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Two decades after the Manifesto, it has become clear that private law injustices – that is, injustices done through private law – will not be overcome through directives and regulations. The ordinary legislative procedure will not bring social justice in European private law. What’s left, then, of private law justice? Where can we find inspiration for radical change to overcome oppression, marginalisation, and extraction through private rights? Perhaps some hope for a better future can be found in the practices and imagination of radical protest movements and counter-communities around the world. And maybe there we can also find inspiration for norms enabling radically horizontal relations, that is interpersonal relations and interactions between genuinely free equals – in other words, for a prefigurative private law.

Prefiguring the revolution

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 we want to establish. In a somewhat wider sense, it means building today the institutions and practices we want to obtain after a radical societal transformation tomorrow. Prefiguration is closely related to the anarchist precept of congruence of means and ends. For example, if we want a post-revolutionary society without hierarchies, then our revolutionary movement must be non-hierarchical too. Conversely, it also means that we can learn something important from the concrete experimental practices and institutions adopted by radical protest movements and intentional communities about what kinds of post-revolutionary societies are desirable and possible – that is, about realistic utopias.

Prefigurative law

While the idea and practices of prefiguration are much older, the concept was coined only with references to the social movements of the 1960s and 1970s. More recently, since the Occupy movement in the 2010s there has been a revival of the concept of prefiguration in radical protest movements and intentional communities. As a consequence, prefigurative politics has become a subject of interest also in social and political theory. Yet so far there has been hardly any sustained attention for the relationship between prefiguration and the law. Perhaps for good reason.

Puzzling questions immediately arise. Can law ever be prefigurative? Or is prefigurative law an oxymoron? Does law have any role to play in a society without hierarchies and in the movements and communities aiming to prefigure it? Conversely, is prefiguration even possible without law in any form? Doesn’t prefiguration without law amount to the privatisation of politics, with ethical consumption and similar practices as alternative lifestyles – the fulfilment of the neoliberal dream? And what does prefiguration mean in the shadow of a still existing framework of (constitutional) law, where the state, private property, the police, prisons, and capital markets (but also social security, public education and healthcare) continue to be constituted and shaped by law?

Indeed, what do we even mean by law when we speak of prefiguration? For example, are the consensual decision-making, dispute resolution, and reparation practices in autonomous communities always non-law? Such a narrowly statist view of law would seem at odds with contemporary understandings of law prevailing in legal pluralism. So, maybe we can learn something important from prefigurative practices and institutions about new, radically non-hierarchical, non-coercive and democratic understandings of legality.

Prefigurative private law

At first sight, the idea of a prefigurative private law might seem even more a contradiction in terms. Wouldn’t the future post-revolutionary society abolish private property and contract altogether, given their fatal complicity – past and present – in structural oppression, marginalisation, exploitation, extraction and colonisation? But much depends on what we mean by these private law categories – indeed what meaning we decide to give them.

A distinguishing feature of many self-consciously prefigurative movements and communities is their horizontal decision-making by consensus. This practice goes back to the (anarchist) idea of a postrevolutionary society without any hierarchies, with only voluntary associations, and where no one can be bound to anything against their will. On a non-statist view of contract, this would amount to a society constituted as a network of contracts.

Take the autonomous community that flourished until a few years ago for almost a decade at Notre-Dame-des-Landes in the wetlands near Nantes. It was baptised a zone à défendre (ZAD) by its inhabitants who had occupied the area in protest against government plans for a new international airport. It would be possible to understand the outcomes of the consensual decision-making à la ZAD – for example, about the use of land – as contracts, and to interpret them in accordance with positive French contract law. However, instead of such a domesticating reading the same practices could also be read – much more radically – as an attempt to prefigure a future better society. Indeed, a striking feature of the ZAD and similar prefigurative communities and movements is that they tend to take consensualism much more seriously than contract law theory and practice usually do. They reject any form of contract enforcement. In their dispute resolution practices their focus is on reparation for harm done, not loss of profit. And at their ‘non-markets’, produce is offered à prix libre. These practices prefigure a contract law fundamentally different from ours today as it usually understood – not least by contract law scholars. Such a prefigurative reading could destabilise conventional ‘positivist’ understandings of ‘contract’ and ‘law’. Such a reading would definitely not fit with the needs of a capitalist economy, but it might work just fine in building a horizontal society.

Another inspiring instance of prefigurative private law is PARK(ing) Day, where members of the public buy a parking ticket and then use the parking space in all sorts of creative ways except for parking a car (picnic, theatre, bike repair, yoga class, barbecue). Started in San Francisco in 2005, PARK(ing) Day has grown into a worldwide urban event. Crucially, as the initiators point out, they explicitly rely on the legality of the practice. In other words, this world-wide practice of ‘pop-up parks’, ‘to take control by repurposing or redirecting what tickets do’, allows people to imagine and practice new understandings of property (in the common law reading) or contract and possession (in the civil law tradition) and of legality more generally.

