Intersections: Gender and Sexuality in Asia and the Pacific
Issue 33, December 2013

Intersections of Gender and Law
in Asia and the Pacific

Margaret Jolly and Hilary Charlesworth

  1. Ideas travel, people travel. There is a particular intensity when both are combined and in this epoch of heightened digital and corporeal globalisation, ideas and people move with velocity. The scholarly ideas of Sally Engle Merry are well known and her many published works on the cultural power of the law in colonialism, on gender violence and human rights, on legal pluralism and on indicator culture inspired several of the authors in this volume for many years prior to her visits to the Australian National University (ANU) from 2011. But her embodied journeys and generous presentations—public lectures, seminars, master classes and workshops for postgraduate students and postdoctoral scholars, and individual meetings with staff and students—catalysed a broader collective engagement with her scholarship from an antipodean perspective and generated a series of dialogues in which we critically considered her concepts and used them in various ways in our own research and writing.[1] The papers collected in this volume of Intersections are selected from those presented at two workshops for early career researchers held at ANU in March 2011 and March 2012. Authors of the present volume met again in March 2013 to review the connecting themes of the volume, to suggest how the introduction and epilogue might best frame the papers and to devise an optimal title. Hence, Grounding Travelling Concepts: Dialogues with Sally Engle Merry about Gender and Justice.
  2. Our title is doubly apposite; first because of the protracted and rather demanding journeys Merry made from New York to be with us; second because Merry's entire corpus from her early publications on the colonisation of Hawai'i to her most recent writings on indicator culture explore what happens when powerful concepts travel and how grounding travelling concepts in local places and specific contexts entails complex processes of translation, intersection and friction in terrains saturated with power.
  3. In this introduction we discuss five concepts that are focal to Merry's work on gender and the law and for the authors of this volume: the cultural power of law in colonial and postcolonial contexts, legal pluralism, vernacularisation, 'mapping the middle,' and indicator culture.

    The cultural power of law in colonialism
  4. Sally Engle Merry's cogent analysis of the 'cultural power of law' in the American colonisation of Hawai'i has been justly praised. In her book, Colonizing Hawai'i: The Cultural Power of Law,[2] and in related writings,[3] she has shown how the law introduced in the colonial period was productive of new 'cultural meanings and identities as an aspect of power.' In the Hawaiian case, earlier indigenous concepts of the relation between people and place constructed by genealogy were eclipsed by 'law which defined political participation and access to land through social categories such as citizenship, race, nationality and locality.'[4] She traces the complex histories of inclusion and exclusion created between whites, Asians and Hawaiians and how the law was used by marginalised groups, both Asians and Hawaiians to make claims based on citizenship, indigeneity or human rights. Although ethnic boundaries in Hawaii were more porous than in other Pacific colonies such as Fiji, the law helped to effect

      the alienation of the indigenous population from its land, resources, language and culture. Defining Hawaiians as equal members of the Anglo-American system of law rather than as a second tier in a dual legal system incorporated them into an Anglo-American world at the price of suppressing many indigenous customs and practices and allowing the massive dispossession of Native Hawaiians from the land.[5]

  5. Merry and her co-authors have productively compared the intriguing differences between the cultural power of law in Hawai'i and Fiji in relation to notions of land and ethnicity.[6] In this issue Siobhan McDonnell extends such comparisons to the independent state of Vanuatu. She shows how crucial the introduced law has been in shaping the relation to land in that archipelago. As in Hawai'i, indigenous notions inextricably connected land and person in intimate ways, as in the very word vanua. Land was far more than a place to reside or a site for resource extraction; it was the ground of being, the place where the living, ancestors and deities cohabited, the corporeal, affective, moral and spiritual basis of individual and collective identity. Although the conjoint Condominium of Britain and France declared in 1906 was a divided and aporetic colonial state, the introduced law alienated land from indigenous people in formidable ways: through surveying practices, delimiting territories, registering land and investing ownership as residing in those who secured legal 'title' over land. In the colonial period land was appropriated by diverse Christian missions, individual settlers, planters and traders and massive companies such as the Compagnie Calédonienne des Nouvelles Hébrides, the Société Française des Nouvelles Hébrides, the Australian-based South Sea Speculation Company and the Australasian New Hebrides Company. McDonnell observes that it was predominantly French interests (including many from New Caledonia) involved in a 'large scale land grab' from the 1880s but opposing British interests were also strongly advanced (including many based in Australia). Both powers defended the lives and the property of their respective nationals by the threat of violence and by actual violence by patrolling gunboats.
  6. As McDonnell argues, land was alienated through the performance of legality through the signing of a piece of paper between buyer and seller, between lessee and lessor. Indeed, following Jacques Derrida she suggests this coup de force was not just a performance but a performative, self-authorising act, its words declaring its own efficacy, founding its own authority. Such transactions, as on other frontiers, likely stretched from acts approximating consensual contracts to forcible conquests. But a pervasive mirage of equal exchange was created despite widespread recognition by expatriates of the uncertainties and contests as to who had local authority to sign. Further, the notion of alienation of land in perpetuity was alien to indigenous people. Claiming land was increasingly authorised not by the performance of genealogies and stories of origin and movement told in situ, in ples, but by words inscribed on a signed document. Although the colonial land laws and in particular the deliberations of the Joint Court which adjudicated on land sales were early satirised by the Sorbonne-trained advocate of indigenous land rights, Edward Jacomb, in his play The Joy Court,[7] the consequences of this introduced law were ultimately deadly serious.
  7. During the colonial period large tracts of the archipelago were effectively removed from the control of indigenous people through the conjoint power of 'pacification' and the introduced law. On this land first cotton and then coconut for copra were planted, cattle were bred, indigenous and later Tonkinese labourers indentured, trade stores opened and households of white mastas (and more rarely misis) established. The anti-colonial and nationalist movements which eventually secured the independence of Vanuatu in 1980 were in large part fuelled by outrage at the excesses of foreign intrusion in this colonial 'land grab.' Ostensibly at independence, according to the provisions of the Constitution at Articles 73 and 75, only indigenous citizens were seen to have perpetual ownership of land. But, as Greg Rawlings persuasively argued, the expansive hope of those radical clauses was swiftly deflated by legislation such as the Land Leases Act which allowed for wholesale leasing (usually for seventy-five years) and the requirement that lessors compensate lessees for improvements (including hotels, resorts and expatriate mansions) if they reclaimed land (rarely possible for cash-poor ni-Vanuatu).[8]
  8. McDonnell perceives foundational contradictions around land law in contemporary Vanuatu with non-state 'customary ownership' rhetorically recognised but routinely eclipsed by state-authorised leases in the absence of robust legal pluralism. Moreover the constitutional provisions confusingly talk about landowner rights as communal (Article 73) and individual (Article 79), while the latter article specifies an individual who is gendered male. McDonnell suggests the first land grab of the colonial period laid the foundations for the second land grab, now ongoing in the postcolonial state. Since independence nearly 14,000 leases have been registered, covering 9.5 per cent of the archipelago and 56.5 per cent of coastal Efate. The position of Minister for Lands has regularly been a broker rewarded for dealings between the state and investors. With his signature alone, land held through customary tenure can be leased to speculators who then subdivide and sell such land to expatriates and foreign investors. Other signatories who regularly benefit from such leases are those powerful men, jifs or men of high rank, who have assumed the mantle of 'customary landowner.' As with the cognate ideology in Papua New Guinea, analysed by Colin Filer this notion signals both more individualist and masculinist relations to land.[9] Rather than land being seen as held in collective custodianship, individual men are presuming to sign on behalf of their clans/lineages/villages and the power that women exerted in the past, as themselves custodians of the land and sharing in a basket of benefits from the land, has been progressively eroded by models of patrilineal inheritance being aggressively promoted (even where matrilineal land inheritance once prevailed) and by the articulation of a more nucleated and individually focused 'ownership,' far more consonant with the capitalist values enshrined in the introduced law. Land sales have been regularly contested by custom landowners while the National Land Summit of 2006 advocated that the land law acknowledge both communal ownership and women as integral to decision making over land. The appointment of Ralph Regenvanu in March 2013 as the Minister for Lands and Natural Resources in the government led by Moana Carcasses may herald changes through new legislation passed in December 2013. But at this point McDonnell rightly concludes, 'the cultural power of land law in Vanuatu is that it has the potential to reconfigure indigenous notions of person and ples.' Thus we witness, as did Merry in Hawai'i, the cultural power of law in both the colony and the postcolony.

