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Global legal pluralism and the


temporality of soft law
a
Sally Engle Merry
a
Department of Anthropology, New York University, New York, NY,
USA
Published online: 14 Apr 2014.

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To cite this article: Sally Engle Merry (2014) Global legal pluralism and the temporality
of soft law, The Journal of Legal Pluralism and Unofficial Law, 46:1, 108-122, DOI:
10.1080/07329113.2014.882103

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The Journal of Legal Pluralism and Unofficial Law, 2014
Vol. 46, No. 1, 108122, http://dx.doi.org/10.1080/07329113.2014.882103

Global legal pluralism and the temporality of soft law


Sally Engle Merry*

Department of Anthropology, New York University, New York, NY, USA


(Received 14 December 2012; accepted 16 December 2013)

The global legal field is constituted by a wide array of laws, guidelines,


recommendations, practices, and standards which are enforced in multiple, overlapping,
and sometimes inconsistent ways. Moreover, it is constantly changing as some
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standards become solidified into rules that have increasingly strong normative and
institutional support, while others fall into disuse. Understanding the global legal order
requires attending to its temporality. This article emphasizes the temporality of the
global legal order by tracing the creation of an index to measure economic and human
development. I use the example of Human Development Index to show how, over time,
a radical theory can become a widely accepted perspective that influences policy-
makers and publics. The index began from a general theory of human development and
was translated into a system of ranking that gradually became authoritative for policy-
makers and publics.
Keywords: global legal pluralism; soft law; human development; human rights;
temporality

Introduction
The pluralism of the global legal order is enhanced by the rapid proliferation of standards,
guidelines, recommendations, and multilateral agreements that are typically described as
soft law. The term refers to a wide range of international instruments, communications,
informal agreements, memoranda of understanding, and codes of conduct that are not
technically legally binding (Levit 2005, 127; Shaffer and Pollack 2010; Berman 2012).
Zerilli defines soft law as a legal and hence political technology consistent with the cur-
rent phase of global capitalism and related changes in law and governance (2010, 8). It
has received added attention in the European Union as it seeks to build a shared legal sys-
tem while allowing for national differences, leading to the use of the open method of
coordination using largely soft law instruments (Trubek and Trubek 2005). Snyder
defines soft law as those rules of conduct which, in principle, have no legally binding
force but which nevertheless may have practical effect (1993, 16). This implies a con-
trast with hard law, which is legally binding. Although in theory some rules are legally
binding while others are not, in practice enforcement varies widely in certainty and effec-
tiveness. For example, although human rights conventions are technically legally binding
on states that ratify them, like most laws they are enforced largely by influence, social
and economic pressures, and threats to national reputations. Many multilateral treaty
regimes have no means of enforcement, yet there is some level of compliance.
In practice, the global legal field is constituted by a wide array of laws, guidelines,
recommendations, practices, and standards which are enforced in multiple, overlapping,

*Email: Sally.merry@nyu.edu

2014 Legal Pluralism and Unofficial Law


The Journal of Legal Pluralism and Unofficial Law 109

and sometimes inconsistent ways. Moreover, it is constantly changing as some standards


become solidified into rules that have increasingly strong normative and institutional sup-
port, while others fall into disuse. Understanding the global legal order requires attending
to its temporality.
In this article, I emphasize the temporality of the global legal order by tracing the cre-
ation of an index to measure economic and human development. I use the example of the
Human Development Index (HDI) to show how, over time, a radical theory can become a
widely accepted perspective that influences policy-makers and publics. The index began
from a general theory of human development and was translated into a system of ranking
that gradually became authoritative for policy-makers and publics. This is not a quick
process. This article traces the long process through which a theory becomes an index
and gradually acquires such broad acceptance that its principles take on authority. Once
an index becomes widely accepted as a truthful description of the world, it acquires the
normative support and implicit acceptance that marks hard law.
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Quantitative measures of performance, or indicators, contribute to this transformation.


There is considerable effort now to develop indicators for a variety of international laws
and norms (see Merry 2011; Davis, Kingsbury, and Merry 2012; Merry 2012). Indicators
define legal obligations more clearly and specify the terms of compliance. Indicators are
a primarily quantitative system for measuring behavior and offer an apparently objective,
or at least numerical, way to assess compliance. Indicators act to clarify and specify law
and consequently to increase accountability by making the terms of compliance more pre-
cise. For example, the right to health can be measured by indicators such as the percent-
age of children under five that have been vaccinated. Statistical data and indicators
promise to provide more accurate and relevant information as well as to streamline the
process by which compliance with human rights treaties is assessed, referred to as the
treaty body process. Such measurements produce readily comparable measures that per-
mit ranking and shaming, but at the price of a simplification and decontextualization that
runs counter to a case-based mode of legal thinking. For example, statistics on rates of
domestic violence indicate the scope of the problem but not the particular configuration
of factors associated with an individual act of violence. Such information is critical to
determining where and when the legal system should intervene.
There is an important dimension of recursivity in the use of indicators. As they specify
and clarify soft law, they also create the categories on which the measures are based and
define the concepts that the laws articulate (see Halliday and Carruthers 2009; Halliday
2009). They develop and change over time in response to the way problems are framed
and information becomes available. For example, one of the most successful indicators of
human development, the HDI, took decades from its initial theoretical inspiration to its
translation into an index with broad acceptance. The HDI is a prominent, widely used mea-
sure that dramatically expands ways of thinking about and measuring development (Ward
2004, 200203). It replaced income measures with a more human rights based framework
that focused on human capacity. Although it is not a law like a human rights convention,
the HDI incorporates human rights principles and establishes standards for states.
The HDI became widely used by publics and policy-makers because it is simple,
straightforward, easy to understand, and promoted by a powerful international develop-
ment organization. It expressed a new theory of development during a period of critique
of existing theories. In this case, there was a positive iterative relationship between the
indicator and the theory, with each strengthening the other. When indicators are success-
ful, in that they are widely used and accepted, the indicator and the theory enhance each
others popularity. And this usually takes time.
110 S.E. Merry

