1. Introduction
Radical movements and intentional communities engage in prefigurative practices. These practices aim to foreshadow a radically different, fundamentally more just society. Prefigurative practices provide hope for a better future by showing today what a juster society could look like tomorrow. Prefiguration is normatively appealing because it puts into practice the precept of congruence of means and ends. If we want our future society to be radically democratic and without any hierarchies, then our revolutionary movement should be fundamentally horizontal and consensual too. If we reject the structural violence of oppression and marginalisation, then our revolutionary practices should also be non-violent. And if the dismantlement of overlapping and mutually reinforcing structures of oppression and marginalisation is a core aim of the movement then intersectional justice should also be central to our practices towards transformative change.
While prefiguration has recently become a subject of interest in political theory, so far there has been little attention for the idea of prefigurative law practices. At first sight, this may be unsurprising. The idea of prefigurative law may seem a contradiction in terms. The law’s structural complicity in social oppression, marginalisation, and exploitation seems to disqualify it for any revolutionary role. Do we even need law after the revolution? The idea of prefigurative EU law may seem even more alienating. EU law is often portrayed – with some reason – as deeply entangled with capitalism (even essentially neoliberal), providing the constitution for a polity with thousands of racialised premature deaths at its external borders every year, and without any firm commitment to justice, equality, and democracy, especially in times of crisis, when it matters most. Surely, then, EU law practices cannot possibly foreshadow a radically different, more just society. And yet, that is what this article aims to argue. It sets out to demonstrate how EU law and its practices could be a part of prefigurative politics. In particular, it outlines how the European Commission’s recent announcement of a 28th legal regime, understood by it as a deregulatory sandbox, could be turned into a legal non-regime for a radically horizontal society without borders.
The article unfolds as follows. Section 2 situates the argument in the present context of structural EU injustices calling for radical change. Section 3 introduces the political idea and praxis of prefiguration. Section 4 examines whether law can ever be prefigurative. Section 5 explores salient practices of prefigurative legality. Section 6 argues that legal prefiguration must be intersectional. Section 7 discusses possible prefigurative EU law practices. Section 8 proposes a prefigurative 28th non-regime. And section 9 concludes by considering and rejecting the claim that dangerous times call for liberal entrenchment rather than transformative change.
2. EU injustices and revolution
The premises of this article are that the EU is structurally unjust, that EU law specifically is a crucial agent of EU injustice, and that the only realistic way to overcome the EU’s structural injustices is not reform (including Treaty reform) but radical structural change – a revolution.Footnote 1
A. EU injustices
Social injustice is structural injustice. A society whose basic structure is unjust is a structurally unjust society.Footnote 2 The EU is a structurally unjust society because its basic structure, in particular its constitutional framework (the treaties) and its main institutions, are not justifiable towards all those subjected to them.Footnote 3 EU law – primary and secondary – co-constitutes, reproduces, facilitates, and entrenches intersecting oppressive and marginalising societal structures of domination.Footnote 4 Thus, EU law is an important agent of social injustice.Footnote 5 This includes injustices done through EU law not only to Europeans but also to non-Europeans, both inside and outside Europe,Footnote 6 and especially at the EU’s external borders.Footnote 7 It includes, in particular, the way the EU has constituted its internal market.Footnote 8 And given that EU law operates as a system, domination through EU law is a form of systemic injustice.Footnote 9
Importantly, different vectors of social oppression and marginalisation (such as race, gender, class, and religion) intersect and mutually reinforce each other. Given EU law’s role as an enabler and facilitator of intersecting forms of oppression and marginalisation, EU law is an agent specifically of intersectional injustice. Intersectional injustice is a core problem of social injustice because persons belonging to groups at the intersection of various oppressive and marginalising structures are ‘at the bottom’ of society.Footnote 10 They are among the ones most vulnerabilised by the way European society is organised.Footnote 11 It is they who bear the social costs of having the current basic structure of European society, one that prominently includes EU law, which structurally benefits other groups, but not them.Footnote 12
B. EU revolution
This article does not presume that the EU is essentially unjust. EU law injustices, including the injustice of the EU’s very basic structure, are contingent.Footnote 13 Therefore, this article starts from the assumption that a structurally more just European political society is possible (whether or not it would be called ‘European Union’).
Yet, it is a premise of this article that EU reformism will not dismantle the existing structures of oppression and marginalisation. Past experience leaves little hope that directives and regulations, through the ordinary legislative procedure (Article 294 TFEU), or treaty reform, through the ordinary revision procedure (Article 48 TEU),Footnote 14 might become agents of intersectional justice.Footnote 15 Therefore, there is an urgent need to explore an alternative route towards a (European) society without the structural injustices of oppression and marginalisation through EU law. This route, I submit, is an EU revolution.
By revolution I mean a radical transformation of the basic structure of society, in particular of its current intersecting structures of oppression and marginalisation. As Rosa Luxemburg explains, the difference between reform and revolution is qualitative, not quantitative. It is ‘the transformation of simple quantitative modification into a new quality, or to speak more concretely, the passage of a historic period from one given form of society to another’.Footnote 16 Put in Kuhnian terms, this amounts to a socio-economic-political paradigm shift, where the old and the new world become incommensurable.Footnote 17 Or, in the words of Gayatri Chakravorty Spivak, revolution means ‘systemic change’.Footnote 18 Crucially, on this view revolution is not intrinsically violent. Indeed, for reasons of congruence of means and ends, central to this article and to be explained presently, the intersectional revolution as understood here will be radically democratic and non-violent. Insofar, this article is utopian. Whether that also makes it naïve remains to be seen (and will also be addressed further below).Footnote 19
By EU revolution specifically, I mean a radical transformation of the EU that goes beyond the reformism of ordinary legislative procedure and treaty reform. EU reformism lacks legitimacy because it structurally denies meaningful democratic agency to persons belonging to marginalised groups.Footnote 20 Perhaps most striking is the whiteness of the EU law making process and institutions.Footnote 21 The aim of EU revolution is to overcome the structural injustices of oppression and marginalisation through EU law by the (self-)empowerment of currently (intersectionally) marginalised and oppressed groups through forms of radical democracy.