    Legal pluralism
  9. Miranda Forsyth detects similar processes ongoing apropos not just land and tangible resources in the Pacific but what is increasingly known as 'traditional knowledge' (or by its acronym TK). She is critical of those who are promoting models of intellectual property based on ideas of individual authorship and exclusive ownership regarding such knowledge. She is wary of a series of state-based laws and treaties in the Pacific and globally which are tending to enshrine such approaches to traditional knowledge and suggests that a model and ethic of legal pluralism is preferable.
  10. Like McDonnell, Forsyth is inspired by Sally Engle Merry's notion of legal pluralism as 'where two or more systems coexist in the same social field.'[10] In Forsyth's view, a pluralist approach looks first to those institutions which are regulating the field, and does not presume the state is the sole 'repository of regulatory power.' She applauds the progress made in law and development contexts and especially in post-conflict situations where states are weak or lacking legitimacy, in the creative and efficacious use of both state and non-state actors and institutions to resolve conflicts and foster harmonious development. Forsyth finds it curious that legal pluralist approaches have not been applied to protecting traditional knowledge and suggests that this has been because of three flawed assumptions about customary law's regulation of traditional knowledge: that customary law is too uncertain, that customary law can be applied by state institutions and that state-based property rights are consistent with customary law. She persuasively eschews these three assumptions and then turns to a fourth common claim, that customary legal regulation of traditional knowledge disadvantages women. Between the polar arguments that custom facilitates male domination or admits an indigenous women's agency distinct from human rights, Forsyth occupies a middle ground, aiming to harmonise indigenous culture and human rights in terms similar to that recently advanced by the New Zealand Law Commission.[11] She acknowledges, following Rebecca Monson[12] and McDonnell (this volume), that, in postcolonial contests over land in both Solomon Islands and Vanuatu, women have been prevented from claiming their interests, but suggests that this is connected to state control over such contests. As Monson depicts it, 'The recursive constitution of property and authority tends to consolidate control in the hands of a small number of men, while reproducing state norms and institutions as a masculine domain.'[13] Similarly there is growing global evidence that state laws which convert women's knowledge into raw materials or intellectual property disempower women. And so, Forsyth suggests the need for specific safeguards against privileging male claims over traditional knowledge.
  11. As in her previous work Forsyth offers practical suggestions about how the theory of legal pluralism can advance customary legal controls over traditional knowledge.[14] In her view, it is best not to transplant customary norms into state legislation since this often creates monstrous hybrids, but rather to promote the articulation of state and customary forms by defining discrete functions or levels, by allowing for multiple actors in any regulatory project and promoting the mutual reinforcement of diverse regulatory regimes. Thus she envisages the protection of traditional knowledge through a multi-stranded approach, 'spinning a web of interconnected regulations,' a legally pluralist vision akin to that advanced by Sally Engle Merry.

