A distinguishing feature of contemporary social (including legal and economic) challenges is that they are not only ever-more ‘open, complex… and networked’, but also more ‘dynamic’ (Dorst 2015). As such they can only be understood, let alone addressed, via scholarly and policy mindsets that prompt and facilitate movement between between the past, present and future. It is against this backdrop that I have begun to consider whether the idea of ‘prefiguration’—acting as if a desired future is already present—might help us to understand how people relate to law in economic life.
To act prefiguratively is to ‘perform present-day life in the terms that are wished-for’, both ‘to experience’ a ‘better’ present, and ‘to advance’ future ‘change’ (Cooper 2017). Research from politics (Maeckelbergh 2011) and, more recently, law (Cooper 2018, Afshary 2019) tells us that prefigurative thinking and action opens up critical, optimistic spaces in which actual presents can be better and potential futures can become more probable.
In this post I consider the possibility that the prefiguration lens might be extended to the ‘economic life of law’—that is, to understanding the actual and potential roles of law in facilitating, preventing, regulating and generating the production, distribution, exchange and consumption of goods and services. Specifically, I propose that a prefiguration lens might help researchers to conceptualise how people think and act in relation to econo-legal futures; and I suggest that this lens might be enriched conceptually, by drawing on insights from innovation economics and social design, empirically, through a close qualitative analysis of island-wide economic life in divided Cyprus, and methodologically, through material prefigurative fieldwork strategies.
Sociologically-informed approaches to law foreground the fundamentally social, mutually-constitutive nature of all legal and economic life; and emphasise and embrace law’s deeper roles as a potential communal resource to support stable, productive, trusting social (including economic) relations (Perry-Kessaris 2015). While most such socio-legal scholarship is directed towards explaining the present and past, sociolegal studies of prefiguration are future-focused. Of particular relevance is Cooper’s (2017, 2018) work on conceptual prefiguration (approaching legal concepts ‘as if their meaning was one desired’) and law reform prefiguration (engaging with policy questions that are yet to be posed), both of which facilitate critical and optimistic ‘re-framing’ of ‘entrenched’ debates. But there is a need to develop an economic dimension to this work.
Orthodox economics implies that the question of how we construct econo-legal futures is misguided, since it contradicts the foundational neoclassical premise that states and their laws ought to leave markets to determine the present and the future. However, factors such as the 2008 financial crisis have forced the discipline to take seriously a range of heterodox approaches that emphasise experimentation and evidence-based practice (Banerjee and Duflo; Cottam; World Bank), are agnostic as to the relative merits of ‘the state’ and ‘the market’, and that are explicitly future-focused (Raworth; Mazzucatto) and can deepen socio-legal prefiguration.
Neither economic nor sociolegal approaches are well-attuned to understanding the specific shifts in processes and mindsets needed to work at the intersections of what is (actualities) and what might be (potentialities). That is the special expertise of designers who understand that negotiating the actual-potential requires thinking and action that is simultaneously practical (concrete, coherent, probable), critical (exposing and questioning empirical realities, and conceptual and normative frames) and imaginative (speculative, generative, future-focused); and who offer conceptual frameworks for communicating about it, and research strategies (such as prototyping, see below) to help make it ‘possible and probable’ (Manzini).
What examples exist of actors prefiguring econo-legal futures?
In Cyprus, the need to identify, choose between, and work towards possible econo-legal futures is existential. Divisions between Greek Cypriots and Turkish Cypriots grew under the British in the 1950s, deepened around independence, and exploded in 1974 when an attempted Greek-backed coup was followed by military occupation of the north by Turkey, mass displacement of civilians, and a 30-year suspension of island-wide interactions. Hopes of reconciliation were raised in 2003 when the north opened crossing points, but UN-sponsored talks have since failed. The Republic of Cyprus joined the EU in 2004 as a whole island, but with the acquis communautaire suspended in the north over which the government ‘does not exercise effective control’. Today the island is in an in-between state—neither at war not at peace, neither whole nor fully split—which constrains economic life at every level. There are micro-level divisions such as on Ermou Street, erstwhile commercial centre of the capital city Nicosia, bisected and eviscerated by the UN-monitored Buffer Zone. At island level trade and investment are limited by the combined effects of EU and Republic of Cyprus law, and by low levels of information and trust, to a small range and volume of highly regulated transactions (Hatay et al.). And economic actors in the north are excluded from international systems of finance, transport and communications and, therefore, trade and investment, because the self-declared Turkish Republic of Northern Cyprus (TRNC) is recognised only by Turkey, through which every econo-legal engagement with the rest of the world must be filtered. Each side officially views the other as more or less ‘illegal’, and in public discourse island-wide economic life lies somewhere between unimaginable and undesirable.