3. Prefiguring the revolution
If we need a revolution – that is, a radical transformation of the basic structure of society – to overcome structural injustices, in particular intersectional injustice, then the practical question arises how a radically democratic non-violent revolution can come about. What to do today? One answer is: engage in prefigurative practices.
Prefigurative practices are rooted in revolutionary thought. The idea is to organise the revolutionary movement in the image of the new society we want to establish.Footnote 22 In a somewhat wider sense, it means building today the institutions and practices we want to obtain after a radical societal transformation tomorrow.Footnote 23 Or, still wider, – and frankly more domesticating, detached from social revolution – to perform life as wished for.Footnote 24 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 possibleFootnote 25 – that is, about realistic utopias.Footnote 26
Prefiguration has a long history in radical political thought and activism. Three waves can be distinguished. First, it is grounded historically in anarchist socialism. Anarchists like Errico Malatesta were committed to the idea of congruence of revolutionary means and ends.Footnote 27 In particular, they believed that a revolutionary movement aiming to overthrow the state should be internally organised in a non-hierarchical, horizontal way and should not aim to seize state power, not even temporarily.Footnote 28 Herein, they were diametrically opposed to Marxist communists who believed that the revolutionary proletariat should first seize state power before the state could gradually wither away. In the Communist Manifesto, Engels and Marx derided the anarchists as depoliticised utopians.Footnote 29 This issue was at the heart of the bitter dispute at the First International between anarchist socialists (surrounding Bakunin) and Marxist communists (led by Marx and Engels), which led to the expulsion of the former. It was also central to the controversy over the October Revolution, where Emma Goldman rejected Lenin’s vanguardism. And it has kept the radical left divided ever since. A second wave came with the various protest movements and alternative communities of the 1960s and 1970s. This was when Carl Boggs coined the term,Footnote 30 tying it strongly to revolutionary democracy, thus pitting it against the bureaucratic domination characteristic of both Marxist-Leninist authoritarianism and social-democratic reformism. More recently, since the alterglobalist movement in the 2000s and the indignados and Occupy movements in the 2010s, there has been a revival of the concept of prefiguration in radical protest movements – against neoliberal globalisation, climate change, and most recently against the genocide in Gaza – and in intentional communities.Footnote 31 As a consequence, prefigurative politics has become a subject of interest also in political theory.Footnote 32
Both in theory and in activist communities and movements two main types of arguments for prefigurative politics recur, that can be referred to as normative arguments (connected to political theory) and empirical arguments (grounded in social theory). The normative arguments offer reasons, in particular regarding the need for congruence between means and ends.Footnote 33 In the words of Emma Goldman (speaking against the turn the Russian revolution had taken): ‘It cannot be sufficiently emphasized that revolution is in vain unless inspired by its ultimate ideal. Revolutionary methods must be in tune with revolutionary aims. The means used to further the revolution must harmonize with its purposes. In short, the ethical values which the revolution is to establish in the new society must be initiated with the revolutionary activities of the so-called transitional period. The latter can serve as a real and dependable bridge to the better life only if built of the same material as the life to be achieved. Revolution is the mirror of the coming day; it is the child that is to be the Man of Tomorrow’.Footnote 34 This can be seen as a deontological rejection of consequentialism (no one should be instrumentalised for the aims of the revolution) or simply as a matter of moral consistency. The empirical arguments focus on facts, in particular the likely impossibility of a successful non-violent revolution overnight. People have to become revolutionaries first. And to be motivated they must first see and experience, even if only very localised, the possibility of a better society, one without hierarchy, capitalism, and racism. They must see and experience the realism of revolutionary utopias.Footnote 35 At the same time they must unlearn their capitalist, heteronormative, and racist habits. Not of course, through brainwashing but through the voluntary radically horizontal practices of these counter communities. From this point of view, the idea of an ideological blueprint to be implemented by a revolutionary vanguard after the revolution appears particularly misguided. Rather, the societal movement will have to find its way through experimentation within the cracks and at the margins of the existing society.Footnote 36 The focus is not on a revolutionary subject but on revolutionary practices, performed initially on a small scale, for example in counter-communities, and then picked up more widely in society, culminating in a paradigm shift. In sum, the empirical argument is that without prefiguration the revolution will never come.
However, from the beginning, prefiguration has also attracted severe criticism. Each of the waves of enthusiasm for prefigurative politics has led to corresponding waves of criticism along quite similar lines. And in each case the most severe criticism came from within the radical left.Footnote 37 Indeed, much of the polemic can be read as reiterations of the clash between anarchists and Marxists, although it cannot be fully reduced to this. Prefigurative politics have been portrayed as naïve (about political power, about consensus), ineffective (bringing no perceptible structural change), depoliticising (confusing politics with lifestyle), individualist (because of their commitment to strict voluntariness), self-referential or even narcissist (for their focus on the internal practices of their own small communities), quietist (because of their effective exodus from society, leaving existing oppressive structures intact), primitivist (because hospitals, banks, and smartphones are external to their practices), puritan (for their unwillingness to compromise), mystical (for their belief in the promise of a better world), and privileged (because people from lower classes or marginalised groups could never afford or risk it), among other criticisms. While some of these – partly overlapping – charges may ring true to a degree in some cases, they are largely contingent (with a strong contemporary focus on square occupations and encampments). They hardly disqualify prefigurative politics as such. At most, they caution movements and communities to be self-reflexive and self-critical when claiming their actions and practices to be prefigurative.
4. Post-revolutionary law or a post-legal society
So far, there has been little attention, in movements and among theorists, for legal prefiguration. This may not come as a surprise. Can law ever be prefigurative? Does law have any role to play in a society without hierarchies and in the movements and communities aiming to prefigure it? The very idea of prefigurative law might seem a contradiction in terms. Wouldn’t the future post-revolutionary society abolish the state and its laws altogether, given their fatal complicity – past and present – in structural oppression, marginalisation, exploitation, extraction and colonisation, and become a post-legal society?Footnote 38 Much depends on what we mean by law – indeed on the meaning we decide to give it.