    Vernacularisation-gender, violence and human rights
  12. A third concept crucial for Sally Engle Merry and several authors of this volume is 'vernacularisation,'[15] as ideas such as human rights are translated into specific local languages and contexts, acquire novel meanings and are appropriated for use in daily life. The papers by Anna-Karina Hermkens and Monson both deploy this concept in relation to gender, violence, peacemaking and human rights in Solomon Islands. Both are situated in the context of a country which experienced a devastating conflict (1998–2003), rather euphemistically dubbed 'the Tension,' which originated in struggles between Malaitans and Guadalcanal people over 'development equity and cultural respect' but escalated into increasing civil unrest, lawlessness, economic collapse and government paralysis. An Australian-led regional intervention, the Regional Assistance Mission to the Solomon Islands (RAMSI), in 2003, is usually credited with ending the violence, though as Monson shows Solomon Islander women had a crucial role, especially in the earlier, local phases of peace-making.
  13. Hermkens notes how the widely quoted statistics about levels of violence against women in Solomons ('two out of three women aged between 15 and 49 years have been abused') are generalised from small sample surveys. They ignore similar reported rates for men, for example in a survey done in 2004, 75 per cent of women and 73 per cent of men reported direct personal trauma during the conflict. Statements by many local and international NGOs such as Amnesty International and the Optimistic World Foundation are focal to the claim that Solomon Islands' women are victims of an abusive patriarchy and that they have little autonomy or political power (see also Monson this volume). Such representations also pervade pronouncements from the Australian government and AusAID about how ending gender violence and promoting gender equality is crucial to the national development of Solomon Islands. They are also highlighted in analyses by legal scholars such as Jennifer Corrin Care[16] in ways that Hermkens suggests are over-generalised. Solomon Islands women may not be represented in national parliaments but they exert significant agency in local familial contexts, in Christian churches and, especially, in matrilineal regions, as mama blong graon, 'mothers of the land' who not only bear children but regenerate people and place. Thus, Hermkens argues local 'culture' and universal human rights are too often pitted against each other in the way that Merry has observed elsewhere.[17] In such oppositions archaic, essentialist, eternal notions of culture are deployed and old men are privileged as the ones who 'speak for culture,' rather than seeing culture as something created, contested and changing, as do most contemporary social theorists. Hermkens tries to get beyond such clichéd dichotomies to a space where there is a greater harmonisation of values. A crucial step in this is to witness how local women understand, appropriate and critique the concept of human rights.
  14. Hermkens' recent research has been focused in Marau, the area where fissile conflicts between Guadalcanal people and Malaitan immigrants, and particularly between Mbirau and Areare people, ignited in 1999. This has been the locus of a plethora of NGO projects aimed at redressing human rights violations and seeking justice and peace. Women have therefore been heavily exposed, even overexposed, to the language of human rights in local workshops. Several statements from Hermkens' interlocutors suggest that women perceive human rights as primarily about women and children, not men. Moreover, they do not connect these ideals to national projects of securing gender equality. Rather they think of rights far more as relational responsibilities and emphasise not so much the equality of women and men but their differences. Occasionally they criticise kastom: their heavy daily work burdens, the high bride price, and that women cannot express their views on genealogies and land. But many women accept that the husband is the boss of the family or that men, not women, speak in public. Some used the language of rights to talk about their rights to influence the future of the land and to oppose destructive logging and mining. In general women's testimonies evince how the notion of rights is intimately linked with notions of duties in kastom and with Christian ethics. Destroying the land was described by one interlocutor, Sylvia, as a 'bigfella sin.'
  15. Hermkens does not posit a complete incommensurability between the autonomous individual of human rights and the relational persons of Solomons' culture, but she does expose frictions between these models and how, for her women interlocutors, gender justice is more about reconciliation and responsibility than rights. Again the emphasis is that women are different to men, they must practise necessary relations of avoidance with their brothers and defer to husbands or elders where such respect is due. So does this particular vernacularisation of human rights as divergent gendered responsibilities threaten to subvert the foundational value of gender equality?
  16. In conclusion, Hermkens introduces a cruel paradox, that the gender inequality witnessed in contemporary Solomons may be the creation not just of local cultures but colonial interventions, of those earlier travelling concepts imported by missionaries and colonial state officials, that women's place was in the home, that women are primarily mothers and that the realm of politics and the state was for men. This was no doubt part of the earlier colonial message to save and civilise Solomons' women; here as elsewhere in the Pacific colonialism created such gendered domains.[18] As Hermkens points out, 'Ironically, current advocates of human rights in Solomon Islands try to uplift and save women by trying to get them out of the domestic into the public political sphere.' For Hermkens, promoting human rights for Solomons' women should be more directed to 'culture' not as an obstacle to development but as a site for creative transformations produced by transcultural frictions. She concludes that Mbirau women do not want to be 'saved' from their husbands or their culture. What they seek is true reconciliation after a tumultuous history of conflict, greater justice in local land disputes and the demands of daily life, less poverty and greater well-being, and perhaps the conjoint emancipation of women and men and the fulfilment of local ideals of what it means to be a good human being.
  17. Monson similarly refers to the 'vernacularisation' of women's political practice in Solomon Islands. Whereas Hermkens' research is focused on the region of Mbirau, Monson's lens is focused on the broader movement of Women for Peace in helping to end the conflict. Like Hermkens she is critical of those activists and scholars who emphasise only male domination in the Solomons, although clearly the militarisation of daily life radically transformed hegemonic masculinities in the period of the Tension from 1998 to 2003. Monson rejects those essentialist antinomies which posit that men are naturally inclined to be fighters and women peace-makers. Clearly many women were partisans in these complex conflicts while many men were engaged in peace making at several stages of the conflict. Initially some were local rural women acting alone or in church groups who used their powers in kastom, offering shell money to militants or physically standing between fighting men, to urge them to stop. But by 2000 many Solomons women had mobilised in more formal movements like Women for Peace, which assumed a national and global prominence, with women like Alice Pollard from Honiara and Dalcy Paina from Guadalcanal offering talks in several Australian cities. They met with militants, police, diplomats, politicians, the Prime Minister and Governor-General; meetings suffused with prayer, hymns and bible readings. They collected and distributed food and medicine to both fighters and victims; they drew attention to the lamentable consequences of the conflict especially for women and children. They sought funds for their efforts both within Solomons and beyond and attracted donors like AusAID, international NGOS and Australian civil society networks. Like other observers Monson notes how women were crucial in the early stages of making the peace but were progressively excluded from the later more formal stages of peace-making in Solomon Islands, Australia and New Zealand and the final signing of the Townsville Peace Agreement in October 2000 between Solomons governments and the major warring groups. John Braithwaite, Sinclair Dinnen, Matthew Allen, Valerie Braithwaite and Hilary Charlesworth have observed that the 'RAMSI public relations machine' tended to exclude Women for Peace from the memory of how peace was accomplished.[19] Monson argues by contrast that we should not only acknowledge the work of Women for Peace but also pay closer attention to their 'discursive, material and corporeal strategies' in making peace and legitimating their contributions.
  18. In advancing the cause of peace women deployed 'idioms of maternity' that were crucial to their political efficacy and moral force. Cakes were cooked and shared between militants on opposing sides; appeals were made to fighters as if they were their own children, and maternal hugs and tears offered. Monson challenges those who see the maternal idiom as conservative or apolitical. For example, Katherine Webber and Helen Johnson suggest that it would have been preferable if such women had used the language of citizenship and claim that this was the reason why they were excluded from the formal peace processes.[20] Monson responds that 'in so doing their analysis holds Solomon Islander women responsible for their own exclusion from the peace process and from parliament.' Monson observes how women proclaimed themselves not just of mothers of particular families, or regions but as 'mothers of the nation.' Quoting from participants like Margaret Maelenga of Guudalcanal speaking at the Truth and Reconciliation Commission, established by the Solomons' government in 2009, she suggests that maternity is far broader than biological maternity. Echoing notions of 'mothers of the land' in matrilineal Guadalcanal, maternity is expanded to embrace the reproduction of people and land into the future. Maternal idioms are thus evoked at a national scale by 'mothers of the nation.' Rather than pitting the categories of mother against citizen, we can see that these concepts are not mutually exclusive, indeed women become mother-citizens. Following Nicole George, Monson persuasively argues that ideas of maternity do not necessarily presume an innate female capacity for biological birthing and nurture, but can be expansive, radical and deeply political.[21]
  19. Moreover Monson insists that the deep religiosity of Women for Peace and their activities needs to be acknowledged. Secular Australian observers and sympathisers may have been discomfited by the deeply Christian character of their efforts and their faith in the efficacy of prayer but Christianity was crucial in uniting women across islands, ethnicities and denominations. Solomons' women have long mobilised in women's groups around churches and this enduring capacity for collective action was clearly crucial in the genesis and success of the movement. Women for Peace regularly used Biblical texts to legitimate their acts of public peace-making and to reinscribe their moral and political authority. But, as Hermkens argues for Mbirau women, they also conjoined the values of kastom and church. Alice Pollard and Dalcy Paina describe how they used practices particular to Malaita and Guadalcanal to stop the fighting: using words, gestures and their bodies to intervene, suggesting that fighting was tantamount to the taboo of stepping over a woman's body and if they broke that taboo then a large compensation was due. This allowed women to move into dangerous places and to cross borders; a corporeal practice which suggests a powerful political agency in the midst of deadly male conflicts. So Monson concludes that the way to empowerment for Solomons' women is perhaps less through the secular discourses and practices of international human rights law and more through those most locally relevant, kastom and Christianity. These are often maligned by foreign observers as sources only of women's subordination. This 'discursively and materially disables Solomon Islander women' and constructs them as 'victims of the very cultural and religious traditions they value.' Through her analysis of Women for Peace, Monson argues that kastom and Christianity can also be sources of women's own empowerment.
