Rebalancing power and culture? The case of alternative dispute resolution

Introduction Modern political systems and institutions have in recent centuries gained increased governmental purchase over both individual subjects and collective lived experience. The growth and spread of formal institutions, most notably the state, sovereignty and rule of law, have been central to this development. By subjugating, bypassing, standing above, or aggregating and consolidating both the regulatory forces and ways of being that operate through guilds, communes, clans, tribes, religious communities and so on, the institutions of state, sovereignty and rule of law have facilitated the subordination and regulation of what can, for the sake of convenience, be termed (local) ‘cultures’. In place of the everyday indigenous and local regulation of social life, the emergence of sovereignty and rule of law in European history, as well as the export of these political and legal forms through colonialism, development and globalisation, facilitate the individual’s subjection to often-distant and abstract entities and processes alongside the transfer of authority to the quasi-transcendental authority of sovereignty and state. These processes are imbricated with wider political developments. The nineteenth-century emergence of legal positivism, for instance, was bound up with both the consolidation of sovereignty within European states and the differential allocation of sovereignty on a global scale through processes that facilitated legal imperialism. Although political and legal formalism have enjoyed considerable success in recent centuries, the rise of formal systems in politics and law from the local to the global has, as is perhaps to be expected, encountered resistance and limits. The increasing pressure for conventional approaches to law to respond to the cultural claims of those to whom it is applied - along with the rise of legal pluralism - are indicative of this phenomenon. Indeed, in the early twenty-first century there appears to be less confidence in the capacity and reach of rational and secular means for governing social life and a dawning recognition that the universal ideals, categories and injunctions of modern formal politics have less purchase than may have been anticipated by modernisers. This may be because such formal and rational forces tend to belong to the realm of imagination rather than lived experience. As Partha Chatterjee points out, people can only imagine themselves in the empty, homogenous and civic space of the nation; they do not live there