A. The Pashukanist challenge
A prima facie formidable challenge to the notion of postrevolutionary law, and by implication, to prefigurative law, is posed by Evgeny Pashukanis’ Marxist theory of law.Footnote 39 Marx had argued that after the revolution, following a first phase where the proletariat takes over the state institutions (‘dictatorship of the proletariat’), a second, higher phase of communism would follow where ‘the narrow horizon of bourgeois law [can] be crossed in its entirety’.Footnote 40 Yet, the state and its laws would not be actively abolished. In the words of Friedrich Engels, they would simply ‘wither away’.Footnote 41 In his general theory of law, published after the Russian revolution,Footnote 42 Pashukanis explained why this would happen. He argued that the legal form as such, with its core elements of the legal subject and the legal relationship, corresponds to the form of the commodity exchange which is central to capitalist society. Therefore, with the overthrow of capitalism the material basis for markets based on exchange, formalised as contracts, would fall away, which would also make contract law become obsolete. Moreover, given that the contractual relationship is at the heart of the legal form as such (‘the general prototype of the legal form’),Footnote 43 the whole edifice of a legal system – that is all of private and public law – would lose its foundation. Therefore, Pashukanis claimed, after a successful Marxist revolution, there would no longer be any use for law as such, the (instrumentalist) ideas of ‘proletarian law’ and ‘socialist legality’ being contradictions in terms. The logical implication would be that there is also no room for prefigurative law. For the whole point of prefiguration is for it to foreshadow the postrevolutionary society.
Pashukanis explicitly addressed international law, which he considered nothing more than ‘the legal form of the struggle of the capitalist states among themselves for domination over the rest of the world’.Footnote 44 Of course, he could not have discussed EU law, but on the view that EU law is a hybrid or sui generis legal form, somewhere between national and international law, and certainly on the understanding that EU law is deeply complicit in capitalism (or even an essentially neoliberal project),Footnote 45 it is clear that after a Marxist European revolution EU law too would be expected to wither away. Indeed, in a recent article, Robert Knox, Eva Nanopoulos, and Andrew Woodhouse, advocating a Marxist approach to EU law, argue explicitly – in Pashukanist vein – that a Marxist approach ‘presupposes a break with capitalism and imperialism and, hence, with EU law as a social form’.Footnote 46 Note that the categorical break with EU law is presented – correctly, from a Pashukanist point of view – as a presupposition, not a conclusion, of a Marxist approach to EU law. Similarly, the rejection of prefigurative EU law would seem a presupposition of that same approach.
There are several responses to the Pashukanist categorical rejection of the very idea of postrevolutionary legality. The first one questions its economic reductionism (or economicism): can the entire concept of law plausibly be understood as nothing more than the (ideological) reflection of the commodity exchange under capitalism?Footnote 47 While Pashukanis understands his theory as historical–materialist (about historical material conditions of possibility) it is so abstract and categorical about law as such (the legal form) that it comes close de facto to an essentialist (that is metaphysical) theory. It is difficult to match, for example, with the historical existence of law long before the rise of capitalism. Secondly, there is another problem with economic reductionism, which admittedly was not as clear at Pashukanis’ time as it is today. While capitalism is deeply intertwined with other structures of oppression and marginalisation, such as colonialism, racism, sexism, heteronormativity, and ablism, those intersecting structures cannot plausibly all be reduced to capitalism.Footnote 48 It would be a distortion, in particular, to assimilate intersectional oppression and marginalisation to exploitation in commodity exchange. Thirdly, it is not clear that legality is best understood today in such a hyper-formalist sense as Pashukanis did. After the successful revolt against formalism by the legal realists and the wide acceptance of legal pluralism, it makes little sense today to regard law exclusively in such a formalistic way. In other words, even if Pashukanis were right that formal law would wither away after a successful Marxist revolution, this would still leave open the possibility that different, less formal types of legality might (re-)emerge after a successful intersectional revolution.Footnote 49 As a consequence, it may also make good sense to anticipate, imagine, and experiment with such utopian new legal forms for the postrevolutionary society, already ahead of the revolution – that is, with prefigurative legality.Footnote 50 Indeed, all self-described prefigurative communities and movements engage in norm-setting/rule-making – and often also dispute resolution – of some sorts, usually a consensual form. This, in turn, leaves open, in principle, also the possibility of prefigurative EU law.Footnote 51
B. EU law abolitionism
With specific regard to intersectional injustice, the question arises whether the intersectional revolution shouldn’t abolish the oppressive and marginalising legal system altogether. Radical Black thinkers in the US have long argued for abolition of the prison industrial complex and the police – in other words, the criminal law system.Footnote 52 Their reasoning is straightforward. The stated aim of police and prisons is to make people safer. In reality, however, they make racialised groups more unsafe. Given that racism in the police and prisons is structural and endemic, police and prison reform will not do. Indeed, there exist troubling continuities between enslavement and mass incarceration. Therefore, prisons and police should be abolished. Similarly, it could also be argued for EU law that it is so deeply complicit in intersectional injustice that it is beyond repair and, therefore, should be abolished too. And, given that the EU is legally constituted, EU law abolition would mean the abolition of the EU.
However, it is important to note, in this regard, that most abolitionists do not regard abolition as an end state but rather as a practice. And as Angela Davis has argued, building on WEB Du Bois’ vision of US reconstruction after the formal abolition of slavery,Footnote 53 abolition ought to be understood as a radically democratic praxis, a praxis of abolition democracy.Footnote 54 As she underlines, ‘it is not only, or not even primarily, about abolition as a negative process of tearing down, but it is also about building up, about creating new institutions’.Footnote 55 Similarly, EU law abolition is not necessarily an end state either. EU law abolition could mean the creation of new institutions that better serve everyone, in particular people currently at the periphery of European society.Footnote 56 This could be done through radically democratic processes that centre the agency of currently multiply oppressed and marginalised persons. Nor should EU law abolitionism be understood as a form of legal nationalism. The claim is not that any of the national laws of EU Member States does any better than EU law when it comes to intersectional injustices. Going back to national law is not the way forward. Therefore, prefigurative EU law practices could be of crucial relevance. They could show very concretely what Europe could look like after an intersectional EU revolution. In sum, abolition versus prefiguration is a false dichotomy.