  20. The trio of papers by Katherine Smith, Stephanie Lusby and Christina Kenny also engage Merry's concept of vernacularisation and focus on questions about the conceptualisation of gender and gender violence which have been the subject of two of her influential works.[22] Smith considers the response of NGOs and specifically World Vision to the cholera outbreak in Papua New Guinea (PNG) in 2009–2010 in the context of broader humanitarian projects. Through a study of World Vision in particular she discerns a large chasm between the scrupulous attention given to gender in humanitarian charters such as the Sphere Handbook and the policy documents of World Vision and their realisation in practice. Those who work in developing global and national standards for this organisation are aware of the debates about the differences between sex and gender. Some still prefer a direct activist focus on women rather than gender, seeing the latter in aid discourse as a 'bureaucratically comfortable synonym for women.'[23] Others are aware of the dangers of conflating gender and women and suggest that any gender analysis needs to engage men and confront hegemonic masculinities. In part the distance between the expansive attention to gender in policy documents and its contraction in local practice was the result of the emergency created by the cholera outbreak, with 15,500 cases reported and 493 recorded deaths. Madang was badly affected and in particular the squatter settlement of Sisiak where the World Vision effort was focused. World Vision's aid efforts were on urgent improvements in water supply and sanitation to stop the precipitous spread of the disease.
  21. Reflecting back on the aid efforts a year or so later local staff members observed that emergency supplies entailed a general distribution to households, not specifically women or men and that men usually represented their families. Despite the fact that gender training was compulsory for all World Vision employees, Madang-based staff had a 'very vague and basic definition of gender' in contrast to the 'sophisticated theoretical and policy understanding' of national staff in Port Moresby. Indeed the closer staff members were to practical implementation the more indifferent or even resistant they were to considerations of gender. They saw gender concerns as more about satisfying donors than as attending to ways in which gendered differences may have played out in the outbreak. Indeed the only way gender was deployed in practical programming was in the assumption that women were inherently weak and vulnerable and that their interests were best represented and protected by men. Community consultation meant meetings with male leaders, rarely including women and women were thus presumed not to be articulate spokespeople or resilient agents in the crisis.
  22. Smith suggests three reasons for this dramatic divergence between gender policies, programming and implementation in this context. The first relates to World Vision's particular Christian and child focus. Despite an emphasis on gender equality and gender justice in their vision and a transformative approach to gender programming, their vision is still somewhat constrained within the parameters of western Christian conceptions of gender roles. The second relates to local perceptions of gender which, although they do not challenge policy directives from headquarters, see these as external concerns and as something resisted within the community. In Merry's terms we thus witness a failure to vernacularise or legitimate global concepts of gender. Third, Smith returns to the way in which in the context of an emergency such as the cholera outbreak, clinical activities were given precedence and gender concerns seen as a luxurious, time-consuming optional extra. Assertions were made about women being safe in their homes during the emergency despite the high levels of gender violence attested in most of PNG.[24]
  23. Lusby's paper also deploys Merry's concept of vernacularisation in Papua New Guinea, not in the context of an emergency outbreak of cholera but the longer-term spectre of the HIV epidemic. Like Smith she interrogates how transnational concepts of gender and gender violence have been grounded in PNG and considers the consequences of the integration of campaigns directed towards 'awareness' of HIV and gender violence, an integration often presented as 'best practice' by development practitioners. From the perspective of East New Britain Province she presents some disturbing details of the unintended consequences of such integration as revealed in conversations with young men. Lusby's article graphically evinces how important it is to engage with men in both HIV and gender violence campaigns but how that can present robust challenges.
  24. Although prevention of HIV and gender violence are distinct they both engage questions of unequal gendered power. Women's physical and cultural vulnerability has been seen to place them at greater risk of both. But as Lusby reveals, HIV awareness has attracted far greater support from donors, government and communities and gained far greater traction while gender violence has not and indeed seems to be getting worse in PNG. In contrast, earlier projections of high estimates of HIV infection in PNG have not been realised. Lusby considers the dynamics whereby the global understandings of both HIV and gender violence have been localised, or in Merry's terms 'vernacularised,' particularly through the work of translators 'who move between cultural, geographic and conceptual spaces,' translating up and down, in Merry's words 'mapping the middle' (see below). Following Holly Wardlow on Huli and Katherine Lepani on Trobrianders,[25] Lusby shows how translators mediate meanings, 'blending and morphing ways of telling and knowing.' But sometimes, as Merry acknowledges and John P. Taylor reveals for Vanuatu,[26] messages are morphed to such an extent that the original sense is evacuated: as in the use of the language of 'rights' to justify men's authority and women's subordination.
  25. Lusby discerns similar processes at work in East New Britain, where information intended to promote gender equality is used to harm women. In a graphic vignette she shows how young men who gained knowledge about HIV and forms of prevention used their new knowledge about condoms to protect themselves in acts of gang rape (or lainup), to ensure the female victim was klin. Like Lepani she critiques the prevailing individualist emphasis in HIV mass media campaigns, workshop training and community education. The widespread slogan of Lukaitim yu yet long HIV-AIDS translates as 'protect yourself from HIV/AIDS.' Such messages carry moral values as in the slogans of A-B-C and now D (Abstinence, Be faithful, Condom use and Delayed sexual initiation) in prevention and, as Lepani has cogently argued,[27] in their emphasis on an individual avoiding disease and death deny the relational character of desire and pleasure. As Lusby emphasises men's power to act autonomously in sexual relations is often far greater than women's, who for diverse reasons are not able to exercise such choices. Moreover, as in Taylor's case from Vanuatu, the persistent emphasis on the male perpetrator/female victim binary in gender violence education can generate a backlash from men who feel excluded from the 'human' in human rights education and even claim that they are the victims of the frustrations of modernity.[28]
  26. Lusby is well aware of the colonial historical baggage of the dichotomies of tradition and modernity, and alert to how such binaries are updated and localised in contemporary spectres of a monolithic globalisation threatening kastom. Such spectres can provoke an insistence on hegemonic masculinities or even hypermasculinities. Those men who practise progressive gender relations, such as men influenced by Christian or NGO education, are sometimes satirised, but are still crucial catalysts in the longer-term transformation of gender inequalities.
  27. Kenny's paper on Kenya also grapples with the problems of transnational concepts of gender in the context of the general election in 2007 and notions of gendered citizenship. She focuses on a seven-day sex strike initiated by a coalition of women's interest groups (the G10) to protest the failure of the Prime Minister and President to resolve their differences, which occasioned post-election violence which dramatically affected women. This episode highlights for Kenny the culturally and politically restrictive concepts of gender in Kenya. The organisers of the sex strike challenged this, by insisting on women's place in the public sphere of the state and the connections between intimate private lives and the public sphere. Their public statements deployed ideas of women's bodily autonomy and human rights inherent in modernist conceptions of individuated selves. Their vernacularisation of these global concepts confronted local ideas about men's 'conjugal rights' and even husband's rights to violently secure women's compliance.
  28. Kenny concurs with those analysts who discern not just a sexual dualism but gender asymmetry in Kenya, in which women were constructed primarily as producers of food and children and protectors of homes. This was the source of some power but it was ultimately grounded in productive and reproductive differences. Indeed the qualities which historically elevated women diminish them in a state predicated on an introduced colonial distinction between public and domestic spheres whereby it was men who engaged in wage labour and who assumed roles as political leaders in the new state. Women were increasingly disenfranchised by autocratic male politicians and their mobilisations, for instance against the patriarchal character of the World Bank's structural adjustments programs in the 1970s, were violently repressed. With the return of political pluralism and elections from the 1990s some women were elected to parliament but others were intimidated by violence and forced to withdraw their candidature. This was a feature of the 2007 election campaigns, along with widely reported electoral fraud. Despite robust challenges, Mwai Kibaki claimed victory and announced his cabinet, igniting violent riots and a huge escalation of sexual violence. Women fleeing violence were also subject to further violence in internal refugee camps. Such gender and sexual violence was not just 'collateral damage'; it was a conscious terror tactic.
  29. A power sharing deal between Kibaki and his opponent Odinga ultimately failed and it was in this context that the sex strike was announced by G10. This occasioned a massive outcry by men about the denial of their rights and the unavailability of women's bodies. One man threatened to sue the women leaders for damages caused by sleeplessness and stress. National and global commentary alluded to the parallels with Aristophanes Lysistrata the classical Greek comedy,[29] but some suggested the Kenyan scenario was more tragic. It was certainly less successful than the Greek case: rape within marriage was still not covered by laws against sexual offences. But as Kenny observes there was a similarity in the sundering of the division between polis and oikos, public and private. Kenyan women who entered the patriarchal public sphere of the state were portrayed as masculine and aggressive, as unfit for marriage and maternity. Thus Kenny ultimately concludes that attempts to vernacularise transnational ideas of human rights and women's corporeal autonomy have floundered in the face of entrenched Kenyan ideas of women as subjects delimited by relational kinship even if women's role as mothers affords them some protection against molestation. She concurs with Merry's adjudication that we are thus presented with two incompatible visions of the self: 'one is the rights bearing subject, the other the good wife.'[30]