The HDI is the product of a long period of research, analysis, and experiment. It is
promoted by a leading, powerful institution and formulated by scholars and policy-mak-
ers located within prominent academic and policy centers. Like indicators in general, it
does not explicitly articulate a theory but implicitly adopts one. Its creators acknowledge
that it is a very simplified representation of a far more complex body of data but offers a
convenient and quick summary for policy-makers. Indicators are quite distinct from the
underlying statistical data that constitute them since they are single numbers or ranks
designed for ease of comprehension and use as well as accuracy. Although there has been
considerable debate and controversy over the HDI, it has become established while other
indicators, such as a political freedom index (PFI), have not. Like many global indicators,
the HDI uses the nation as the unit of analysis. Although there are concerns that this basis
of measurement fails to incorporate the significant inequalities by region as well as gender
and ethnicity, indicator construction depends on the quality of data available, which may
exist only at the national level.
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The human development index


Developed in 1990 to replace gross national product (GNP) per capita as the measure of
development, the HDI expresses the theory that social and economic developments are
inextricably related and need to be considered together. Development consists of both
social and economic factors, not just income growth. Thus, the index articulated a new
theory of development. Instead of focusing only on growth in GNP, this indicator com-
bines economic and social factors in what is called a capabilities approach that empha-
sizes ends, like a decent standard of living, over means, like income per capita. Following
Amartya Sens capabilities approach, it measures access to health, education, and goods
that give individuals the capacity to achieve their desired state of being (Stanton 2007, 3;
Sen 2003). This approach constituted a new understanding of development itself. As
Stanton observes, In 1990, the United Nations Development Program (UNDP) trans-
formed the landscape of development theory, measurement, and policy with the publica-
tion of its first annual Human Development Report (HDR) and the introduction of the
Human Development Index (2007, 3). Advocates have made innovative use of the HDI
to attract the attention of policy-makers, finding it particularly effective for advocacy and
policy analysis. For example, subnational HDI figures reveal sharp inequalities in human
development within one country, such as between urban and rural areas or between racial
or gender groups (Fukuda-Parr and Kumar 2003, xxvi).
The HDI combines proxies for three human capabilities: longevity, knowledge, and a
decent standard of living. Longevity is represented by life expectancy at birth and knowledge
by adult literacy and mean years of schooling, weighted 2/3 to literacy and 1/3 to schooling.
A decent standard of living is measured by gross domestic product (GDP) per capita based
on US dollars, using purchasing power parity (PPP) to eliminate differences in national price
levels (Haq 2003, 129). A decent standard of living is measured by a cut-off point defined as
an income level regarded as adequate for a reasonable standard of living and reasonable
fulfillment of human capabilities. It is based on the current global average real GDP per
capita in PPP dollars. These three measures are given equal weight and averaged together.
The HDI, and the HDRs which included it, were developed by the major UN Develop-
ment Programme (UNDP). It grew out of almost 30 years of work and thinking in the field
of development economics and represented a significant shift from a focus on utility to
welfare. Efforts to produce such welfare-focused indicators began in the 1960s along
with a critique of the dominant focus on growth in GNP since this measure neglected
The Journal of Legal Pluralism and Unofficial Law 111

