Sally Engle Merry on Human Rights, Local Justice & Indicators

[00:00:06]the keynote speaker for this annual lecture on law and social transformation is sally angel mary silver professor of anthropology at new york university to briefly introduce her i'd like to start from a personal note my first encounter with sally mary's work was solicited by my late supervisor who once asked me have you read this book the book was getting justice and getting even legal consciousness among working-class americans as weird as it may sound this kind of questions are less and less common in academic circles today the dominant question is have you seen this call and this something has also to do with probably some kinds of indicators but anyway i then read the book a book that via ethnographic study of local law and the people who use it develops an articulated reflection of the legal consciousness of working class americans and their experiences with code and mediation after reading this book i went back to what i think is mary's first monograph urban danger life in a neighborhood of strangers published in 1981 as i was conducting field work in kabul i was particularly interested in developing comparative approaches for the analysis of the different perceptions of danger expressed by different actors and of the complex stratification that categories such as safe danger and stranger have in different contexts since then major issues sally mary has been able to address in her work include the cultural power of law the law as a cornerstone of the civilizing process of 19th century colonialism human rights and processes of vernacularization gender violence forms of governance and audit culture she is the author and or editor of a number of widely read books including the possibility of popular justice a case study of american community mediation colonizing hawaii the cultural power of law human rights and gender violence translating international law into local justice and more recently the quiet power of indicators measuring governance corruption and the rule of law and the seductions of quantification measuring human rights gender violence and sex trafficking the title of her keynote today which condenses reflections developed in our two latest books is from human rights to local justice and the quiet power of indicators the keynote will be followed by comments provided by rich pool of panelists malcolm langford professor of public law at the university of oslo lisa rachner professor of political science at the university of bergen and head of the prize committee of the wrathful foundation maya united professor of social media anthropology at the university of sussex nicolas orrago lecturer at the university of nairobi unfortunately lydia mungambe that you may have seen on the program was not able to join us because of some practical issues with her visa we will also have time for to open the discussion at the end of the of the keynote so please now join me in welcoming sally and goldman well thank you for that very generous introduction and i am very honored to be here in addressing this conference this seems to me a really impressive interdisciplinary socially progressive uh project and i'm very impressed with the kinds of topics you're dealing with and the efforts you're making to cross various disciplinary national geographic lines it's it's really very inspiring and those of you who are in the middle of it may take it for granted but i have to say not only is it a relief to be out of the united states but it's also inspiring to see such commitment to social transformation social change agenda i'm going to talk today as you just heard about actually my two latest books but i'm also going to begin with a kind of upbeat vision of human rights and then move to the question of quantification and actually we'll be talking about the sdgs not everybody knows what that is so i'm glad to hear that you all do i want to begin by asking the question that we hear about so often are human rights in crisis is it really the end times of human rights as some scholars argue is it that they no longer have any effectiveness and we need to abandon this approach i don't think so i think that these are these critics tend to refer to the formal institutions of human rights to some extent the legal technicalities of the process which they say are detached they're not effective they're not really making the world a human rights compliance space meanwhile many governments as you know are closing down human rights organizations and it's getting more and more difficult to do human rights work and yet i would argue that the impact of human rights is still far broader than we can see looking at these institutions and what governments are doing there is a sense of um also that the global south feels colonized by human rights and yet at the same time there is a local community-based mobilization of human rights ideas so i think that this is the critique of the formal system is not the end of the whole story and i'm going to give you three reasons why i think we need to think about this differently i'm not using this am i i can put it away okay first one of the arguments these critics make is that human rights aren't effective now if you think about that this is really a strange argument to make about law because if we said any law that's not effective doesn't matter well most laws aren't effective actually all laws aren't effective i mean people violate laws all the time we don't decide well let's abandon these laws because they're being violated we say well we need to encourage enforcement and compliance with laws laws set standards they create norms they create cultural spaces and indeed most compliance with most law is a matter of choice not the imposition of sanctions so the wider effects of human rights are likely to be in the social and cultural sense not in the sense of enforcing rules so i think we need to be a little bit more careful about saying because they're not effective they're useless the second point i want to make is that perhaps the most important contribution of human rights is not actually enforcing changes in behavior but providing information about what's going on in the world and this is one of the roles that human rights activists