Margherita Pieraccini
We live in a time of multiple, intersecting crises: from the housing shortage to ecological collapse, from the cost-of-living crisis and energy insecurity to a deteriorating health and social care system. All these crises are not merely the result of technical failures but are deeply connected to historical, social and institutional power dynamics resting on and producing patterns of inequalities and social and environmental injustices. Change, unquestionably, is deeply needed.
But what role does law hold in this fraught landscape? Is law simply a part of the institutional structures re(producing) these crises, and as such must be broken and rejected all together in search for alternative, more sustainable governance structures? Or, at the opposite end of the spectrum, does the solution lies in pushing for incremental law reform? As history has taught us, both options have their challenges.
An emerging body of scholarship, to which my forthcoming JLS article, Reimagining Notions of Public Governances through the Commons: the Role and Boundaries of Prefigurative Legality (Vol 53, Issue 3,2026), contributes, explores a ‘third way’, that of prefigurative legality. Unlike approaches that either reject law altogether or advocate for law reform, prefigurative legality operates simultaneously as a form of legal imagination and action, working with existing legal forms and language to perform in the here and now a desired future.
The term was coined in a paper by Cohen and Morgan in 2023 to capture experiences in which the law has been used to anticipate and bring forth alternative social and political futures. Since then, the term has attracted considerable attention in the Anglophone socio-legal community. Prefigurative legality has been used by scholars to refer to a wide range of legal engagements and experimentations. Prefigurative legal actors include those who rewrite feminist and environmental judgements; social movements that mobilise the law to contest and subvert property relations transforming, albeit temporarily, access to and use of certain spaces. For some, prefigurative legal actors are even sovereign citizens. The list is non exhaustive. In my new paper ‘Reimagining public governance through the commons: prefigurative legality at play?’ I ask what this diversity of cases to which prefigurative legality has been attached to says about the analytical boundaries of the concept itself. My argument is that that further conceptual refinement is needed for prefigurative legality to become a helpful analytical tool. To make this point, I review two initiatives reimagining public governance in Italian urban environments, asking whether they can be understood as prefigurative legality. The two initiatives have been documented extensively in Italian scholarship on beni comuni (commons) as two very different models of commoning, that is approaches aimed at transforming the public governance of certain urban spaces in need of restoration, guided by an ethics of care and inclusivity. My paper uses this rich literature, complementing it with the analysis of primary sources, to ask which of these two models, if any, could be considered an example of prefigurative legality. In doing so, the paper is less interested in assessing the effectiveness or legitimacy of the models in their own terms, but more on reflecting on their differences to understand if they amount to prefigurative legality. The paper shows that it is not simple to clearly determine if these models fall inside or outside the boundaries of prefigurative legality. The answer depends on what we, as analysts, put the accent on as the determining feature(s) of prefigurative legality. Is it a matter of authority, of actors’ creativity, of the juridical forms chosen, of time? Or all of the above? And will our answers change depending on the methods we use to analyse these legal experiments? And, finally, how and to what extent these different features of prefigurative legality speak to existing strands of socio-legal scholarship?
In my view, initiating a collective dialogue on these questions is essential. Prefigurative legality holds productive potential but, to ensure it gains its own sit at the (already crowded) table of socio-legal concepts, it is essential to work together towards an identification of its core features.