issues of employment, income distribution, jobs, and justice (Streeten 2003, 94). By the
1970s, there was an increasing interest in a basic needs approach. By the 1980s, how-
ever, the basic needs approach seemed too narrow as new concerns arose about women
and children, the physical environment, human rights, political freedom and governance,
and the role of culture. New theories of economic growth focused not only on technologi-
cal progress alone but also on the behavior of people, highlighting the importance of edu-
cation and knowledge for productivity. Sen (1999) proposed an approach that expanded
the basic needs idea by emphasizing the importance of freedom to choose as the basis for
well-being. He argued that a standard of living should be judged by a persons
capability to lead the life that he or she values, including being well fed and healthy, to
achieving self-respect and participating in the life of the community (Streeten 2003, 94
100). The capabilities approach formed the theoretical basis for the HDI.
The HDI was the product of the UNDP and the efforts of a small group of elite devel-
opment economists who served as advisors to the UNDP. The principal architect of the
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concept, Mahbub ul Haq, had experience in the World Bank, while his advisors held aca-
demic positions at Oxford, Cambridge, London School of Economics, Yale, and Boston
University (Fukuda-Parr and Kumar ([2003] 2005), 8591, 393395). Mahbub ul Haq
was an economist trained at Government College, Lahore (19481953), Kings College,
Cambridge (19531955), and Yale University (19551957). He was the Chief Economist
of the Pakistan Planning Commission, Director of the World Banks Policy Planning
Department (19701982), and Planning and Finance Minister in Pakistans Federal Cabi-
net (19821988). From 1989 to 1995, he served as Special Advisor to the Administrator
of the UNDP and chief architect of the HDRs. In 1995, he set up the Human Development
Centre in Islamabad. A second major contributor was Amartya Sen, who developed the
capabilities approach. He says Mahbub was one of his closest friends since their under-
graduate days in Cambridge and describes him as his extraordinary friend (Sen 2003,
viii). Sen himself was master of Trinity College Cambridge, taught at Oxford, London
School of Economics, and Delhi University, and is now professor of economics and phi-
losophy at Harvard University. He was awarded the Nobel Prize in economics in 1998
and served as president of the American Economic Association, Indian Economic Associ-
ation, Development Studies Association, and Social Choice and Welfare Society
(Fukuda-Parr and Kumar ([2003] 2005), 394). The creators and consultants behind the
HDI came largely from the UK, India, Pakistan, Europe, and the USA. They came from
prominent academic institutions as well as the World Bank and the UN.
Clearly, the HDI drew on a long process of intellectual development, efforts to adapt
development theory in the light of its apparent failures, and changing ways of thinking
about what development meant. But this was an institutional process as well as an intel-
lectual one. The creators of the index were economists in preeminent academic institu-
tions who worked with economists at the World Bank and UNDP to rethink their
approaches to development. The impact of global events, the rise of the human rights
movement, and new concerns with gender inequality all contributed to the change in theo-
retical orientation. The indicator provided a shorthand mechanism for conceptualizing
this change. By 2003, it was sufficiently settled as a measure that efforts to change it have
resulted in only minor adaptations. The Human Development Reports Office (HDRO)
has created new indicators related to the HDI such as the Gender Development Index of
1995 and the human poverty index.
Clearly, the HDI is based on a theory of development that sees education and health as
critical dimensions of development, along with income levels. As with other indicators, it
does not test the theory but simply represents it. In practice, it expresses a normative
112 S.E. Merry

position about development. Proving whether or not social development contributes to


economic development is not the focus of the HDI. Instead, the measure assumes that this
connection exists. Thus, it is parallel to Perry-Kessaris analysis of the World Banks
investment climate assessment indicator, which claims to provide information about
investors concerns about the quality of the legal system such as levels of crime and cor-
ruption to guide their investment decisions. This indicator assumes that investors consider
the quality of the legal system seriously. However, Perry-Kessaris evidence suggests that
many investors in South Asian countries fail to investigate the legal system before they
invest or say that it is not of great importance to them. Indeed, it is possible that investors
prefer poor legal systems, as some data indicates that in India, investment is high where
corruption is high. Despite this contradictory data, Perry-Kassaris (2008) notes that the
World Bank continues to assert its theory that investment climate, as it has been
defined, is important to investors.
Those who create indicators are fully aware that they are simplifications, that they
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represent only certain features of the phenomenon they want to measure, and that they
are designed to persuade. For example, Amartya Sen calls the HDI a deliberately con-
structed crude measure, but notes that its creator, Mahbub ul Haq, . . . did succeed in
getting the ear of the world through the high publicity associated with the transparent sim-
plicity of the HDI as an index. But it is extremely important not to read more into the HDI
than is there (2003, x). Sen was one of the principal consultants on the HDR of 1990,
which first presented the HDI, and at first he objected to a crude composite index like the
HDI, since there was so much other information in the report that was not included. Haq
replied We need a measure of the same level of vulgarity as GNP just one number
but a measure that is not as blind to social aspects of human lives as GNP is (Stanton
2007, 14; quoted in UNDP 1999, 23; see also Haq 2003). Fukuda-Parr and Kumar say,
Everyone agrees the index is neither perfect nor comprehensive, and Haq himself said
the HDI is of the same level of vulgarity as the GNP, but he thought it would draw
attention to issues of peoples lives and on the social aspects of human lives, unlike GNP
(2003, xxv). Sen also thought that using constant weights for the three constituent ele-
ments was an oversimplification. This example suggests that those who produce indica-
tors recognize the importance of the aesthetics of indicator construction and face the
necessity of sacrificing complexity and qualification for simplicity. An indicator is a form
of art designed to persuade policy-makers and the general public.
Indicators are fundamentally pragmatic representations in which accuracy and unre-
liable comparisons are balanced against ease of comprehension, likelihood of reception,
and the overall goal of promoting a perspective. Indicators are modes of persuasion that
depend on compromises with the data. Sen says that Mahbub was impatient with the
theory. He created a broad vehicle that accommodated many theoretical approaches but
did not necessarily resolve their differences. He wanted a practical accord, not concep-
tual agreement, and was always ready to revise (Sen 2003, ix). Stanton notes a long
series of criticisms of the HDI: that it is conceptually unsound, has poor data, uses the
wrong indicators, uses the wrong formulas for calculations, is wrong in the way the con-
stituent parts are weighted, and has a simplistic methodology. Nevertheless, she notes
that others say it is straightforward and easy to comprehend, and that the even weights
are, in practice, not too different from those generated by multivariate systems (Stanton
2007, 19).
In commenting on all the suggestions made to add to or expand the HDI, Haq
acknowledges the limited range of behavior the HDI covers but reasserts the value of a
single composite index rather than many separate ones, arguing that:
The Journal of Legal Pluralism and Unofficial Law 113

