Academic journal article Law & Society Review

The Cultural Power of Law? Conjunctive Readings

Academic journal article Law & Society Review

The Cultural Power of Law? Conjunctive Readings

Article excerpt

Sally Merry's (1999) Colonizing Hawaii: The Cultural Power of Law provides a compelling account of the cultural transformation of the Kingdom of Hawaii in the nineteenth century. The focus is on the law, particularly on the manner in which Hawaiian alii (chiefs) and American lawyers and missionaries sought to make of Hawaii a modern, sovereign nation on the model of the "civilized world," a process that demanded the dissolution of Hawaiian modes of governance and the concomitant contortions of the system of rank that they had entailed. It is also a narrative of the competing interests of American missionaries and American traders and merchants, who desired different ends but whose means sometimes had complementary effects. For example, missionary efforts to promote marital fidelity worked in tandem with the needs of emerging and transforming social hierarchies: Adulterers had the "choice" to work off their sentences by building roads for the chiefs. And people deemed (by missionaries) incapable of governing their sexual appetites could scarcely be trusted (by plantation owners) to govern their own nation (p. 2.50). Notions of the body, sexuality, gender, race, citizenship, and belonging are at the center of the transformations the book documents in a richly evocative account of the colonial disciplining of a Pacific people. At the same time, Merry shows how the disciplinary process was incomplete, fractured, and uncertain, and that colonized Hawaiians of both elite and commoner rank used the colonizing process at various times to further their own ends, as an arena for making claims to personhood. Women, for example, became objects of the law's "surveillance and control" in the colonial policing of sexuality, but at the same time women were able to use the resources colonial law provided to challenge wife-battering (p. 265).

I have been asked to provide a "reading" of Merry's book. I have been told not to review the book, but to reflect on its contribution to wider debates in sociolegal studies and the anthropology of law. Thus, I will not go into detail about the fascinating material Merry has brought together in this remarkable work. Rather, I would like to explore the book's attention to the relationship between "culture" and "law." I want to think about the ambiguities that, as Merry indicates, emerge from the conjunction linking these two terms; a conjunction that points toward a certain theoretical exhaustion in the domains of inquiry that take "culture" and "law" as their objects.

In an introduction to a recent collection of articles on law, culture, and colonialism, John Comaroff (2001) notes that much of the recent scholarship in this area has rested "between two poles": law is understood to be "a vehicle simultaneously of governmentality and of its subversion, of subjection and emancipation, of dispossession and reappropriation" (Comaroff 2001:307). "To the extent that a point of rest has been reached" between these two poles, "we are left with a very basic question: Is there anything more to say on the topic, other than to offer further historical and/or ethnographic illustration" (2001:307)? Comaroff believes that indeed there is something more to say, and that in addition to further empirical illustration (the "exactly" whys, whens, and hows, as he puts it, p. 308), we have yet to delve deeply enough into four specific areas: first, the frames of reference of colonial law; second, the manner in which law was "constitutive of colonialism, tout court" (p. 309, emphasis in original); third, the use of colonies as experimental laboratories for methods of governance and modalities of regulation; and fourth, the contradictions and complex relations among different kinds of colonizers that were "often negotiated in the space of law" (p. 311).

Merry's book provides ample illustration of each of Comaroff's suggestions for what more there is to say about law, culture, and colonialism. She outlines the discursive referents of law and legality in the Hawaiian context, both in the period preceding the importation by the alii of legal forms from New England and in the aftermath of that appropriation. …

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