5. Prefigurative law
While post-revolutionary law is thus not categorically excluded, and, therefore, the very idea of prefigurative law not a contradiction in terms, the question remains, nevertheless, what this idea of prefigurative law might mean in practice. What legal practices and institutions could give us hope for a radical transformation towards a more just society?Footnote 57
A. Imaginative legalism
Amy Cohen and Bronwen Morgan have recently introduced the concept of prefigurative legality, which they define as ‘efforts to use the language, form, and legitimacy of law to imagine law otherwise – and through various kinds of direct actions rather than primarily through appeals to courts, legislators, or other state officials’.Footnote 58 They develop their argument with reference to PARK(ing) Day, as documented by Amelia Thorpe in her sociolegal study Owning the Street. On PARK(ing) Day, 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).Footnote 59 Initiated 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.Footnote 60 In other words, this world-wide practice of ‘pop-up parks’,Footnote 61 ‘to take control by repurposing or redirecting what tickets do’,Footnote 62 allows people to imagine and practice new understandings of property (in the common law reading) or possession and contract (in the civil law tradition) and of legality more generally.Footnote 63 Cohen and Morgan characterise PARK(ing) Day as ‘a transgressive example of prefiguration because it insists that another kind of city already exists through people’s experiments with state-centred legal ideas of contract and property rights’.Footnote 64 As they point out, activists participating in Park(ing) Day ‘do not oppose or defy the law, or advocate for its interpretation or reform. Nor, however, do they ignore law. Rather they play with law, working within legal rules to transform them’.Footnote 65
PARK(ing) Day is an imaginative instance of prefigurative law where existing legal doctrines are understood playfully ‘as if’ they already had the meaning they would have in a better society. Or to be more precise, they play with the well-known indeterminacy of legal concepts. Legal indeterminacy was a core tenet of the critical legal studies (CLS) movement. Duncan Kennedy famously demonstrated how for any legal rule, even the perceived most technical ones – say, contract law rules on offer and acceptance –, a range of plausible interpretations could be placed on a continuum from individualism to altruism (proxies for political right and left), thus radically politicising so-called ‘merely technical issues’ of contract law and, as a consequence, fundamentally challenging the viability of a law-politics divide.Footnote 66 Kennedy further showed how judges can actively pursue different political agendas in strategic interpretation.Footnote 67 Just like in the PARK(ing) Day case, the idea here is to play the (language) game of legal formalism, that is, to remain within the internal perspective of the legal form, acting ‘as if’ a better legal substance was already generally accepted as ‘positive’ law.
If we understand prefigurative legal scholarship as ‘a form of legal scholarship willing to suspend skepticism about how and whether a series of tiny, temporary interventions … will coalesce into structural and system change’,Footnote 68 as Amy Cohen and Bronwen Morgan propose to do, this could amount to a form of epistemic prefigurationFootnote 69 and of – or akin to – epistemic resistance.Footnote 70 Yet, a note of caution seems in order. The notion of prefigurative law, especially as a scholarly practice, seems particularly susceptible – perhaps more so than other forms of critical legal scholarship – to perversion and domestication through co-optation of the radical – indeed essentially revolutionary – idea of prefiguration (prefigurative washing).Footnote 71
B. Substantive legalism
A second type of legal prefiguration goes one step further. This is the case where activists play legality. Perhaps the best-known instances are people’s tribunals, after the example of the Russell tribunal (1966), a private people’s tribunal set up to determine whether the US had committed war crimes in Vietnam.Footnote 72 Here, participants are fully aware that their acts do not formally constitute or apply law. They lack the formal authority to do so. However, in their understanding, substantively it is law – or, rather, what the law should be in a better world. Put differently, this version of legal prefiguration is more utopian. As said, this can be seen as a second type of prefigurative legality (substantive legalism).Footnote 73 However, instead of setting up a dichotomy these two types could also be imagined on a continuum – in this case a continuum from more substantive to more formal prefigurative legality, or from more internal to more external to a specific legal form.Footnote 74
C. Ambivalent anti-legalism
Finally, we can distinguish a third type that could be referred to as ambivalent prefigurative anti-legalism. This is the case where activists reject the state, its laws, and its law-making and law-applying institutions, but then replace state law, legislators, and courts with what seem largely functional equivalents but strictly of their own making, while also sometimes strategically relying on state law (eg, when invoking their constitutional rights against the police – strategic legalism). Autonomous communities often display such features of ambivalence. The ambivalence lies in the fact that they consider some of their practices illegal while at the same time they understand these practices as prefigurative of a different kind of (non)law, (non)legislation and (non)adjudication.
Take the autonomous community that flourished 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.Footnote 75 All decisions at the ZAD were taken by consensus. It would of course be possible to understand the outcomes of the consensual decision-making à la ZAD – for example, about the use of land (farming or dog walking?) – as private contracts, and to interpret them in accordance with the French ‘positive’ (that is: state) contract law that continued to claim applicability also in this autonomous zone. However, instead of such a domesticating reading the same practices could also be read – much more radically – as an attempt from the margins to prefigure a better society.Footnote 76 The zadistes rejected any form of legal enforcement. In their dispute resolution practices their focus was on reparation for harm done, not loss of profit. And at their ‘non-markets’, produce was offered à prix libre.Footnote 77 These practices prefigured a (non)contract (non)law fundamentally different from our contract law today as it is usually understood. Such a prefigurative reading could destabilise conventional ‘positivist’ understandings of ‘contract’ and ‘law’. This reading of the ZAD as a prefigurative space would definitely not fit with the needs of a capitalist economy, but it might work just fine in building a horizontal society.
6. Intersectional legal prefiguration
Such playfully subversive exercises of (non)legal (non)rights allow us to imagine the 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 is not for those in power (including doctrinal legal scholars, claiming interpretative authority) to decide what the law is, let alone what it should be. A new understanding of law can be built from the bottom up and from the margins (maybe together with allies). Perhaps the time has come to occupy the law. Rather than to abandon the 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 legal rights and institutions?
A. Prefigurative whiteness?
Yet, the idea of occupying the 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 are striving for is an all-white one, a ‘white utopia’?Footnote 78 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’.Footnote 79 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.Footnote 80 In other words, the survival of the ZAD for nearly a decade is probably best understood as a salient instance of white privilege. Similar criticism has been addressed also to PARK(ing) Day. The possibility to experiment playfully with the boundaries of legality – to play with the master’s tools, one could say – 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 exactly is the law being occupied?
