Transnational legal orders are an important feature of the contemporary global order, but they are challenging to study since they take many different forms, change over time, and consist of both formal and informal legal mechanisms. They lack the centralized political and legal systems of nation states, which are more capable of exerting formal control. Focusing on the processes, practices, and ideologies of transnational legal orders, as the chapters in this volume do, provides a valuable way to understand the way such orders develop and function. The chapters analyze the dynamics of creation, transformation, and demise of these forms of social organization through the in-depth analysis of individual TLOs engaged in controlling criminal behavior. Taken together, these chapters provide a rich understanding of this important and complex phenomenon.

Sex trafficking is commonly represented by the image of a young girl, kidnapped and sold from hand to hand until she ends up in a brothel in a large city, or sold by impoverished parents to a criminal network. She disappears into a world of sex work where she services thirty men a night. Such stories have elicited an active rescue network, invading brothels, rescuing women, sending them to shelters, and sometimes repatriating them to their countries of origin if they moved across national borders. But the situation is far more complicated. Social scientists studying trafficking report that there are many paths into brothels in addition to those depicted in popular literature on trafficking. Many women who go into prostitution are seeking a better life or an escape from an intolerable one. Many are married to abusive husbands, or face starvation unless they migrate away from their community. Some go for the adventure and the money they can earn.

Despite this complexity, many of the activists in the contemporary anti-trafficking movement, which include NGOs, journalists, faith-based groups, radical feminists, liberal feminists, and humanitarians more generally, tell a simpler story, one that recycles the classic images of imperial-era paternalism. For example, Nicholas Kristof, the New York Times Pulitzer prize-winning correspondent who has been increasingly interested in covering sex trafficking in Asia over the past decade, writes newspaper columns in which he characterizes sex trafficking as a brutality that is largely the lot of the developing world, and from which it must be “saved.” His writings focus on the vulnerable victimhood of the Third World Prostitute.

Studying law globally is both necessary to understanding the arc of law and justice in the twenty-first century as well as a challenge to explore how law manifests itself across cultures, institutional arrangements, and economic contexts. While legal formalism still dominates the doctrinal study of law, the emergence of legal realism in the first quarter of the twentieth century opened up the study of law to a wider range of approaches, including those of social science. Today there is a healthy debate over the different approaches and meanings of legal realism, or what is now described as New Legal Realism (NLR). However, there is little doubt that our understanding of law in all its dimensions has been enhanced by the multidisciplinary contributions of social scientists and lawyers who have explored not only the logic of the law but also the multiple ways in which law manifests itself in society, whether local or global.

For a new legal realism, the understanding of law is rooted not only in an empirical knowledge of how law works in context but also in drawing attention to the relationship between the use of law and other ways of understanding and studying law, whether doctrinal or jurisprudential. Concerned with ensuring an open yet reflexive approach to the study of law, a new legal realism embraces a multidisciplinary approach yet remains concerned with ensuring a careful translation between law and empirical research. It is this concern that makes studying law globally such a challenge as well as an opportunity to understand the role law might play in achieving the goals of justice and stability sought by communities across the globe.

In order to think about what a new legal realist approach to studying law globally might help us to do, we must first reflect on what we understand new legal realism to be. Confronting this question, our colleague Alexandra Huneeus has suggested three possible ways of understanding what new legal realism might mean in the academy today, especially when we try to think of new legal realism as an approach to the study of law that is distinct from regular social science scholarship that focuses on understanding how law works in society.

How does ratifying a human rights convention affect a state's human rights compliance? This critically important question has inspired considerable scholarship in the past decade, some of it using sophisticated statistical techniques and a nuanced political analysis. Although the earliest work, by Oona Hathaway (2002), indicated that ratification had little impact on compliance based on a large, quantitative study, Beth Simmons's more recent quantitative work shows that there are improvements in compliance in certain kinds of states, based in part on the role of domestic actors (2009). It is, of course, very hard to answer this question, since state behavior depends on a wide variety of considerations, interests, and actors with their own concerns and motivations. The promotion or neglect of human rights is determined by multiple factors, and ratification of a treaty and the effect of its associated monitoring process can only be one of many determinants of compliance.

However, from the perspective of New Legal Realism, this is a question that cannot be answered only in terms of the laws themselves or the formal procedures of monitoring through treaty body hearings (the meetings between country representatives and the small committee of experts charged with monitoring compliance with the treaty, called a treaty body). Instead, it requires an analysis of the content of expectations, the political and economic situation of the countries under investigation, and the willingness or resistance of a country to accept treaty obligations. I argue that ethnographic observation of hearings and the analysis of texts and contexts of committee hearings on states’ compliance with the terms of human rights treaties show that states differ in their enthusiasm for the various obligations in human rights treaties. These hearings offer clues to states’ willingness to comply with the treaties and areas of resistance. Compliance may well be related to the situated responses of countries to the particular demands of treaty body committees. This is an approach that can be productively applied to understanding forms of quantification and indicators more broadly (Merry 2016).

Introduction

Why another contribution to metrology?

There is something new about the use of quantitative knowledge for governing social life in the twenty-first century. In the words of Alain Desrosières in this volume, ‘the recent extension of the use of [such] indicators by New Public Management raises new questions and introduces a discontinuity in the longstanding traditional usage of statistics by governments, which dates back to the eighteenth century’.

From the United Nations’ efforts to improve the statistical capacity of resource-poor countries to local school districts’ penchant for measuring children's achievements in order to evaluate teachers, governance increasingly requires numerical data. Quantitative evidence is seen as essential for developing reasonable policy at local, national and international levels. The promise of evidence-based policy-making is that it is not only more objective and less prone to misuse, but also more transparent, more democratic, and more open to public debate than decisions taken by politicians and business leaders with reference to qualitative forms of knowing. Yet, the creation of these systems is rarely transparent or public. The rapid development and proliferation of more and more sophisticated measurement and quantification systems pose crucial questions about how knowledge produced by measurement and quantification influences the ways we set the norms we wish to follow, the technologies and instruments we regard as indispensable for organising collective life, and the role numeric representation should play in contemporary world orders (Rottenburg 2000; Espeland and Stevens 2008; Heintz 2010; Merry 2011).

The broad field of numeric representation – here used synonymously with quantification and with measurement as the translation of (assumed) realities into numbers – includes various elementary forms of counting and measuring along with several increasingly sophisticated forms of aggregating numbers. As a study in metrology, this book focuses on the making and use of indicators as one of these forms. The word ‘index’ is often used for aggregated indicators but also frequently synonymously with ‘indicator’ and hence refers to the same type of numeric representation. Indicators and indexes used in governance are a particular form of quantification that focuses primarily on finding an answer to policy questions such as: ‘Is our intervention making an impact? Is this the impact we want?’.