Occupy private law

Such playfully subversive exercises of private rights allow us to imagine the private law of a better, more just society by acting as if that society had already come about. They remind us of the fact that it not for those in power (including doctrinal legal scholars with interpretative authority) to decide what private law is, let alone what it should be. In spite of what is often claimed by private law theorists, contract, property, and private law in general, have no essential characteristic or animating principle. The meanings and roles of private law are eminently contingent. Private law is not a matter of metaphysics but of radical democracy. A new understanding of private law can be built from the bottom up and from the margins (maybe together with allies). Perhaps the time has come to occupy private law. Rather than to abandon private law as hopelessly complicit in various forms of domination, why not occupy it and make it work for all those who are currently oppressed and marginalised through contractual or property rights, corporate legal personhood, or other core institutions of private law?

The whiteness of prefiguration

The idea of occupying private law may sound naïve, especially in light of one troubling characteristic of many self-proclaimed prefigurative movements, communities and theories: their predominant whiteness. What is the message here? That the better society we’re striving for is all-white, a ‘white utopia’? As Amandine Gay, a French Afro-feminist academic and filmmaker, points out with reference to the ZAD: ‘one will think twice before joining a utopia that has not been conceived for us – and with us’. Indeed, had the ZAD been founded by 300 Blacks or Arabs then no doubt the government would have sent in the army on the very first day. In other words, the survival of the ZAD for nearly a decade is probably best understood as a salient instance of white privilege. Similar critique has been addressed also to PARK(ing) Day. The possibility to experiment playfully with the boundaries of legality is a privilege that not everyone enjoys. What may be joyful for some is very risky for others, notably for people belonging to minoritised and vulnerabilised groups. This raises the question: in the name of which revolution should private law be occupied?

Intersectional revolution

Intersectional prefiguration means prefiguring the intersectional revolution. The premise of the intersectional revolution is that current forms of oppression and marginalisation are produced and reproduced, enabled and sustained, by the intersecting structures of capitalism, racism, sexism, heteronormativity, ablism, classism, and extractivism. On the further premise that no one is free unless everyone is free, the intersectional revolution aims to overthrow these intersecting structures of oppression and marginalisation. Intersectional revolution and intersectional prefiguration are inspired by the groundbreaking Black feminist ideas of ‘interlocking systems of oppression’ and ‘intersectionality’, abolitionist thought and organisation, and practices of queer communities.

A further premise of the intersectional revolution is that it will be non-violent. This follows directly from its aim to dismantle the inherently violent structures of oppression and marginalisation. Similarly, intersectional prefiguration is non-violent too: it shows today what better world without oppression, marginalisation, extraction or other forms of violence could exist tomorrow. Ultimately, it relies on the unforced force of better arguments and inspiring examples.

A third premise of intersectional prefiguration is the epistemic superiority of communities of oppressed and marginalised people struggling for liberation. Counter-communities know better what radical changes are needed and how these can and should be achieved. Their experimental practices and institutions are particularly important in showing the way to us all. This is the exact opposite of Leninist-Marxist vanguardism. The oppressed and marginalised do not need leaders to understand the injustice of their predicament or the best way to change it. On the contrary, revolutionary hope can be found in the practices and institutions of the counter-communities and movements of those currently kept at the margins of society.

Bottom-up prefiguration, not top-down reform

This is why prefiguration – or at least intersectional prefiguration – is categorically distinct from reform. Even ‘radical’ or ‘transformative’ reform cannot prefigure the intersectional revolution. This is not – in some consequentialist vein – about whether reform can deliver certain good outcomes, say, in terms of prosperity. It is a matter of means and ends and the necessary close link between the two. It is about centring the experiences, agency and imagination of those who are currently marginalised and oppressed. Audre Lorde’s famous saying that ‘the master’s tools will never dismantle the master’s house’ perfectly captures the justified revolutionary scepsis of the subalternised towards reformism. The only exception is ‘non-reformist reform’, which aims to undermine the socioeconomic-political system and to mobilise a revolutionary coalition, and insofar is quite close to prefiguration.

It is for this reason that the ‘ordinary legislative procedure’ (OLP) (Art 294 TFEU) will not achieve social justice in private law – at least not if we understand social justice as overcoming intersectional oppression. EU directives and regulations are not where structural change in terms of social justice and radical private law democracy can realistically be expected. It is not the site for revolutionary hope. There is no reason to believe, for example, that people most at risk of digital exploitation and marginalisation will have a central voice and decision-making power on a Digital Fairness Act, the possible next step after the Digital Fairness Fitness Check. Stakeholder consultation is not democratic empowerment.

The intersectional revolution cannot happen top down, only bottom up. The central idea is that radical, transformative change occurs from the margins and interstitially: the new society is built from within the cracks of the old one. For private law, this means to trace cracks in the dominant understandings of the existing central private law categories like ‘contract’, ‘property’ and ‘family’ and to imagine and perform radically horizontal meanings of these core categories. In this way, prefigurative private law practices can destabilise dominant and entrenched understandings of private law and show what they could mean in a more just and democratic society.

Art by Tomoko Nagao
Il quarto stato with motta, campari, firelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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