B. Interlocking systems of oppression and marginalisation
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 intersecting structures of capitalism, racism, sexism, heteronormativity, ablism, classism, and extractivism (among others). On the further premise that no one is free unless everyone is,Footnote 81 the intersectional revolution aims to overthrow these intersecting structures of oppression and marginalisation.Footnote 82 Intersectional revolution and intersectional prefiguration are inspired by the groundbreaking Black feminist idea of ‘interlocking systems of oppression’ or ‘intersectionality’,Footnote 83 abolitionist thought and organisation,Footnote 84 and the practices of queer communities.Footnote 85
C. Non-violence and radical democracy
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.Footnote 86 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 society can be turned on its head through other means than violence. There is nothing intrinsically or necessary violent in political or social revolution.
Indeed, intersectional revolution and intersectional prefiguration are radically democratic. One way of understanding prefigurative counter-movements is as subaltern counter publics, which, in the words of Nancy Fraser, are ‘parallel discursive arenas where members of subordinated social groups invent and circulate counterdiscourses’.Footnote 87 The aim of counter discourses is not to remain marginal (they are not the self-righteous echo-chambers their detractors claim). Their epistemic claim is to deserve acceptance by the wider public – indeed, more so than many of the currently accepted discourses. Insofar, counter publics and their counter discourses are properly understood as prefigurative.
Aditi Bagchi has argued that radical democracy is unlikely to bring radical change.Footnote 88 Epistemic uncertainty about the material effects of change, and normative uncertainty about the moral imperative to support it, will make people resistant against radical change. However, Bagchi’s understanding of ‘radical democracy’ focuses entirely on majoritarian reform. Insofar, her argument converges with that of Derrick Bell, who famously argued that the current social-economic-political structure, including the law, is organised to serve the interests of white people and that real change will not happen except when also in the interest of whites.Footnote 89 Yet, this point, ie, that radical egalitarian change will not occur through majoritarian reform, can be read, it seems, as an argument against reformism and for intersectional revolution, as the only way to achieve intersectional justice, and for intersectional prefiguration, as the only way to achieve this revolution. Epistemic and moral uncertainty is exactly what prefiguration (as opposed to blueprint reformism) aims to respond to through its experimentalism as a mode of learning about means and ends. The hope is that people experiencing how it is to live in a society without hierarchies may think differently about the relative importance of privilege (material and positional) and equal freedom than current majorities in current systems of representative democracy. Still, it remains important to acknowledge that we do not know the substantive outcomes of radical democracy, given its radically open-endedness. But that is hardly a flaw. Indeed, it is the main virtue of a process whose point it is the ensure equal political agency. In the words of Kimberle Crenshaw, the goal should be ‘the inclusion of marginalized groups for whom it can be said: “When they enter, we all enter.”’Footnote 90
D. The epistemic superiority of the oppressed
The question of epistemic and moral uncertainty brings us to a third premise of intersectional prefiguration: the epistemic and moral superiority of communities of oppressed and marginalised people struggling for liberation.Footnote 91 Counter-communities and counter-publics know better which radical changes are needed to bring about a society without hierarchies and how this can and should be achieved. Think historically of the Maroons and today, for example, of queer communities.Footnote 92 Their 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 own predicament or the best way to change it. On the contrary, revolutionary hope can be found in the practices and institutions in the counter-communities and movements of those currently kept at the margins of society.Footnote 93
By the same token, people not belonging to any marginalised or oppressed groups – that is (multiply) privileged persons – have an epistemic disadvantage when it comes to social injustice.Footnote 94 The point here is not to romanticise or exoticise conditions of oppression and marginalisation or to suggest that the privileged should extract valuable knowledge from the oppressed, mining their experiences, so they can maintain their positions of power through strategies of co-optation.Footnote 95 As Olúfémi O. Táíwò underlines, the main question is not who are listened to inside the room, but who are present in the room in the first place. So, it is not merely about epistemic humility from those currently at the centre, although that is urgently necessary. It is, quite materially, about which bodies are in the room where decisions are made and how to rebuild the room together – and ultimately the entire house.Footnote 96
E. Beyond reformism
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.Footnote 97 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’,Footnote 98 perfectly captures the justified revolutionary scepsis of the subalternised towards reformism.
But do reforms necessarily have to be reformist or could they also be revolutionary? In the 1960s, André Gorz discussed the possibility of ‘revolutionary reforms’, that is ‘reforms leading to a radical transformation of society’.Footnote 99 He argues that what he calls ‘non-reformist reforms’ can be revolutionary in this sense. While reformist reforms understand the horizon of possibility and realism in terms of the given system and its power structures, non-reformist reforms set out to challenge the system and to overcome the existing power structures.Footnote 100 Gorz’ focus was on the capitalist system and the struggle of workers, but the idea of revolutionary non-reformist reform should be expanded to other structures of oppression.Footnote 101 Revolutionary reforms, then, are not about what is possible under the current intersecting structures of oppression and marginalisation but what must be made possible in terms of intersectional justice.Footnote 102 Or, put in the epistemic terms introduced above, non-reformist reforms are revolutionary in that they aim at a paradigm shift. These reforms may not make sense in terms of the existing society but all the more so in terms of the future more just one.
The idea of non-reformist reforms was taken up recently, by Ruth Wilson Gilmore for the context of prison abolition,Footnote 103 and by Amna Akbar, as a wider framework. As Akbar puts it, ‘non-reformist reforms aim to undermine the prevailing political, economic, social order, construct an essentially different one, and build democratic power toward emancipatory horizons. They seek to redistribute power and reconstitute who governs and how. Today’s thinking about non-reformist reform is both an effort to rethink the kinds of laws, policies, norms, relationships, and modes of organisation that we might build to govern society, and an effort to democratise relations of power: to have fundamentally different people at the helm’.Footnote 104 Saniya Amraoui has recently advocated non-reformist reform for EU migration law, arguing that ‘it is time to move beyond reformism and to critically examine the foundational principles of the EU legal framework on migration’.Footnote 105 The aim would be to create a shift in power dynamics away from the profoundly marginalising and othering status of ‘third-country national’ (lower than second-rate citizenship) which is deeply embedded in the structure of EU free movement law central to the basic structure of the EU.