play constantly they just they find examples of abuses that are not generally known and the report on them the case of the rohingya just as an example became visible because of this kind of work or the election violence in kenya or a recent example philip alston the special rapporteur on extreme poverty did a study of poverty in the united states which got a fair amount of press in a country that doesn't seem to want to acknowledge that there is in fact still poverty so it's a way of giving voice their human rights ngos do the same thing making things visible that otherwise would be forgotten in on behalf of vulnerable communities so this of course raises core questions about fact-finding techniques within the human rights field and it's interesting that there is now beginning to be work thinking about how this fact-finding happens and a happy collaboration actually between social scientists and human rights activists and lawyers a book was recently published by the danish institute of human rights on human rights research methods and there was another book on fact-finding that the nyu law school put out and i think this is a really interesting potential site of collaboration between social scientists who have developed methodologies of learning about things and human rights lawyers and activists who want to make things visible so this is really an important direction for us to be watching the third reason i don't think human rights are over is that they are being translated in all kinds of ways into local social movements they are being turned into terms that make sense in local communities they are being incorporated into constitutions as social rights they are spreading through society as kind of a normative system not the only normative system by any means there are alternative normative systems they're religious systems there's marks of socialist systems but it is one normative system that becomes as i've said in a horrible term vernacularized re-framed in local terms this is a really powerful process i've spent a fair amount of time studying ngos in various countries looking at how they take these global human rights ideas and make them into something that's relevant to people's everyday lives so for example i studied an ngo in india that was working on women's rights to be free of violence by encouraging women to stand up for themselves and in their own terms they didn't talk about seed all or any document they just talked about changing how you view the world with a reference to kind of a transcendent international world where other people feel the same way and other examples of this kind of localization was one of my favorites was a effort to deal with the problem in india of sex selection which means the disproportionate killing of female infants over or fetuses rather than males because of a sun preference and so they put anti-sex selection messages on kites which they then distributed to people during the kite flying festival in the city and since the goal of the flying the kites is you put broken glass on the string and you cut other people's kites and they fall down in people's backyards suddenly you'd have these kites with these messages in people's backyards again it's using sort of existing cultural apparatus to convey a new message i always studied a group of survivors of violence in new york city who were working on the difficult conditions in the new york city family courts for formerly battered women and they did a human rights report they interviewed maybe 70 people as a human rights system and wrote a human rights report about various kinds of human rights that the family courts are violating so again this is a form that gets appropriated in lots of different ways and it's a language into which you can take your local problem and make it more transparent to wider audiences it's a very capacious set of ideas in the human rights field so there's a lot of opportunity to say you know i need that system of water in my community and this is a violation of my right to health so you can translate this local problem into a terms that other people can understand and that's very important back to the visibility issue this doesn't mean that there aren't threats to the human rights system that the human rights council is effective which it seems not to be that the upr system and process and the treaty body hearings actually generate meaningful change in behavior of countries which they seem not to um but that there is an adoption of these ideas at the grassroots level and a lot of work by human rights ngos and as i say this is not the only social justice ideology but i think it remains an important one it does suffer from the kind of north-south colonialist framework but it has also been developed by the global south as well as the global north and their efforts to kind of develop new ways of thinking about human rights that are more responsive to south realities so um so there's a reason to be optimistic about the enduring appeal of human rights however i'm now going to turn to the other side one of the threats to human rights in addition to the political opposition of which i'm sure you're all aware is the new turn to quantification the idea that we need to find out and understand the world through counting and there are efforts to use indicators this is my work on indicators quantitative methods for all kinds of areas of global governance and social justice and and i have through two sides to this on the one hand gathering data on human rights compliance is a really excellent way to show areas where there's not human rights where there's gaps where people haven't countries haven't delivered on their promises and so it can be really useful certainly it's a way to expose discrimination on the other hand there are significant drawbacks in the very process of quantification as a way of representing the world and this is the point that i'm going to make in the rest of this talk and i'll say it again in case you were napping so if you are measuring the if you're using quantification as measuring as trying to find out what the world is like you inevitably get a skewed version of the world and there are many things that you miss by using this technology of knowledge production and i want to talk