    'Mapping the middle': empowered and vulnerable translators
  30. Merry has used the concept of 'mapping the middle' to describe the task of analysing the movement of ideas, such as human rights, from the international domain to the local.[31] The process of translation is one aspect of vernacularisation and it is both complex and fraught. Making human rights concepts resonate at the local level requires that they connect to local cultures, while at the same time retain the ideas of autonomy, choice and equality that shape the international understandings.[32] Merry has illustrated these tensions in mapping the transnational journey of international concern about violence against women via intermediaries such as NGOs and community leaders. This same attention to translation of cosmopolitan ideas appears in a number of papers in this collection, most particularly in Jane Ferguson's article on the Shan insurgency in Burma. Here Ferguson depicts a process wherein militant Shan women campaigned against the use of rape as a weapon of war by the Burmese military through relying on human rights concepts. The publication of the report License to Rape by the Shan Human Rights Foundation and the Shan Women's Action Network (SWAN) documented rapes, brutal violation and torture of ethnic Shan women used by the Tatmadaw (the Burmese Army) as part of a campaign of terror against insurgents.[33] Through that report and the international conference appearances and media exposure of one of its co-authors, Charm Tong, these women articulated their specific local concerns as women of an ethnic minority as part of a global struggle against the violation of women's human rights. Rather than raped women being victims of opportunistic violence, these women argued that rape was a conscious military strategy and that women's rights and ethnic rights were intimately linked.
  31. However, as Ferguson avows, such processes of 'making the local global' or 'mapping the middle' are filled with challenges and dangers. Merry suggests that, in translating between terrains suffused with political conflicts and contradictions, such women are 'both powerful and vulnerable.'[34] Some of Ferguson's interlocutors were proud that Charm Tong had brought their struggle to world attention. But her media profile and in particular her meeting with George Bush in 2005 was not only resented by the Burmese authorities but by Shan journalists who suggested that she was detracting from the honour and attention that Shan male fighters deserved. As Ferguson points out, this reveals a masculinism and male domination at the heart of the Shan nationalist insurgency akin to that of Burmese militarism and nationalism. Through a discussion of the life histories of two former Shan women soldiers and a militant nurse, all founding members of SWAN, Ferguson shows how women were subject to male domination during their decades-long participation in the insurgency. Even if women were soldiers they could never climb the ranks of the military hierarchy. Those women who were married to Shan soldiers were angered when their husbands visited border brothels. Some experienced sexual harassment or even gender violence from their male compatriots, yet complaints about rape by Shan men were never taken seriously by the male military authorities. Dissonant from such quotidian experiences of insurgent women, during the 1970s and 1980s women were publically glorified as brave fighters in a long genealogy of women warriors and the project of building a Shan state; photos, drawings, nationalist poems and songs celebrated their role. But then, in the late 1980s, the women who had been active in the Shan United Revolutionary Army (SURA) were dismissed as soldiers, after SURA's merger with the Shan United Army (SUA) to form the Mong Tai Army (MTA). They had to return to jobs as teachers, nurses, carpenters and printers, a retreat that occasioned a sense of resentment and frustration which fuelled their later feminist activism but also gave them some skills useful in publishing their report. Ferguson suggests that these contradictory processes within the gender relations of the insurgency were crucial in motivating these women to become translators to a global audience. Yet such women still advocate Shan militant nationalism. Ferguson concludes, 'In terms of international accolades and the power of human rights discourses, the written word triumphs, but the bearer of the pen is cautious if her husband or brother is the one wielding an AK-47.'