Clearly, there are significant overlaps between non-reformist reform as understood by Amna Akbar and Saniya Amraoui and intersectional legal prefiguration as outlined here.Footnote 106 In particular, both are about bringing the post-revolutionary society into the present, sharing the paradigm shift and the temporality aspects as well as the intersectionality aspect of mutually reinforcing structures of domination.Footnote 107 Perhaps the main difference is in scale: prefiguration is about trying out on a small scale (a microcosmos) while non-reformist reforms are directly at full scale (the whole society) albeit always for a specific aspect of it (for example, the category of ‘third-country nationals’).Footnote 108
One question that is often asked with regard to prefiguration is whether it can be combined with other strategies, including ones that involve state institutions.Footnote 109 The answer is yes, as long as these other actions are indeed strategies, aiming at longer term structural change in the basic structure of society, empowering the currently oppressed and marginalised (revolution), not mere tactics, geared towards short term substantive gains without undermining the existing power structures, instead reproducing and entrenching them, like for example, EU consumer law does – a paradigmatic example of EU reformist reform.Footnote 110 Finally, of course, legal prefiguration can be combined, as a strategy, with non-legal (not to be confused with illegal) prefigurative practices. Indeed, it is by no means a claim or premise of this article that prefigurative practices as a strategy for radical change necessarily must include legal prefiguration. The claim is much more modest: prefigurative practices, as part of a revolutionary strategy, could also include or consist of practices of legal prefiguration.
7. Prefigurative EU law
A. EU revolution
The intersectional revolution cannot happen top down, only bottom up. The central idea is that radical, transformative changes – at least the kind that are non-violent – occur from the margins and interstitially: the new society is built from within the cracks of the old one.Footnote 111 This is why the ‘ordinary legislative procedure’ (Article 294 TFEU) will not achieve social justice in the EU, at least not in the sense of including prominently the overcoming of intersectional oppression and marginalisation through radical democracy. EU directives and regulations are not where structural change in terms of social justice and democratic agency can realistically be expected.Footnote 112 They are not sites 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 likely next step after the Digital Fairness Fitness Check.Footnote 113 Stakeholder consultation is not democratic empowerment. Yet, when it comes to the future of the EU, most of critical EU law scholarship, just like the general public, is either in rejection mode or reformist (in particular treaty-reformist).Footnote 114 This applies also for the recent academic focus on constitutional imaginaries, which usually do not go beyond reformism.Footnote 115 It is time to overcome this false necessity and consider the possibility of a bottom up EU revolution beyond the imaginaries of EU law scholarship.Footnote 116
Bottom-up intersectional revolution does not necessarily mean small-scale or local in any geographical sense. Indeed, some of the main self-consciously prefigurative movements have been radically internationalist. For example, the aim of the alter-globalist movement was to show, through their decentred horizontal practices, how transnational radical democracy is possible.Footnote 117 It is true that these movements have challenged not only borders but also the state. However, as Davina Cooper has highlighted, prefiguration can also mean challenging prevalent ideas of what it means to be a state (conceptual prefiguration).Footnote 118 While her main focus is on prefigurative local government, especially the example of radical left municipal administrations in the 1980s, she intends the prefigurative state explicitly as plural, ‘taking shape as micro, city, regional, national, and global formations’. In other words, there is no intrinsic localist or nationalist bias in the idea of prefiguration – with or without the state. Prefiguration means practices on a smaller scale than the whole of society, but this scale does not have to be geographically bounded, certainly not by nation state boundaries.Footnote 119
At Ventotene, a small island off the Italian coast near Naples used by the fascist government as an open-air prison for its political prisoners (confine), Altiero Spinelli, Ernesto Rossi, and Eugenio Colorni wrote in 1941–1942 Towards a free and united Europe: project of a manifest, better known as ‘The Ventotene Manifesto’.Footnote 120 The Manifesto became a legendary source of inspiration for European integration, especially for European federalists.Footnote 121 Less well known is that the manifesto explicitly called for ‘the European revolution’.Footnote 122 In particular, it stated that ‘in order to respond to our needs, the European revolution must be socialist, ie, its goal must be the emancipation of the working classes and the creation of more humane conditions for them’.Footnote 123 The Ventotene Manifesto has various passages that should not inspire us today.Footnote 124 It envisages ‘a European arrangement of colonial possessions’.Footnote 125 It understands the envisaged European federation as a prelude to – or the nucleus for – a global federation (Eurocentric prefiguration).Footnote 126 And it is profoundly vanguardist in its deep scepticism of democratic revolution.Footnote 127 By contrast, the European revolution envisaged here is radically democratic, anti-Eurocentric, decolonial and – what amounts to the same – for open borders. Yet, the fundamentally post-nationalist vision of the Ventotene Manifesto can still inspire us today. The Manifesto sets a clear priority: ‘The question which must be resolved first, failing which progress is no more than mere appearance, is the definitive abolition of the division of Europe into national, sovereign States’.Footnote 128 There is nothing in this call for the abolition of borders necessitating Europe to close and entrench its external borders, effectively turning the EU into just another national, sovereign state. Quite the contrary, on the same ground Europe should strive for an ever more open Union. It could do so by progressively opening its external borders, in particular towards the Global Souths, also as a way to start addressing a shared history of colonialism.Footnote 129
So, what can be done today? In particular, which legal practises could prefigure a fundamentally more just EU? What could a prefigurative EU law look like? And how can academics contribute to leftist reworlding of the very idea of european union (decapitalised)?Footnote 130 While the last thing we need is an EU revolution from the centre – and the European University Institute may seem a particularly unlikely place to start a radical movement – and while my own legal imagination may be severely limited by years (indeed, decades) of training and scholarship in EU law, I will nevertheless hazard some suggestions, if only to make the abstract idea of prefigurative EU law somewhat more concrete. To start with, drawing on other experiences, prefigurative EU law practices could include radical rewrites and the drafting of utopian principles of EU law.