a little bit about how quantification shapes the way you see the world and what some of the problems are let me begin by asking you the simple question how do we measure what how do we go about measuring something what do we need to do in order to measure something like say the rule of law or slavery or trafficking these are complicated phenomena if we look at the history of measurement you can see that things that we didn't used to know how to measure we've learned how to do like height and weight and temperature and so on so gradually we learn how to measure things but some things are much more straightforward than others when we start measuring these complicated social phenomenon we have to think about how can we make things comparable and i'll give you an example of measuring violence against women because i studied a u.n project to try to come up with a set of indicators for measuring violence against women around the world now that seems like a good thing right who would not want to do that but then what exactly do we mean by violence against women is it rape is it domestic violence is it trafficking is it sexual slavery is it police violence and custody is it polygamy as some people have argued there's a wide range of things that have been put under this umbrella and so what are you supposed to do if you make it way choose to measure this and what the un did was to focus on a very narrow version of this so they looked primarily at acts of violence with a perpetrator and a victim so you kind of lose the whole structural question about the police about the state about you know the environment that people live in in order to make things commensurate and this is the problem of quantification you have to find some core similar principle that everything has in order to count it if we're talking about height right everybody has a height if we want to talk about sort of body shapes it's much more difficult because some people have you know rounder less round more and more less muscly we use the bmi the body mass index but that's also flawed so as soon as you get any kind of more complex thing you're studying the quantification only looks at one piece of it and ignores the rest so to go back to my violence against women example i spent a fair amount of time studying women's support groups in in a town in hawaii as they talked about their experiences of violence and when they talked about it they didn't actually even mention the act of violence they would talk about the relationship the trajectory how long it happened what their expectations of this relationship were and you realize that the whole world of understanding an event of domestic violence requires knowing a lot of things like ideas about marriage ideas about gender ideologies the opportunities for exit that women have the amount of resources they have a whole and and how long this has been going on a whole lot of issues that are of course not found at all in these indicators which asked essentially about the frequency severity uh sexual or physical nature of violence intimate partner or not that was sort of the range of things that these indicators covered actually a statistician told me it was much easier to measure female genital cutting because you either are you aren't and this domestic violence thing was very violence against women was very hard to measure i mean i can't help wondering how are you finding out whether this woman has had been cut or not but but never mind um but there's an am complexity of the phenomenon that you're trying to measure and in order to count you have to make it simple you have to homogenize you have to ignore the context and the history and a lot of other things that actually might be really interesting to find out about so for example at a recent meeting of the united nations statistical commission which is a inter-governmental body of the u.n which handles statistics believe it or not there are not a lot of ngos that show up at this meeting but they're busy trying to help national statistical offices count economic social environmental problems they announced that they have now interviewed four million women and we conclude and have concluded that nineteen percent of these women experience violence now what do we know now what actually how useful is that figure do we know where these women are apparently more of them are in the global north and the global south because of who gets counted and who has the resources to count but the questions that you might want to answer such as what is the relationship of these people what's their social condition what what are the gender ideologies what kinds of marriage are disappeared from this particular statistic so while it has some value it needs to be joined with other more complicated forms of analysis so why does this problem of quantification matter at all and my argument is that it has two effects which are very important one is what i call a governance effect it has a major impact an increasing impact on government policy decision making and actually efforts to produce compliance so i'm going to talk about the sustainable development goals in a minute which are a classic example of this so the idea is we want to hold actors accountable and we'll do it through quantification processes and sometimes these numbers actually shape decisions and sometimes they are used as part of a decision-making process so i'm interested in how numbers become part of governance but the other thing they do which i think is really also important is they have a knowledge effect they shape the way we understand and see the world i don't know if any of you have ever tried to figure out what the best university in the world is but happily there are indicators and amazingly enough they turn out to be cambridge oxford and harvard i mean you know what what have we learned now except that these are the schools with the best reputations with the widest reputation shall we say they will tell you things about which countries are more and less corrupt and which countries have greater and less development levels but do we really know things about the variation and the complexity it's a kind of knowledge and it's a kind of knowledge which i think is very appealing in a world that's too complicated for