    Indicator culture, intersectionality and travelling concepts
  32. Finally we turn to Kathryn Henne's paper which connects some of Sally Engle Merry's most recent work on 'indicator culture' with Kimberlé Crenshaw's concept of intersectionality and Mieke Bal's notion of travelling concepts.[35] Henne looks at how Crenshaw's concept of intersectionality has travelled 'from the academy to institutions of governance.' Crenshaw's influential article was concerned to show how the American laws against discrimination did not recognise that women of colour experience not just the additive oppression of race and gender but multiple systems of power (race, class, gender, sexuality) intersecting and interlocking in terms of structure, politics and representations.[36] She imagined this through the metaphor of an intersection with traffic flowing in several directions rather than the unidirectional flow privileged in law. The concept has more recently gained traction in international human rights law focused on violence against women.
  33. But, as Henne argues, some analyses using this framework tend to reproduce an essentialism which Crenshaw eschewed, while some remain unduly focused on the intersectionality of the multiply marginalised rather than those who are variously privileged. The future promises of feminist theories of intersectionality in international human rights law are, she suggests, potentially vitiated by the countervailing power of 'indicator culture.' Sally Engle Merry has coined this term to critique not just the more general process whereby truth, facticity or evidence are equated with numbers but the more specific way in which quantitative measures are privileged in evaluating the efficacy of legal intervention. Through a series of forensic deconstructions of the flimsy basis of many 'indicators' invested with an aura of certainty, Merry has shown not just that these statistical techniques are an obdurate technology, but that they produce calcified categories of 'tiers' of nations or peoples which eerily reproduce earlier colonial teleologies of stages from savagery to civilisation.
  34. It would be easy to read the travels of the concept of intersectionality into a field dominated by indicator culture as an instance of what Mieke Bal dubs a 'roadblock.' But Henne is more hopeful of the exciting hazards and future promise of intersectionality theory. She applauds its use in critical race theory and in analyses of global inequalities, gendered or otherwise. But echoing some of its critics she suggests that it can become a simple tool kit rather than a robust critical analysis, that it can rely unduly on premises of 'identity' and if used in a positivist and quantitative way can even resubjugate women of colour as subjects and scholars. Ultimately Henne opts for a reflexive recognition of the partiality of knowledge and the complex nuances of subjectivity elided by a positivist lens.
  35. Intersectionality has been invoked by the current United Nations Special Rapporteur on Violence Against Women (VAW), Rashida Manjoo, to highlight the failures of policy to confront the intersectionality underpinning VAW globally.[37] Yet deploying the concept in this context is hindered by the way in which reports from the United Nations Statistics Division use indicators of empirical measures of violence and progress made in counteracting based on fifty-nine nationally representative surveys. Its recommendations only focus on refining the indicators, a decidedly technocratic solution. The focus is resolutely on physical and sexual violence rather than structural violence and the search for better quantitative data is at variance with the Special Rapporteur's desire for open-ended questions which reveal connections between violence, subordination and context. This suggests intersectional thinking beyond the frameworks of indicator culture and thus gives hope that there is an open future for this good feminist theory, that past patterns do not dictate future possibilities. Following Elizabeth Grosz, she champions the value of robust debates between different strands of feminism, even if the differences sometimes seem theoretically incommensurable.[38] Still she discerns the possibility of a new colonisation around the figure of the subaltern 'third-world woman': 'colonisation is not simply a process that shapes the territorial spaces people occupy; it infiltrates knowledge through which we come to know about those people. Indicator culture compounds the dilemmas of the subaltern, because its empirical appeals dismiss other narrative approaches and the voices that speak to them.'

