IV. MERRY ON LAW AND LEGAL CONSCIOUSNESS

Leading legal anthropologist Sally Engle Merry was one of the first scholars to explore the concept of legal consciousness.³⁵ Her path-breaking article draws on her study of conflict, litigation, and mediation in a New England district court to illustrate the role of legal consciousness in bridging the gap between law-inaction and law-on-the books.³⁶

Professor Merry directs our attention to everyday actions that are shaped by the law and which, in turn, shape the law itself, and in particular to “ideas about what law is and what it can and cannot do.”³⁷ According to Merry, law is not an independent, external factor shaping society. Rather, she says,

. . . law and society are mutually defining and inseparable. One fundamental point is that law is intimately involved in the constitution of social relations and the law itself is constituted through social relations. Daily talk about the law by ordinary people contributes to defining what law is and what it is not. Ordinary people share understandings of law and the way it affects their lives and defines their relationships. These understandings, which can be called legal consciousness, include people’s expectations of the law, their sense of legal entitlement, and their sense of rights.³⁸

Her work has helped to open a new window on our understanding of rights and the dynamic process by which consciousness of rights takes shape. Perceptions of rights, in turn, help to explain why and how the law becomes active or fails to become active in particular individuals’ lives. Drawing on her research on the
legal consciousness of ordinary citizens, she observes,

[t]heir ideas were derived from their experiences in court and with lawyers as well as from the media. These ideas, however, were not necessarily the same as the doctrines of the legal system itself. For example, people who sought judicial relief in the law courts for neighborhood problems in the New England towns I studied in the 1980s based their actions on conceptions they had of rights to property and protection — conceptions often at variance with the law itself. Many people felt that they could control who stepped onto their property, and many felt entitled to shoot anyone who did. Thus, they held an expanded notion of property rights that were less circumscribed than those actually enforced by the courts.³⁹

Professor Merry’s research on mediation of cases in the lowest tier of a court system reveals the power of some actors to shape perceptions and the meaning of law and its relevance to these problems. Their power is the power to give a name to a relationship, a dispute, a conflict, even a personal identity, and, thus, to suggest the relevance — or irrelevance — of law.

Reframing is an aspect of the power of naming—the power to assert what a problem is and what should be done about it. In these settings, naming is done by people who are perceived to hold particular authority by virtue of their institutional location and their professional expertise, often revealed in their language. Consequently, plaintiffs are persuaded to acquiesce to these names, to abandon their efforts to get help from the court for problems defined in legal terms and to accept the court’s redefinition of the problem as a social one deserving ongoing supervision of their social relationships.⁴⁰

Neighbors entered the court with a sense of entitlement and the reasonableness of their own actions. But, instead of receiving protection for their entitlements, the parties received “lectures and advice about how to organize their lives, encouragement to come back for mediation, and promises that something will be done to the defendant if the problem recurs.”⁴¹ Thus, by exercising their power to re-frame an event or a social relationship in a non-legal, moral, and therapeutic discourse,⁴² the court officials denied the very forms of protection and help “promised by the legal system itself” and offered non-legal solutions in their place.⁴³

In other settings that I have studied, for example in my research on the effects of new disability rights and my examination of the implementation of welfare reform law, discourses were selected less self-consciously and less instrumentally than the discourse used by court officials studied by Professor Merry. The subjects in my research described conflict and conflict resolution using discourses influenced by family, peers, education, media, and an array of other factors which shape cognition with no less powerful an effect.⁴⁴ For example, in a study of the legal consciousness of persons with disabilities, most of the people we spoke to with disabilities could describe the provisions of the Americans with Disabilities Act (“ADA”) in general terms, yet none of them had ever formally invoked the Act to remedy discrimination or to gain access to employment.⁴⁵ Further, our interviewees sometimes chose a discourse to describe exclusion from employment or acts of discrimination in non-legal, yet — to them — compelling terms.⁴⁶ For instance, some described their exclusion using a discourse of religion that emphasized forgiveness without mentioning the law. Others employed a discourse of the market to explain the efficiency, and thus the appropriateness, of a business’s failure to employ them or to offer accommodations, even though that might be contrary to the law. Some of our interviewees, who strongly opposed affirmative action in a racial context, suggested (correctly or incorrectly) that the ADA was similar, and for this reason they would never invoke the ADA’s provisions. For each individual, consciousness of the law was shaped by a variety of factors, including family, peers, and prior experiences in school or at work, that led to widely varied perceptions of rights never anticipated by the drafters of the law.⁴⁷

