a
documentation study of how New York City family courts treat battered
women, citing a range of human rights violations.20
What might we take away from this brief overview of the analytical
benefits of a legal pluralist perspective? Clearly it suggests wariness
about seeing legal systems as homogeneous and neglecting the im-
portance of local, community, or religious-based systems of law and con-
flict management. It also raises questions about rule of law projects that
ignore local law. There are clearly difficult issues presented by legal plu-
ralism, of course, such as local legal systems that violate principles of the
national and international system by allowing racial discrimination or by
tolerating domestic violence. But the solution is not to ignore local sys-
tems. Instead, the legal pluralism framework leads scholars to look for di-
alogue and intersection. It asserts the complexity of law, including its ide-
ology, rules, practices, and knowledge techniques, as well as, perhaps
most importantly, the interconnections among legal systems. And this
framework opens up spaces for local activism. Armed with this powerful
concept, I am sure you will be better lawyers and scholars as you seek to
promote social justice at home and around the world.
19 Ibid.
20 See Voices of Women Organizing Project, Justice Denied: How Family Courts in NYC
Endanger Battered Women and Children, online: The Leadership Council