busy policy-makers cannot absorb a host of separate social indicators pointing in all direc-
tions. For any useful policy index, some compromises must be made. But such compromises
must not sacrifice the professional integrity of the broad picture that the composite index
intends to convey. (2003, 136)

The index, he claims, is a useful measure for some policy purposes, but should be sup-
plemented by other, more detailed socioeconomic indicators.
What are the consequences of providing this seductively simple piece of information,
recognized by those who produce it as already inadequate? Who are these busy policy-
makers, and what does it mean to offer them shortcuts in their knowledge base to facili-
tate rapid decision-making? Should the HDI be used as the basis for aid allocations, as
Haq asks? (2003, 137). If so, should funds go to those with the lowest HDI ranks, who are
most needy, or to those with the fastest rate of improvement over time (2003, 137)? Does
investing in health and education actually enhance economic growth and well-being?
Does it foster a new set of international norms for states to follow, thus expanding global
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legal pluralism? These are some of the thorny questions fundamental to understanding
the effects of indicators as a way of developing knowledge about the world.
Indicators must be politically acceptable to be successful. For example, the index of
political freedom was created by the producers of the HDI in 1992 because there were
concerns that the existing measure did not address civil and political freedoms. The PFI
consists of five measures: personal security, rule of law, freedom of expression, political
participation, and equality of opportunity and included data on 102 countries. The PFI
did not rank countries but provided aggregates for high, medium, and low countries by
HDI, income, and industrial vs. developing world. However, it was dropped the next year
for diplomatic reasons. It had generated too much political heat (Fukuda-Parr and
Kumar 2003, xxvii). According to Haq, the methodology he adopted for the HDI is based
on certain pragmatic considerations of political acceptability (2003, 129).
Moreover, the availability of data for indicator analysis also depends to some extent
on political acceptability. The HDI uses the nation as the unit of analysis, as do many
global governance indicators. The index ranks countries according to their HDI scores.
However, it is clear that countries differ significantly internally and have considerable
inequality, particularly in incomes by region, ethnicity, gender, and other factors. There
are efforts to disaggregate by income, gender, ethnicity, and geographical region in
the HDRs. Haq (2003, 133) notes that the disparities by gender and ethnic group can be
shocking, and when countries see their HDI rankings decline as a result, there is contro-
versy and sometimes new policy activity. He also notes that some countries are reluctant
to collect data that would expose such inequalities (2003, 133). Fukuda-Parr, Raworth,
and Kumar (2003, 180) observe that disaggregated HDI data is desirable but not easy to
get at subnational and local levels for many of the indicators, such as life expectancy at
birth, or unreliable because of administrative reporting contexts, such as enrollment in
schools, which tend to be exaggerated in many countries of South Asia.
Despite widespread acceptance of the HDI in theory, there have been periodic strug-
gles over its content and source of data. These fights underscore how important this indi-
cator is to individual countries. Critiques of the HDI have surfaced in the United Nations
Statistical Commission (UNSC) several times, both about its methodology and its use of
data. In 2000, in response to a complaint from Australia about the choice of indicators
and the statistical content of the HDR 1997, an expert group met and agreed that there
was a lack of transparency in the sources of data in that years report. A similar issue
emerged again in 2010 when some delegates expressed concern about the fact that the
114 S.E. Merry