V. GLOBALIZATION OF LAW
Professor Merry’s illuminating description of the interactive process that shapes perceptions of law can help us understand the cross-cultural migration of rights and legality. Legal consciousness provides a window into the process by which formal legal change takes shape, but something more is needed. Consciousness of rights in developing societies is both a terrain of conflict and the point of intersection between global and local flows of information and advocacy about rights. Research on the impact of global and local advocacy for rights requires examination of the transnational flows of ideas about rights and their translation within each local context.

As the global movement to adopt formal rights, rules of law, and democracy spreads, the meaning of law is framed in discourses from many sources — Western jurisprudence, international human rights agencies, the World Bank and its private counterparts, and dominant political actors, to name some of the most important ones. But the meaning of law is also shaped by the actions and discourses of politicians, media outlets, activists, legal professionals, community leaders, as well as through everyday interactions within networks of friends and family and on the street, namely the sources in closest contact with the citizens in Chinese villages holding elections for the first time,⁴⁸ Thai administrative districts whose governance has been reformed under the new constitution,⁴⁹ or women in villages now protected from discrimination by CEDAW. The meaning of rights or democracy may be translated and transplanted not once, but many times, ending with the local contexts in which they are intended to become part of the consciousness of ordinary people.

Footnotes

35. Merry, supra note 5.
36. See id.
37. See id. at 214.
38. Id. at 209–10.
39. Id. at 214.
40. Id. at 218. In the law and society research canon, disputes must first be named (i.e. perceived to exist), then responsibility assigned to someone, an entity, to oneself, or to chance (“blaming”), and lastly, a remedy sought through whatever formal or informal means seem to be available (“claiming”). See generally William L.F. Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . ., 15 LAW & SOC’Y REV. 631 (1980). Conflicts exist everywhere in society. Yet the number that result in naming — awareness of a grievance — is miniscule, and the proportion that result in blaming or claiming, much smaller still. Perceptions and meanings are critical to the interpretation of social interaction that might be named, blamed, or claimed.
41. Merry, supra note 5, at 225.
42. A discourse is more than an explicit invocation of non-legal authority; it conveys a taken-for-granted common sense, a perspective that is complete in itself, by establishing what there is to say about what we perceive. Cf. Michel Foucault, Politics and the Study of Discourse, in THE FOUCAULT EFFECT: STUDIES IN GOVERNMENTALITY 53, 58–59 (Graham Burchell, Colin Gordon & Peter Miller eds., 1991). A discourse guides how we express what we perceive and, therefore, also influences what we know.
43. Merry, supra note 5, at 225.
44. See generally DAVID M. ENGEL & FRANK W. MUNGER, RIGHTS OF INCLUSION: LAW AND IDENTITY IN
THE LIFE STORIES OF AMERICANS WITH DISABILITIES (2003); Frank Munger, Dependency by Law:
Welfare and Identity in the Lives of Poor Women, in LIVES IN THE LAW 83 (Austin Sarat, Lawrence
Douglas & Martha Umphrey eds., 2002).
45. ENGEL & MUNGER, supra note 44, at 1–19.
46. See id. at 142–67.
47. Id.
48. See Jamie P. Horsley, Village Elections: Training Ground for Democratisation, CHINA BUS. REV.,
Mar.–Apr. 200l, http://www.chinabusinessreview.com/public/0103/horsley.html.
49. CONST. OF THE KINGDOM OF THAIL.  285.