B. Radical CJEU rewrites and prewrites
Following the inspiring examples of feminist rewrites,Footnote 131 queer rewritesFootnote 132 and the Anthropocene Judgment Project,Footnote 133 a community of European activists, practitioners, and academics recently launched a promising project, called ‘Intersectional Rewrites: European Court of Human Rights Judgments Reimagined’.Footnote 134 What these rewrite projects have in common is their aim to show what a better, juster law could look like, thus expanding the horizon of what seems legally possible.Footnote 135 Another salient common feature is that they are collaborative projects, bringing together activists, practitioners, artists and academics. Thus, they also understand the rewriting of judicial opinions as a praxis, to change and expand legal reality, not merely to better understand its current potential and limits. Most of these projects aim at structural change in that they seek to transform society from within, at the interstices of the core legal practice of judgment writing. Insofar, they are not reformist but revolutionary.Footnote 136 Some participants explicitly self-describe what they are doing as a prefigurative practice. See, for example, Zoe Nay and Julia Dehm, when they observe: ‘In donning our “imaginative robes”, we write to prefiguratively enact the types of normativities and legal adjudicative practices that will be needed to address the structural injustices of the Anthropocene’.Footnote 137 Or, they understand the judgments themselves as prefigurative, as Hilary Charlesworth does: ‘The prefiguration of feminist judgments, as illustrated in this volume, offers a powerful method of engaging with the gendered form of the international legal system, enacting changes that feminist theorists have long argued for’.Footnote 138
Along the same lines, and inspired by these projects, in particular the one on intersectional ECHR rewrites, a creative prefigurative EU law practice could be the rewriting of leading cases of the Court of Justice of the European Union (CJEU rewrites). Past experiences (direct effect, supremacy) and more recent ones (the value turn) show how activist the case law of the court can be, often with scant textual support in the Treaties. Yet, while often referred to as ‘revolutionary’,Footnote 139 in reality the CJEU’s landmark rulings have done nothing to transform the basic structure of European society. Rather, they maintain and further entrench the status quo of structural injustices and disempowerment (while empowering the CJEU).Footnote 140 What has the so-called ‘value turn’ done for oppressed and marginalised people in Europe?Footnote 141 A CJEU rewrite project could show how to imagine genuinely revolutionary CJEU rulings, with a very different political agenda and understanding of revolution.Footnote 142 A specific focus could be given to intersectional rewrites, transforming the EU towards intersectional justice, or decolonial rewrites, confronting the EU seriously with its colonial past and present,Footnote 143 thus prefiguring intersectional and decolonising revolutions in EU law.Footnote 144 Examples of the former, emulating the ECHR intersectional rewrites project, could include intersectional rewrites of the CJEU’s (structurally racist) rulings in the headscarf cases,Footnote 145 while an instance of the latter could be pre-writes (following the example of the Anthropocene judgments project) of imagined future CJEU cases on material reparations for historic and ongoing colonial wrongs. A crucial feature of feminist rewrites is that they are written by women, as evoked by the name of the seminal ‘Women’s Court of Canada’.Footnote 146 Similarly, the ECHR Intersectional Rewrites project centres the political agency of people with lived experience of intersectional oppression and marginalisation.Footnote 147 A prefigurative CJEU rewrites project could similarly start, through its authorship, overcoming the CJEU’s startling whiteness – which epitomises what Nozizwe Dube aptly calls ‘the unbearable whiteness of EU law’Footnote 148 – and make visible the struggles of Black and other racialised European women.Footnote 149
However, an important limit of such rewrite and prewrite projects, especially from the point of view of democratic agency, is that they still focus on courts, thus further entrenching the idea, widely accepted among legal scholars, that legal change should come from the judiciary. Yet, it is far from clear how this would prefigure a better society. The idea of a society ruled by judges seems hardly utopian (except maybe for judges). It would amount to (legal) expert government rather than radical democracy, a form of domination (rule by others) instead of emancipation (towards collective self-rule), failing to shift political power from the centre to the periphery of European society. Under (consequentialist) revolutionary instrumentalism the revolutionary ends may justify the means. It, then, suffices that the oppressed and exploited receive what they need, whether they are themselves agents of change or not.Footnote 150 However, prefigurativism’s deep commitment to the congruence of means and ends, and to horizontal decision-making, should mitigate any revolutionary enthusiasm for rewrites and prewrites as a form of prefiguration, including CJEU rewrites and prewrites as forms of prefigurative EU law.Footnote 151
C. Utopian principles
At the beginning of this century, several international teams of legal academics (and a few judges) engaged in the drafting of various sets of principles of European private law, most prominently the Principles of European Contract Law (2000) and the Draft Common Frame Reference (2008).Footnote 152 These projects were at the heart of the European private law movement, which was driven by strong (post-nationalist) European idealism.
In retrospect, it is astonishing how positivistic (and in some respects outright conservative) these projects were.Footnote 153 Their explicitly stated aim was to show what a future common private law for Europe could look like – in other words, to prefigure European private law. This could have been the private law of an ideal European society – or at least a radically better one. Yet, the PECL and especially the DCFR look remarkably similar to the lowest common denominator (the ‘common core’) of the existing private laws of the EU Member States at the time, with only a shy inclination here and there towards social justice reform. Given that these sets of principles were products of academic freedom, not constrained in principle by anyone or anything, why were they not much bolder, more utopian?Footnote 154 Why did the proposed European private law for the 21st century look so much like the nationalist and bourgeois civil codes of the 19th century?
Two decades later, it is perhaps time to try again and do better. Just like a new generation recently came together in Amsterdam to draft a new manifesto on social justice in European private law,Footnote 155 a much more radical one than its now two decades old original,Footnote 156 so too could a new generation of more radical EU (private) law scholars unite to draft sets of principles prefiguring the basic structure of a more socially just EU.
These new principles, for example, could de-constitutionalise EU competition law and the market freedoms and add new legislative competences based on principles of intersectional justice and free movement into the EU. They could proclaim the freedom for workers to conduct their business,Footnote 157 introduce an internal non-market, based on the non-binding force of contract and prix libre. And they could replace ‘representative’ in Article 10 TEU with ‘radical’ or ‘empowered participatory’ democracy.Footnote 158
At a conceptual level, they could radically alter the meaning of existing core EU law concepts by formally defining them quite differently, such as internal market (as a space for fair trade), common values (love, care), principles (anti-racism, anti-colonialism, degrowth), and property (as a non-exclusive right). They could also introduce new ones, more in line with the experiences of those currently at the margins of European society. To be sure, there are limits to what conceptual activism can achieve materially (that is, beyond imagination).Footnote 159 And we should guard for pure conceptual instrumentalism. But a radically different conceptual frame seems an indispensable part of truly transformative EU politics. And prefigurative conceptual activism would mean to act as if the existing concepts already had a new meaning or as if new concepts already were part of our common frame of reference, hoping to bring – through legal imagination – an onto-epistemic shift in our understanding and the reality of Europe.Footnote 160 Crucially, as Iyiola Solanke stresses, for re-imagining EU law ‘the pool of valued knowers and knowledge needs to be widened’.Footnote 161 Therefore, the group of principles drafters it the room cannot be anything like the Study Group on a European Civil Code, which did not so badly on gender balance, but was all-white.