UNSC did not have oversight over the HDI, among other problems. The UNSC appointed
a Friends of the Chair committee as an expert group to investigate the problem. In March
2010, the expert committee met with a team from the HDRO of the UNDP. It stressed the
importance of using official statistics rather than unofficial, perhaps academic ones (UN
Statistical Commission 2011a). The HDRO office replied that it had held an extensive
series of consultations with a wide range of experts, and that the HDRO did not have a
mandate within the United Nations to collect primary data from countries, and therefore
relied extensively on the data series produced by international and regional organizations
with the relevant expertise and mandates in the given subject-matter areas (UN Statisti-
cal Commission 2011a, 4). However, the HDRO did not respond to the expert groups
offer to be available for further technical reviews or consultations. Consequently, the
United Nations Statistical Division (UNSD), the secretariat of the UNSC, allowed Brazil,
Morocco, and South Africa to present a joint report on their concerns.
The report from Brazil, Morocco, and South Africa in December 2010 expressed their
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concerns about the choice of indicators and their methodology, focusing in particular on a
lack of consultation with the UNSC and the methodology and data sources used in a new
Multi-dimensional Poverty Index developed at Oxford University (UN Statistical Com-
mission 2011b, 2). The report noted that criticisms of the HDI had been discussed since
2000 and generated two expert group committees to discuss it and that similar issues had
been debated concerning discrepancies between national data and the data used by inter-
national agencies for the Millennium Development Goals (UN Statistical Commission
2011b, 24). The report was concerned about a lack of transparency in how data was col-
lected and used, the use of imputations and estimations for countries when no data is
available, and the failure to use official country data or the misuse of this data (UN Statis-
tical Commission 2011b, 6).
This report fostered an intense debate at the 2011 meeting, which I attended, as
41 delegations spent over 3 hours of their brief, four-day meeting arguing about the 2010
HDR and its indicators. While some countries supported it, most complained. They
focused on its use of non-official statistics, the HDRO failure to consult with the UNSC
and national statistical offices, discrepancies between national and international data, and
the use of data from a non-official source a study of education by the US-based academ-
ics. At the 2011 meeting, many national delegations objected to a lack of consultation in
decisions by the HDRO not to use nationally supplied data; some were concerned about
the reports disparaging comments about the quality of their data, including the refusal to
rank a country at all; given its poor data. They complained that this undermined their
credibility at home. Cape Verde noted that discrepancies in data, especially about health
and education, make national data look less credible and create problems since aid is
attached to rankings. Samoa complained that seven countries in the Pacific were excluded
for lack of data, which is unfortunate since it provides misleading information to states
and development partners. Caricom, representing the Caribbean countries, noted that six
countries in the region were also not included in the report because of data inadequacy.
Several countries referred to the importance of following the fundamental principles of
statistics and placing greater reliance on national statistical offices. Developed countries
such as France, Germany, the UK, the USA, and Australia expressed concerns about a
lack of consultation and the use of non-official data. Canada said it recognized legitimate
concerns about the availability of data and its quality, but noted that the selection of indi-
cators is part of policy decisions that are beyond the concerns of statisticians. Germany
noted the need to proceed with utmost caution on the use of composite indicators.
Some countries suggested that the HDRO report and index should be withdrawn, while
The Journal of Legal Pluralism and Unofficial Law 115

others suggested that they should issue a statement of deep regret about the situation and
ask for a response from the HDRO.
The head of the UNSD summarized the debate by saying that the UNSD would medi-
ate between agencies, that it expresses deep regret that the UNDP (the parent organization
for the HDRO) did not consult with the statistical community before issuing the HDI on
new indicators and the use of non-official data, and that it emphasizes the importance of
the fundamental principles of statistics. He also stated that the UNSC regrets that some
countries were not covered because of lack of data. It is, he concluded, the prerogative of
the UNDP to pick indicators, but the quality of the data is a matter for the UNSC.
The HDRO responded that on some issues, only non-official compilations existed; for
example, UNESCO did not produce data on adult mean years of schooling, a component
of the revised HDI, but used estimates from a UNESCO database by a university research
team whose work was first published in 1993 and has been validated by extensive aca-
demic discussion (United Nations Development Programme 2010, 6). Moreover, the
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HDRO pointed out that it is not mandated to consult national data. It did, however, offer
to improve consultation procedures. An HDRO representative told me that although they
could use only international data, any country can submit its data to the World Bank or
other international agency and the HDRO can use it. He commented that his office has
20 people who work 1215 hours a day to prepare the report and index, and are very dedi-
cated. He also noted that not all countries have strong statistical capacity. Another UN
statistician told me that countries care a great deal about their HDI ranking because if it is
too low, they will not win foreign investment and if it is too high, they would not receive
aid. Clearly, the HDI matters a great deal to countries rich and poor. While some of the
debate concerns conceptual issues of indicator choice, the far more basic fights are about
who provides the data and whether it is reliable.
The various challenges to the 2010 HDI and other HDRO indicators were consid-
ered by the UNDP Executive Board in 2011. It welcomed the HDROs further efforts
to engage with the international statistical community on statistical matters and its
consultations with governments. It supported efforts to improve the quality and accu-
racy of the HDRs, while also preserving the Reports credibility and impartiality, and
without compromising its editorial independence (UNDP Executive Board 2011). The
HDRO was thus protected from serious political interference and left instead to take
what guidance it wished from expert statisticians, who were themselves understood as
persuasive through expertise and through embodying epistemic and statistical institu-
tional interests more than national political interests. As this example indicates, the
HDRO has considerable autonomy despite these political wrangles. It is striking that
actors on all sides of the debate invoked the ideas of professionalism, impartiality, sci-
entific standards, and transparent methods of the Fundamental Principles of Official Sta-
tistics (UNSC 1994).
At the next UNSC meeting in 2012, several delegations commented that consultation
had improved, although they still had complaints. Fourteen countries talked about the
HDI. Most thanked the HDRO for better consultation procedures. Some still complained
about a lack of transparency and the use of incorrect information. Iran objected to the
practice of equally weighting all three factors when not all countries view them as equally
important. Angola suggested that, given the high visibility of the report, it would be good
to have training programs to deal with the tensions around discrepancies between HDRO
and the national statistical data. Turkey reiterated the importance of using official national
data. Oman complained that the 2011 report used old data, which affected its ranking.
However, this debate underscored the importance of the index itself. The complaints
116 S.E. Merry