us all to know everything about it and that's why i use this phrase seductions it's offers us the opportunity to have answers to things i mean you want to send your child to a university someplace in the world how do you choose how do you know anything about all these universities well the ranking system seductively offers you information now may not be very good information because all these universities are ranked on the same ladder right maybe you want one that does this thing and not that thing but you can't find that out from these ranking systems all you can find is actually some of them use citation rates for faculty publications which is a fairly appalling way of measuring what's a good university or not um so so we need to think about how these indicators systems affect the way we see the world and if you look at things like governance indicators and corruption indicators you find that the same countries are usually at the bottom and others are at the top and i'm afraid you're sitting in the place which always shows up at the top the nordic countries i don't know if they produce all these indicators but you know governance rule of law it's always at the top and of course the former colonial countries are at the bottom and then you think who's making these indicators right you could measure something else like sort of community participation collective commitment to a larger family and you have a whole different set of scales so i think it's worth thinking about how these images and if any of you are interested in looking at these online lots of color-coded maps with the good countries green and the bad countries red that shape the way we see the world so we turn c to turn to quantification in a variety of settings i didn't notice what time i started oh dear i'm going to talk about two of them first is an effort by the office of the high commissioner of human rights the ohchr to develop a set of indicators for human rights and this is a project that took a long time it was a collaboration between some development economists and some human rights lawyers to take 12 human rights and come up with ways of measuring compliance with those 12 human rights the idea was to give this to the treaty bodies and then the treaty bodies would be able to hold states accountable it's not clear that the treaty bodies bought into this or even very excited about it but they produced a single table for each human right and the table across the top had what were called attributes so various domains of this human right and then on the side it had three categories structural indicators process indicators and outcome indicators so for example for the right to health the one of the act that was divided into five attributes um one of which was sexual and reproductive health and another was child mortality and health care so it's an effort to disentangle the pieces of the right to health but again only five pieces you could think of lots more and then the structure process and outcome indicators the structure referred to things like laws passed uh policies towards ngos so kind of national level structures of the state the process indicators were government policies such as is there training in the right to health something like that now this is much easier to count than the outcome indicators the outcome indicators are things like the ratio of maternal mortality or access to obstetric care or you know health of children very often these outcome indicators are really hard there's not much data it's hard to get all this information so the idea is you can actually use the process indicators instead to get you a sense of whether or not the outcome is happening or not so they did this with the 12 human rights and but in the right to health there were 11 let's see let me get the right okay there were 11 structural indicators 32 process indicators and 10 outcome indicators so a total of 53 indicators for one right you begin to see that there's a problem here either you have so many indicators that it's a little overwhelming or you have relatively few in which case you've missed lots of the dimensions of the phenomenon you want to study so this project opted for more indicators and a more robust version of the phenomenon but it still kind of simplifies what might be in the right to health moreover it has an underlying social theory which is that it focuses on state action and so the idea is if the state passed this passes these laws institutes these programs and policies then the outcomes will follow and this implies that you have a state that's got the capacity and the action to carry this forward but this isn't true for all states and it actually is premised on a kind of industrial modern society resource-rich country and the way it might go about doing this work but it doesn't really deal with the complexity of maybe another country wants to follow another path maybe it doesn't have the resources maybe the other ways of getting there so what's interesting about this example is it shows how indicator systems and quantification in general has embedded but unarticulated social theories in this case about social change about how development happens you need to do this this and this in order to get that outcome but that may not be true everywhere and it means that you've taken the agency away from the country that might want to pursue a different policy um so let's see i had some examples outcome indicators proportion of live births with low birth weight and maternal mortality ratio oh this is one of my favorite indicators the proportion of reported cases of genital mutilation rape and other violence restricting women sexual and reproductive freedom responded to effectively by the government so that's an outcome indicator dow do you see any problems with that first of all what does effective mean i mean so somebody there's a important interpretive judgment secondly this is a proportion so you want to know how many of the reported cases of i guess is reported gentle mutilation rape and other violence are there reports of all these things do we have adequate records so that we can then look at which ones are responded to effectively and which ones aren't so this is another problem of the indicator system this is a really totally unmeasurable