  36. This collection records the engagement of Sally Engle Merry with newer, emerging researchers at the Australian National University and vice versa. While Merry's ideas have influenced scholars all around the world, her physical presence in Canberra reminded us that conversations and debates in person are especially galvanising. We were struck by the humility she embodied in dialogues with us around questions of gender and justice. She models scholarship that takes the influence of international ideas seriously, paying attention to the ways in which they infiltrate, are translated and are resisted. These papers are inspired by Merry's ideas, but take them into new territories. They reflect the spirit of collaboration and good humour that characterised the workshops. Sally's presence catalysed a dialogue not just with her but between us (Margaret and Hilary) as scholars and editors and connected us to networks of talented and innovative emerging researchers. All these papers contribute to thinking through the puzzle of the possibilities of an international feminist politics pursuing gender justice given the profoundly different experiences of women worldwide.


    [1] See for example, Margaret Jolly, 'Introduction-engendering violence in papua new guinea: persons, power and perilous transformations,' in Engendering Violence in Papua New Guinea, ed. Margaret Jolly, Christine Stewart with Carolyn Brewer, Canberra: ANU E Press, 2012, pp. 1-45, online, accessed 18 July 2013; John Braithwaite, Sinclair Dinnen, Matthew Allen, Valerie Braithwaite and Hilary Charlesworth, Pillars and Shadows: Statebuilding as Peacebuilding in Solomon Islands, Canberra: ANU E Press, 2010, online:, accessed 5 August 2013.

    [2] Sally Engle Merry, Colonizing Hawai'i: The Cultural Power of Law, Princeton, NJ: Princeton University Press, 2000.

    [3] Sally Engle Merry, 'Legal pluralism and transnational culture: The Ka Ho'okolokolonui Kanaka Maoli Tribunal, Hawai'i, 1993,' in Human Rights, Culture and Context: Anthropological Perspectives, ed. Richard A. Wilson, London: Pluto Press, 1997.

    [4] Merry, Colonizing Hawai'i, p. 149.

    [5] Merry, Colonizing Hawai'i, p. 150.

    [6] Sally Engle Merry and Donald Lawrence Brenneis, Law & Empire in the Pacific: Fiji and Hawai'i, Oxford: School of American Research Press, 2003.

    [7] Edward Jacomb, The Joy Court: Comédie Rosse, Braybrook & Dobson, 1929.

    [8] Gregory Rawlings, 'The chief mason, the expatriate and the banyan tree,' in Conversations: Occasional Writings from the Research School of Pacific and Asian Studies, ed. Brij Lal, Canberra: Australian National University, 2000, pp. 61–68; Gregory Rawlings, 'Foundations of urbanisation: Port Vila Town and Pango Village, Vanuatu,' Oceania, vol. 70, no. 1 (1999): 72–86; Gregory Rawlings, 'Villages, islands and tax havens: the global/local implications of a financial entrepôt in Vanuatu,' Canberra Anthropology, vol. 22, no. 2 (1999): 3–50.

    [9] Colin Filer, 'Custom, law and ideology in Papua New Guinea,' The Asia Pacific Journal of Anthropology, vol. 7, no. 1 (2006): 65–84.

    [10] Sally Engle Merry, 'Legal pluralism,' Law and Society Review, vol. 22, no.5 (1988): 869–96, p. 870.

    [11] New Zealand Law Commission, Converging Currents: Custom and Human Rights in the Pacific, Wellington: NZLC SP17, 2006, p. 13.