focused on its data, not the conception of the index, in general. Despite considerable
national complaining, the HDI survived essentially unchanged.
Thus, by the 2010s, the HDI was widely accepted and used by policy-makers and the
public. It had acquired, over its 20-year existence, a more or less settled quality. Although
there are still debates and critiques of its methods, its categories, its weighting system,
and its data, it has acquired some stability, as did the measure of GDP per capita over the
previous 50 years. Its underlying theoretical framework is unchanged. The promoters of
the HDI have resisted dramatic changes and survived challenges. Its creators attribute the
survival of the HDI to its sound methodology, its policy relevance and support by policy-
makers, and its acceptability. They highlight its conceptual clarity, its reasonable level of
aggregation, its use of universal criteria amenable to intercountry comparisons, and its
use of standardized international data legitimized through official processes (Fukuda-
Parr, Raworth, and Kumar 2003, 184).
As this example indicates, the development of a settled indicator is a political and
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social process that involves networks of elite scholars, the support of powerful institu-
tions, persuasive new theoretical perspectives suited to current conditions, and the crea-
tion of an attractive, well-packaged and labeled, and easily grasped measurement device.
It takes the collaboration of particular individuals, such as Haq and Sen, at a particular
moment historically. It takes place over a long period of time, often decades. The result is
a piece of information that claims truth value and, therefore, facilitates decision-making
in terms of its normative standard and theoretical framework. This is clearly a social as
well as a technological process.

Changing media coverage over time


Media coverage of the HDI shows that at first it was the subject of debate in terms of its
elements and conception, but over time it has assumed the status as a fact rather than an
approach to knowledge. This example of the changing media representation of an indica-
tor shows how, over time, a successful indicator becomes taken for granted as a source of
knowledge.1 This survey used Lexis-Nexus for the New York Times and The Washington
Post, standard setting American newspapers with high circulations, and The Economist
weekly magazine, which has a large international circulation and an intellectual audience,
to examine coverage of the HDI during its first year. The HDI debuted in 1990 and the
search covered 19891991. Eight articles appeared in the three periodicals in 1990 and
1991. These articles tend to report on how the HDI measures development and the ratio-
nale motivating a different kind of measure. In the first article on 25 May 1990, Rupert
describes GNP as a crude measure and explains that the HDI measures peoples funda-
mental quality of life according to their life expectancy, literacy and ability to buy basic
goods (1990). Again, Crossette at The New York Times describes a new measure of
growth, the Human Development Index, based on a three-step calculation of deprivation
in three basic variables: life expectancy, literacy and real possible income (1990).
Deprivation also appears in an Economist article, which describes the HDI as measuring
the absence of deprivation (26 May 1990, 80). The use of deprivation highlights the
ideological contrast between the HDI and GNP, the UN and the World Bank. Indeed, the
Post describes the HDI as a corrective to traditional measurements of well-being
that rely on economic output per person. The article goes on to point out that the measure
shows distinctions between nations with similar amounts of wealth. In 1990, The
Economist reports that, even if the methodology is far from watertight: GNP is a flawed
measure of well-being (26 May 1990, 15). The article interprets the HDI as a shift in
The Journal of Legal Pluralism and Unofficial Law 117

favor of economic growth by human rights organizations: These days growth-sceptics