But there have always been Cypriots who have asked ‘what if’ the island were not divided; and those who have gone further, acting prefiguratively, ‘as if’ there were an integrated island-wide economy. Civil society actors have engaged in ‘bi-communal’ initiatives, and over the last decade more have been willing to address economic aspects division. The chambers of commerce in the north and south have been key players in the formal softening of the north-south divide, and a small but growing number of private entrepreneurs are overcoming uncertainty and interpersonal and institutional distrust to engage in island-wide economic life. Public authorities including electricity and water service providers have pooled resources to respond both to crises and to everyday needs. In making these contentious, sometimes dangerous, prefigurative moves they have made island-wide economic life more possible and probable.
Can material culture (artefacts and sites, practices and knowledge) enable us to research ‘prefiguratively’—to think and act ‘as if’ the phenomena we wish to research, and an environment conducive to that research, already exist; and what are the risks and rewards?
Empirical research into possible futures is always difficult because it relies in part on the imagination of researchers and informants, and all the more so when the possible futures are contentious. For example, researching Cypriot island-wide life is difficult both because it is rare and because it is deeply sensitive (Papadakis et al. 2006). Island-wide economic life in particular is seen by some to imply a degree of treachery and/or profiting from the misery of refugees. All of this makes it difficult to find an appropriate language—vocabulary, grammar, narrative, tone—for discussing the topic. Since 2014, I have been developing two prefigurative fieldwork strategies to address these constraints.
Inspired by the insight that museums in Cyprus ‘use inclusion and exclusion in their collections, exhibitions, objects and interpretive material as a way of selectively constructive collective memories’ (Stylianou-Lambert and Bounia), I have searched for economic and legal content (artefacts, interpretive materials) in around 25 museums across the island. Can such content produce useful insights about the construction of futures as well as pasts?
Inspired by social designers’ use of prototypes to focus minds at the intersections between the ‘actual’ and the ‘potential’ (Julier and Kimbell 2016), I have developed a model-making strategy: Artefacts from Cypriot museums (e.g. 1900BCE terracotta figures) were selected to represent basic elements (actors, interactions, rationalities and systems) of econo-legal life, recreated in clay, and used to tell stories (to myself, with non-experts, with interviewees, via social media) about law and island-wide economic life in significant locations across the island (Perry-Kessaris 2017b). The aims were to develop a vocabulary for communicating about this controversial topic with diverse interlocutors; and be imaginative despite the sense of hopelessness that dominates the ‘Cyprus Problem’.
But how do these strategies relate to existing practices around material culture in Cyprus and elsewhere; and how can they be improved and applied elsewhere?
Could the idea of econo-legal prefiguration contribute to a researcher’s plans to prompt meaningful change (‘impact’)? For example, if prefiguration can help us to understand how people relate to law in economic life, then might it also help us to change those relationships? And what might be the risks? For example, does a prefigurative orientation privilege or erase values and interests of particular generational, socio-economic, cultural, gender or ethnic groupings?
Afshary (2019) Prefiguring the Revolution: the politics of law and lawyering in Egypt. PhD thesis. University of Kent.
Banerjee and Duflo (2010) Poor Economics
Cooper (2017) ‘Prefiguring the state’ 49:2 Antipode 335
Cooper (2018) ‘Acting as if law reform options were already on the table’. FLAG Blog. https://futureoflegalgender.kcl.ac.uk/2018/10/13/acting-as-if-other-law-reform-options-were-already-on-the-table/
Dorst (2015) Frame Innovation: create new thinking by design
Julier and Kimbell (2016) Co-producing social futures through design research.
Manzini (2015) Design, when everybody designs
Maeckelbergh (2011) ‘Doing is Believing: Prefiguration as Strategic Practice in the Alterglobalization Movement’ 10:1 Social Movement Studies 1–20
Mazzucato (2013) The Entrepreneurial State
Hatay, Mullen and Kalimerini (2008) Intra-Island Trade in Cyprus
Papadakis, Peristianis and Weltz. eds (2006) Divided Cyprus
Raworth (2017) Doughnut Economics
Stylianou-Lambert and Bounia (2016) The Political Museum
World Bank (2015) WDR 2015 Mind, Society and Behaviour