indicator i mean it looks good right when you first read it but think about converting it into an actual measurement system and you can see it doesn't really make any sense at all so we have here a situation where the templates developed by the office of the high commission of human rights oh i already said that i assume a state that can actually make this happen and they could carry out these measurements which are often very difficult so finally the problem is that this approach tends to ignore the larger systemic issues it may not pay any attention to society situations which inequalities based on class gender religion or region affect health that's not in the indicator system it doesn't consider how preference for sons over daughters could diminish the feeding and care of girl children or how marginal or indigenous groups might be excluded from government benefits and disproportionately poor these kinds of structural conditions don't appear in these indicators or generally in indicators in general because they're kind of larger structures and you can't look at individual behavior to see them they are ignored because they focus on measurable inputs and outputs so the demands of measurement and the availability of data restricts the theory of social change which are can be embedded in these human rights indicators and any human rights indicators so instead of addressing forms of inequality produced by racism or um differences between urban and rural residents or patriarchal kinship systems dependence on international investment or social norms concerning gender things that you all might recognize are important the indicators of the right to health and the other 11 human rights indicators articulate a model of social change in which an increase in state services will solve the problem and changes in state policies so they're not really looking at broader social change now i want to turn from this example now there has not been a great deal uptake of these indicators but it's an interesting conceptual project to the sustainable development goals for which there is now an enormous amount of effort and attention and resources being expended the sustainable development goals follow the millennium development goals but they're quite different the millennium development goals charted development goals between 2000 and 2015 they were basically organized by donor countries by u.n insiders and the focus was on eliminating poverty in poor countries the sustainable development goals had a very different process they spent two and a half years meeting with civil society global south countries had a lot more input there was sort of an open working group that spent a lot of time debating what kinds of goals to include and some things got included that were very controversial like measuring inequality which was not in the millennium development goals and these are supposed to run between 2015 and 2030 and they should govern development efforts globally during that time period they have 17 goals things like reduce inequality within and among countries or promote sustained inclusive and sustainable economic growth full and productive employment and decent work for all so these are right lovely aspirational goals full of some kind of vague terms like decent work and exactly how you measure inequality is as you can imagine quite difficult but they are kind of broad and aspirational these 17 goals are divided we're divided into 169 targets so the targets are also a little bit more specific but still have this kind of broad aspirational quality very much like human rights language does but how do we get indicators so the process of turning these goals and targets mind you there are quite a few now we have 169 targets which are subdivisions of the goals this was given this project was given to the un statistical commission as a technical problem which created a special committee which i'll call the expert group because this name is really kind of murky and their job was to try to find indicators for these goals for these targets and they confronted the very difficult challenge of how you go about measuring these things and they have now developed 232 indicators i we're talking about a lot of indicators now you have to imagine a resource poor government trying to do 232 indicators and they're still being redefined and there's another problem with tears but i'll get to that in a second so just like the ohchr indicators they had to convert broad goals into very specific things that could be counted and again they fail to address structural issues because of the demands of quantification many but there's another problem many of the indicators measuring the newer more ambitious goals remain undefined so the expert committee has divided the indicators into three tiers on the basis of whether or not there's a methodology for measuring it and whether or not there's any data and it turns out so tier one has both methodology and data and those are going to be used by the sdg process tier 2 has either methodology or data but not both yet and tier 3 has neither methodology or data so this is a lovely idea but nobody has a clue how to measure it or any data and it turns out that there are lots of indicators that are not in tier one by december 2017 uh there were 93 tier one indicators 66 tier 2 indicators and 68 tier three indicators and each indicator has been assigned what's called a custodial agency a u.n body like the food and agricultural administration or you and women whose task it is to take this indicator and find a way to measure it which is an enormous project but the commit expert group committee has decided that if a indicator has not gotten an active custodial agency that's done that for its indicator and hasn't really figured out how to measure it it's going to be dropped the 2020 review which considering the number that might not be a problem but it turns out that many of the more aspirational broad indicators that are part of this new sdg mechanism are in tier three and at the last statistical commission meeting in new york which i went to in march a lot of south countries were complaining about losing these tier three indicators and they said look we need to just move ahead and measure them even though we don't really