have changed their tune. . .The new report adopts a growth-plus perspective.
Another article in the same edition of the Economist describes recognizing that there
is more to life than GNP, but it also mentions that the subjective quality of the objects
measured in the HDI is a weakness. In 1991, the magazine refers to the simple but inge-
nious human development index designed to measure the relative attainments of nations
more subtly than annual ranking by GNP per head that the World Bank provides
(25 May 1991). However, it also criticizes the measure, saying that as measurement,
however, it leaves much to be desired, because the measuring instruments are faulty
where they are not lacking altogether (26 May 1990). The article goes on to critique
absent figures for the social achievements that are rightly said to be just as important for
the quality of life: political freedom, human rights, individual self-respect (26 May
1990). Nevertheless, the news coverage in 1991 notes that the measure is useful: The
UNDPs figures are meant for use, to show governments which policies work best (25
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May 1991). Thus, during its first years, coverage of the HDI focused on the substance of
the measure and the way it redefines the meaning of development. Even at this period,
however, two articles used the HDI simply as evidence (Silk 1990; Riding 1991).
Coverage increased over time. In 2004, the HDI was mentioned 83 times by the wires
and newspapers, according to Lexis-Nexus, and in 2009, this reference doubled to
161 times. A careful examination of the number of distinct news stories in the papers and
wires showed 27 unique articles printed in 28 different newspapers in 2004 and 29 unique
articles printed in 33 different newspapers in 2009. Moreover, compared to the coverage
of the early 1990s, by this time, the HDI was regarded as accepted fact and was used pri-
marily as evidence. About 85% of the references to HDI in 2004 and 2009 used its rank-
ings as facts about a country. Only one discussed the HDI itself. Some mentioned its
uses: for example, in 2004, the HDI was used to determine the royalty rate for countries
importing the pharmaceuticals (Fikes 2004; Orange 2004). About half did not define the
HDI at all (42%), while others defined it quite broadly. Accuracy of definitions increased
over this 5-year period. Thus, the press used the HDI increasingly accurately as it also
became more accepted. None of the reports in 2004 or 2009 represented the HDI in a neg-
ative light or as controversial in any regard, in contrast to coverage of the brand new indi-
cator in 1991. For example, in 1992, a chart entitled Little adjustments make big
differences was accompanied by the caption that read in part the United Nations
Human Development Index is a controversial standard of living measure that combines
gross domestic product the goods and services a nation produces within its borders
with other indicators of well-being (Nasar 1992). By contrast, in 2009, an article in the
Los Angeles Times describes the HDI as a comprehensive measurement of quality of
life (Dixon 2009).
The acceptance of the HDI as a form of knowledge is evident in reporters and opinion
writers use of the HDI ranking as a shorthand description for a country. Using the rank-
ings in this way positions the HDI as a form of transparent and taken-for-granted form of
knowledge. In the following instances, what the HDI communicates is made even more
part of a shared public consciousness because the reporters do not even define the compos-
ite: Development statistics paint a picture of slow progress. A 2003 UN report said
Cambodia is still ranked 130 of 173 countries on the Human Development Index (Frankel
2004), Pakistans low ranking on the Human Development Index 141 out of more than
180 countries (DeYoung 2009) or, today, the Human Development Index ranks it [the
Czech Republic] above Hungary, Poland and Slovakia (Maleske and Swanton 2009).
The rankings are offered as unproblematic representations of everyday life in remote
118 S.E. Merry

places confronting difficult social problems. Similarly, Nossiters article Fragile Nation
in Disarray Holds Few Hopes for Vote in the New York Times asserts that, By some
measures the military consumes 25 percent of the budget in Guinea-Bissau, a country that
ranks ninth from the bottom in the United Nations Human Development Index (Nossiter
2009a). The HDI enables Nossiter to provide readers with an understanding of everyday
life in Guinea-Bissau while also highlighting the governments role in that dysfunction.
Foster uses the HDI to explore political and economic instability:

Haiti is one of the worlds most unstable and poorest countries. It ranks 150th of 175
countries in the United Nations Human Development Index. Anyone trying to keep the peace
and build a stable democracy in Haiti faces long odds.

Thus, the HDI provides a clear and uncomplicated representation of the country at the
scale of everyday life.
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Reports that engage the HDI as an object of reporting do not dissect its accuracy or
objectivity but compare it to the measure it replaced. For example, in the 2009 Boston
Globe editorial May the GDP R.I.P. Loth argues that Enhancing the GDP so that it
measures humanitys well-being wont magically deliver health and happiness, of course.
But its a start (2009). In a similar fashion, an editorial in the Providence Journal - Bulle-
tin suggests that defining success using the HDI would create a more ethical world than
the GDP because it would force companies to operate in ways that support human life
and ecology (Rysavy 2009). These uses of the HDI demonstrate the extent to which indi-
cators are accepted in popular discourse as a form of evidence and a foundation for deci-
sion-making.
To assess media representations and, by implication, public consciousness about the
HDI, Jessica Shimmin surveyed five major US newspapers from 2004 to 2009. They
referred to the HDI relatively rarely, mostly to describe a developing countrys poverty or
backwardness (seven references in 2004, five in 2009). For example, Anne Carlin of the
Bank Information Center writes that, just about everyone wants progress in Afghanistan,
a country that ranks near the bottom of every indicator on the United Nations Human
Development Index (Carlin 2004). Chads ranking, 165 of 173, confirms that there is
no dearth of need in that country (Sengupta 2004a). The HDI shows intensifying poverty
in sub-Saharan Africa over time as well (Sengupta 2004b). Most articles use the index to
show a relationship between human development and immigration or religiosity (Porter
2004). In 2009, reporters also use the HDI to draw connections between governance and
the quality of life in a country. For example, in 2009, Karen DeYoung reports that on a
trip to Pakistan, Secretary of State Clinton,

contrasted the opulent conference room where they had gathered with Pakistans low ranking
on the Human Development Index 141 out of more than 180 countries and suggested that
the widespread failure to pay taxes here may be related to the countrys economic problems.
(2009)