    [12] Rebecca Monson, 'Hu Nao Save Tok? Women, men and land: negotiating property and authority in Solomon Islands,' Ph.D. thesis, Canberra: Australian National University, 2012.

    [13] Monson, 'Hu Nao Save Tok?' p. 7.

    [14] Miranda Forsyth, A Bird that Flies with Two Wings: Kastom and State Justice Systems in Vanuatu, Canberra: ANU E Press, 2009, online:, accessed 18 July 2013.

    [15] Merry, 'Legal Pluralism and transnational culture'; Human Rights and Gender Violence. Translating International Law into Local Justice, Chicago: University of Chicago Press, 2006; 'Transnational human rights and local activism: mapping the middle,' American Anthropologist, vol. 108, no. 1 (2006): 38–51; 'New legal realism and the ethnography of transnational law,' Law and Social Inquiry, vol. 31, no. 4 (Fall 2006): 975–95.

    [16] Jennifer Corrin Care, 'Customary law and human rights in Solomon Islands – a commentary on Remisio Pusi v James Leni and Others,' Journal of Legal Pluralism, vol. 43 (1999): 135–44; Corrin Care, 'Customary law and women's rights in Solomon Islands,' Development Bulletin, vol. 51 (2000): 20–22; Corrin, 'Ples Bilong Mere: law, gender and peace-building in Solomon Islands,' Feminist Legal Studies, vol. 16, no. 2 (2008): 169–94.

    [17] Merry, 'Human rights law and the demonization of culture.'

    [18] Margaret Jolly, '"To save the girls for brighter and better lives": Presbyterian missions and women in the South of Vanuatu: 1848 –1870,' The Journal of Pacific History, vol. 26, no. 1 (June1991): 27–48. Jolly, 'Woman Ikat Raet Long Human Raet O No? Women's rights, human rights and domestic violence in Vanuatu,' Feminist Review. The World Upside Down: Feminisms in the Antipodes, vol. 52 (1996): 169–90, p. 185.

    [19] John Braithwaite, Dinnen, Allen, Valerie Braithwaite and Charlesworth, Pillars and Shadows

    [20] Katherine Webber and Helen Johnson, 'Women, peace building and political inclusion: a case study from Solomon Islands, Hecate, vol. 34, no. 2 (2008): 83–99.

    [21] Nicole George, '"Just like your mother?" The politics of feminism and maternity in the Pacific Islands,' The Australian Feminist Law Journal, vol. 32 (2010): 77–96.

    [22] Sally Engle Merry, Human Rights and Gender Violence; 'Measuring the World: indicators, human rights, and global governance,' Current Anthropology, vol. 11, no. S3 (2011): S83–95.

    [23] Cynthia Enloe, 'Closing remarks,' International Peacekeeping, vol. 8, no. 2 (2001): 111–13, p. 111.

    [24] Jolly, Stewart, Brewer (eds), Engendering Violence in Papua New Guinea; c.f. Holly Wardlow, 'Treating gender violence: MSF's project in Tari, Papua New Guinea,' paper presented at the Australian National University, August 2012.

    [25] Holly Wardlow, Wayward Women: Sexuality and Agency in a New Guinea Society, Berkeley and Los Angeles: University of California Press, 2006; Katherine Lepani, Islands of Love, Islands of Risk: Culture and HIV in the Trobriands, Nashville: Vanderbuilt University Press, 2012.

    [26] John P. Taylor, 'The social life of rights: "gender antagonism," modernity and raet in Vanuatu,' The Australian Journal of Anthropology, vol. 19, no. 2 (2008): 165–78.

    [27] Lepani, Islands of Love, Islands of Risk.

    [28] See Fiona Hukula, 'Conversations with Convicted Rapists,' in Engendering Violence in Papua New Guinea, ed. Margaret Jolly, Christine Stewart with Carolyn Brewer, Canberra: ANU E Press, 2012, pp. 197–212, online:, accessed 9 December 2013.

    [29] Aristophanes, Lysistrata: The Women's Festival; and Frogs, trans. Michael Ewans, Norman: University of Oklahoma Press, 2010. For an online version, see Lysistrata, translated from the Greek of Aristophanes, illustrations by Norman Lindsay, online:, accessed 18 July 2012.

    [30] Sally Engle Merry, 'Rights talk and the experience of law: implementing women's human rights to protection from violence,' Human Rights Quarterly, vol. 25, no. 2 (May 2003): 343–81, p. 351.

    [31] Merry, Human Rights and Gender Violence.

    [32] Merry, Human Rights and Gender Violence, p. 49.

    [33] Shan Human Rights Foundation, License to Rape, Chiang Mai: Shan Human Rights Foundation, 2002.

    [34] Sally Engle Merry, 'Transnational human rights and local activism: mapping the middle,' American Anthropologist, vol. 108, no. 1 (2006): 38–51 p. 40.

    [35] Merry, 'Measuring the world'; Kimberlé Crenshaw, 'Demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics,' University of Chicago Legal Forum, 1989, pp. 139–64; and 'Mapping the margins: intersectionality, identity politics, and violence against women of color,' Stanford Law Review, vol. 43, no. 6 (1991): 1241–99; Mieke Bal, Travelling Concepts in the Humanities: A Rough Guide, Toronto: University of Toronto Press, 2002.

    [36] Crenshaw, 'Demarginalizing the intersection of race and sex.'

    [37] Rashida Manjoo, 'Report of the Special Rapporteur on violence against women, its causes and consequences,' Human Rights Council, Seventeenth session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural, including the right to development, Geneva: United Nations General Assembly, 2011, online:, accessed 22 July 2013.

    [38] Elizabeth Grosz, 'Histories of a feminist future,' Signs: A Journal of Women in Culture and Society, vol. 25, no. 1 (2000): 1017–21.


Published with the support of Gender and Cultural Studies, School of Culture, History and Language, College of Asia and the Pacific, The Australian National University.
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