have good data because otherwise they're going to disappear so here you see a way that the broad aspirations are actually being undermined by what's described as a technical process so the um and many right so the the sort of point here is that the demand for quantification and the cost and difficulty of gathering data tame the progressive quality of the sdgs and their ability to measure the more aspirational dimensions of human rights and development if we have to conceive of the work we are doing in terms of what can be measured we dramatically reduce what we can think about i think i'm about out of time right anyway i should watch but i have i have one more dimension of this that i want to talk about which is i've recently begun thinking about the infrastructure of measurement about how exactly you get the resources and the technology and the expertise to go about measuring things and if you think for a minute about some of these measurement problems they require a lot of resources to go about figuring out what you measure what you count you know if you maybe we can use mobile phone technology are we doing door-to-door surveys which are expensive can we use administrative data that's already been collected but it may not actually address the question you want and of course some countries have more money to do this than others so at a recent meeting of the statistical commission a lot of global south countries were complaining that they need help with capacity development to figure out to get the technology to do this measurement and a representative from tanzania said there are 11 african countries that have no data on any one of these indicators so the disparity in data is quite significant there are significant efforts by global north and donor countries to develop the statistical capacity of poorer countries which in some ways is a good thing but it also means you get international people running your own national statistical problem which might not be the most wonderful thing so this sort of infrastructure of measurement is not equally distributed think about the access to computers to electricity to photocopy machines not to mention the resources for sending people out to do interviews just as a dramatic example of this in that same meeting of the statistical commission where there were endless complaints about needing more help and capacity development new zealand said well they had just conducted their first census online and 70 percent of the population responded online to the census and that to me was just this vivid example of the disparity in technology and capacity to measure why does this matter it matters because things are going to get neglected they're not going to get measured and if we use these measures for governance they're all these spaces that we actually have not much data at all and one of the techniques that gets used is say well we don't have information about that but that place is sort of like this place so we'll use this place as a proxy for that place which is clearly problematic populations get neglected things that are hard to measure don't get recognized which isn't a problem if that's only part of your knowledge base but if that's a core part of the knowledge you're using you're getting a very partial knowledge so clearly infrastructure constitutes a significant limit to the ability of indicators to deliver on the sdg's promise to expand what development means one solution to the cost and time expertise in state resources is turning to so-called big data and maybe malcolm will talk about this who knows more about it than i do but there is a a lot of countries are kind of enthusiastic about getting public private relationships partnerships getting companies to help them gather this data there is interestingly an institute for health metrics and evaluation funded by the gates foundation based in university of washington in seattle which is gathering global statistics you all probably know about this in public health and sort of displacing the who which is having much more difficulty getting adequate resources to do measurement so we may have a privatization of data collection raising questions about who owns the data and is the data actually measuring what we want to measure and if we're holding states accountable but the data is in the hands of private companies who've gathered it for other purposes are we getting more of a proxy problem we're not really measuring what we want to measure so this is an issue for the future the un calls it the data revolution but there's some concern that this national statistical offices are getting starved for resources because we're turning to these kinds of big data sources which are cheaper so just to sort of conclude so these inequalities in infrastructure and data collection and analysis mean that rich countries and companies exercise disproportionate control over the data and analysis of poor countries the role of official statistics as the central source of information may be at risk in poor states and and again we begin to lose local control and having more external control so just to kind of summarize it seems to me that measuring development and human rights is clearly an important strategy for promoting these goals but it is also important to pay attention to what is being measured and the limitations of an indicator framework what is being left out i mean the his famous historical example is that that economic activity was measured globally by cash income which ignored all kinds of unpaid informal income much of which was done by women and the household and so now we suddenly noticed oh there's care work going on but that's probably that's is to some extent a product of the whole statistical measurement system quantified data should not be the only source of information particularly considering how it shapes what human rights and development mean and how they are implemented such a heavy reliance on quantification ignores the constraints on accurate knowledge resulting from the infrastructure of measurement those who and as i concluded you put in the quote just to go back to my theme those who create indicators to measure the world end up creating the world that they're [Applause] [Music] [Applause] measuring so is every