Prefigurative Law

Prefigurative politics are rooted in revolutionary thought, in particular anarchist thought and certain strands of Marxist and Black feminist thought. The (practical) idea is to organise the revolutionary movement in the image of the new society it wants to establish. In a somewhat wider sense it means: building today the institutions and practices we want to obtain after a radical societal transformation. Prefiguration is closely related to the precept of congruence of means and ends. For example, if we want a post-revolutionary society without hierarchies, then our revolutionary movement must also be non-hierarchical. It also means, vice versa, that from the concrete experimental practices and institutions adopted by radical protest movements and intentional communities we can learn about what kind of post-revolutionary society is desirable and possible – that is, about realistic utopias (Wright, 2005). While the idea and practices of prefiguration are much older, the concept as such was coined with references to the social movements of the 1960s and 1970s (Boggs, 1977). Ever since the Occupy movement in the 2010s, there has been a revival of the concept of prefiguration in radical protest movements and intentional communities (Graeber, 2004). More recently, prefigurative politics has become a subject of interest in social and political theory (Monticelli, 2024; Sörensen, 2023; Raekstad and Gradin, 2020). Yet, so far there has been no sustained attention for the relationship between prefiguration and the law.

This project explores the implications of prefigurative politics for law and vice versa. Can law be prefigurative or is prefigurative law an oxymoron? In other words, does law even have a role to play in a society without hierarchies and in the movements and communities aiming to prefigure it? Or, conversely, is effective prefiguration even possible without any law? How does the idea of prefiguration relate to the notion of non-reformist reform, which is currently popular in Law  Political Economy (LPE) discourse (Akbar, 2023)? Does prefigurative politics risk ending up being quietist, or privatising politics and law-making, when establishing prefigurative communities becomes an alternative lifestyle? What happens to fundamental rights of members and non-members of prefigurative movements and communities? What does prefiguration mean in the shadow of a still existing framework of (constitutional) law, where the state, private property, the police and prisons, and capital markets continue to be constituted and shaped by law? And, indeed, what do we even mean by law when we speak of prefiguration: are private rule-making, sanctions ,and dispute resolution adopted in autonomous communities always non-law? Such a narrow statist view would seem at odds with prevailing opinions on legal pluralism.  

Some of the practically most salient questions about legal prefiguration relate to constitutional law (how to constitute the new society and what does this mean for the here and now?), private law (should private ownership and legally enforceable contracts be abolished and, if so, how can this be prefigured?), and legal theory, in particular theories of legal pluralism - which rules, principles, and institutions, if any, should count as (acceptable) law after the revolution and in prefigurative communities? Therefore, a specific focus of this project on prefigurative law will be on:

1) Prefigurative constitutional law and its theory (especially on constituting radical democracy);

2) Prefigurative contract law and its theory (in particular on consent and binding force), and

3) Understandings of non-state and non-law underlying prefigurative practices and institutions. The research questions will be addressed not merely in the abstract but also in relation to existing practices in communities and movements.

In theory, prefiguration could refer to any possible future society deemed ideal by those who promote it. However, the term is usually used in relation to social movements of the radical left aiming at radical transformation towards a society characterised by freedom, equality, democracy, and ecological sustainability. In the same vein, but even more specifically, this project focuses in particular on intersectional prefiguration, that is on practices and institutions prefiguring a society without oppression, marginalisation, exploitation, and extraction through intersecting structures of capitalism, racism, sexism, homo- and transphobia, ableism, and ecological extractivism.