Likewise, corruption (Pitman 2009) and bloated military spending (Nossiter 2009a)
account for Guinea-Bissaus low HDI ranking. Nigers population is destitute, malnour-
ished, and suffers high infant and maternal mortality despite its wealth from uranium
(Nossiter 2009b). Thus, the HDI increasingly is presented as a fact about a country, some-
times explained by politics or corruption. The underlying methodology or composition of
the HDI is not discussed.2
The Journal of Legal Pluralism and Unofficial Law 119

One of the most surprising uses of the HDI appeared in Morocco: A safe, exotic
vacation that appeared in the Philadelphia Daily News. In this article, author Michael
Hinkelman describes traveling in Morocco and highlighted tourist destinations. Toward
the end of the article he writes:

Almost half of Moroccos 34 million people are under age 21 and nearly one in four are illit-
erate. Last year, Morocco ranked 127 out of 179 countries in the United Nations Human
Development Index, which measures literacy, education, and life expectancy. (Hinkelman
2009)

In this use, the HDI provides evidence of the countrys exoticism and traditional way
of life in contrast to more developed, modern Arab locations like Dubai, United Arab
Emirates. The migration of the HDI from the world of international finance and politics
to the tourism pages suggests that the indicator is achieving broad popular acceptance in
ways that impact individuals interpretation of the world and their decisions therein.
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Finally, both the 2004 and the 2009 data-sets include articles in which scientists or
business people use the HDI to create new knowledge or initiatives. In 2004, pharmaceu-
tical companies including Merk use the HDI to identify poor countries that would benefit
from reduced cost medicines (Fikes 2004). That same year, the Canadian legislature
moved to allow generic drug manufacturers to produce patented medicines for distribu-
tion in poor countries. The HDI was used to tabulate the appropriate royalty rate in
importing countries (Orange 2004). In 2009, the scientists used the HDI to demonstrate
that fertility rates and prosperity are not inversely related. This discovery has significant
implications for public policies including social security and taxes (Stein 2009).
In sum, the HDI seems to be orienting people to thinking about the relationship
between national wealth and quality of life, framed as a relationship of responsibility
between government and citizens. However, its coverage is largely restricted to the top
end of the media market and more internationally focused publications. While it is pre-
sented to the public as an unquestioned factual way of describing the world, much of the
public does not hear about it.
The Economist has a more realistic grasp on indicators than more mainstream newspa-
pers like The New York Times or The Washington Post. However, they use the knowledge
similarly. None of these sources seriously investigates the methodology and epistemology
of the indices. They all use the indicators as a totalizing shorthand. Each periodical uses
indicators to explore or describe other countries, and most often third world or undevel-
oped countries. References to first world countries either describe surprising results or
define the criteria of leadership. Although proportionately indicators do not dominate
coverage in newspapers, when they are used, they are authoritative and uncontroversial.
Thus, they contribute to creating a general consciousness of the relative well-being of
countries around the world without critical attention to the limitations of the data or the
narrowness of the measurements.

Conclusions
This analysis of the way new theories harden into settled normative principles shows the
importance of viewing law in the making, of seeing its shifting power and meaning as a
way of understanding global legal pluralism. The concept of global legal pluralism asserts
that there are multiple legal spheres that intersect and express distinct normative stand-
ards (Berman 2012). Like other analyses of legal pluralism, global legal pluralism
120 S.E. Merry

emphasizes differences in the way legal domains exercise power and authority, their links
to each other, and the various levels of moral and social support that they enjoy.
The analysis of global legal pluralism requires attention to time: to the development of
new normative regimes and legal institutions. This includes tribunals that endeavor to pro-
vide justice by prosecuting criminally those who have violated major human rights princi-
ples, such as the International Criminal Court or the special courts created for Rwanda and
Yugoslavia. Although these are new institutions, each incorporates laws, procedures, and
practices from various previously existing national and local systems of law. These institu-
tions contribute to the creation of a new legal order, but they are constrained in their
authority and practice by the system of sovereignty that underlies all transnational endeav-
ors. They act to hold leaders accountable and to create histories of periods of conflict and
violence, but within the constraints of sovereignty and a lack of independent police power
(see Teitel 2000; Wilson 2000, 2001, 2005; Hagan and Levi 2005).
The global legal pluralist model attends to both social interactions and to differences
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in the power of various legal regimes. Although it does not address questions of meaning
and consciousness, it assumes that each legal regime bears with it a set of ideas about jus-
tice, rights, and process. Where it is portrayed in a static framework without sufficient
attention to the interactions among systems and the way they are arranged in terms of rel-
ative power or change over time, the model fails to describe the nature of international
legal processes adequately. However, a sociologically and culturally sophisticated version
of global legal pluralism that incorporates a temporal dimension promises to provide an
effective analytic framework for understanding international law. It shows how forms of
knowledge about the world develop slowly, gradually gaining authority and contributing
to the forces that induce compliance with international soft law.

Funding
This research was generously supported by the National Science Foundation Law and Social Scien-
ces Program and Science, Technology, and Society Program [grant number #SES-0921368].

Notes
1. I am grateful to Jessica Shimmin for her excellent work on this media summary and the analysis
presented here.
2. The number of countries measured changes over time depending on the number for which ade-
quate statistical information is available.

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