Yet, even principles and common frame of reference projects as we know them also have their intrinsic limits. They evoke the legal imaginaries of hyper rationalism and systematicity.Footnote 162 But their most important limit is that they are expert projects. This means that at best they could be vanguardist exercises, where a group of professional (professorial) EU law revolutionaries would show the way.Footnote 163 But at worst, it could easily become another instance of elite capture, where those in the room have little interest in rebuilding the room, let alone the entire house.Footnote 164 From the point of view of a radically democratic revolution that would seem anything but prefigurative. Having said that, it is not intrinsic to the idea of drafting imagined legal principles that this should be done by (or even involve) legal scholars – quite the contrary.
8. A revolutionary 28th non-regime
This brings me to my final and main suggestion for EU legal prefiguration: drafting a revolutionary 28th non-regime through a radically democratic process.
A. Deregulatory sandboxes
In her ‘Special Address’ to the World Economic Forum in Davos the President of the European Commission von der Leyen recently stated the following:Footnote 165
Today, the European Single Market still has too many national barriers. Sometimes companies are dealing with 27 national legislations. We will offer instead to innovative companies to operate all across our Union under one single set of rules. We call it the 28th regime. Corporate law, insolvency, labour law, taxation – one single and simple framework across our Union.
The Commission President was not shy about her agenda. She said that ‘we must make business much easier all across Europe’, denounced ‘unnecessary red tape’, announced a ‘far-reaching simplification of our sustainable finance and due diligence rules’ and then went on to propose the 28th regime as the way to ‘bring down the most common barriers to scaling up all across Europe’. A week later, the Commission presented its ‘Competitiveness Compass for the EU’.Footnote 166 It proclaimed that ‘making it possible for innovative companies to benefit from a single, harmonised set of EU-wide rules wherever they invest and operate in the Single Market, instead of facing 27 distinct legal regimes, would represent a real game changer’,Footnote 167 and announced its proposal for a 28th legal regime as a ‘flagship action’, for Winter ’25–’26.Footnote 168 Most recently, in her 2025 State of the Union address, President von der Leyen reaffirmed: ‘For innovative companies, we are preparing the so-called 28th regime’.Footnote 169
Some European private lawyers will have taken the Commission’s announcement as a blast from the past. The language of the 28th regime dates back to 2011, when the Commission proposed the Common European Sales Law (CESL) as an ‘optional instrument’,Footnote 170 a ’28th system’.Footnote 171 That proposal was quite limited in its substantive scope: only sales contracts. Similarly, another instrument referred to at the time as a 28th regime, the regulation on a Societas Europea, only offered a legal form of business, the European company.Footnote 172 What the Commission seems to have in mind today is much bigger: a single framework comprising corporate, insolvency, labour, and tax law, thus crossing the boundaries between mandatory and default rules as well as between public and private law. In sum, an optional instrument on steroids – definitely a game changer.
Taking these elements together, what the Commission seems to envision is an optional Free Trade Zone, not offshore with fences around it, but across the European Union. A ‘regulatory sandbox allowing innovators to develop and test new ideas’,Footnote 173 a protected playground where aspiring capitalists can play free market. Originally coming from the fintech industry,Footnote 174 where they provide a ‘safe space’ for financial institutions to test their innovations on real persons and prepare the next financial crisis, regulatory sandboxes recently have been embraced by the EU as a means for boosting innovation and, of course, economic growth, the EU’s highest value.Footnote 175 Perhaps the direct aim of the 27th regime is to compete with China, which has been referred to as ‘a sandbox on a national level’.Footnote 176 Quite appropriately, the proposal was announced first at the World Economic Forum in Davos, the annual gathering of the global neoliberal movement. A further element could be added. The 28th regime seems a promising candidate for the Brussels effect, where businesses outside the EU would ‘voluntarily’ opt into the new legal regime made in Brussels.Footnote 177
B. Occupying the 28th regime
Clearly, the 28th regime is where the action in the EU will be in the coming years when it comes to creating new structures of marginalisation, oppression and exploitation. Therefore, in line with what was said before, this seems an appropriate site for prefigurative EU law practices. Occupy the 28th regime! What I have in mind is a bottom-up proposal for a revolutionary 28th non-regime (‘regime’ sounds far too authoritarian). This non-regime would be radical on several levels: the way it comes about, the opt-in mechanism, and its content.
Radically democratic drafting
The revolutionary 28th non-regime would be drafted through a radically democratic process. One way this could be done is through a deliberative assembly. The assembly members could be selected randomly. Insofar, it could follow the model of the Citizens’ Panels at the Conference on the Future of Europe (CoFE).Footnote 178 However, this time there would be the crucial difference that random selection should be radically stratified. In the absence of radically stratified sortition the assembly would simply reproduce existing power structures and dynamics, as was confirmed by the CoFE’s colour-blind vision of the future of Europe.Footnote 179 The stratified selection should be in proportion roughly to the relative degree of marginalisation and oppression of racialised and otherwise minoritised social groups, with a special focus on intersectionality, on the one hand, and the degree of unjustified privilege of other groups, on the other.Footnote 180 Concretely, this would mean, for example, that women of colour and from minoritised ethnicities would be statistically overrepresented in the assembly, while white men of a certain age would be statistically underrepresented or even excluded from the room.Footnote 181
Moreover, limitation of membership to EU citizens would be unjustifiable given that any 28th regime or non-regime is bound to affect both citizens and non-citizens.Footnote 182 Rather than through the framing of the citizen-centric notion of a European demos, a more fitting way to address the transnational reality might be through the notion of a ‘decolonial multitude’.Footnote 183 As suggested by Alvaro Oleart, who coined it, ‘the advantage of the “decolonial multitude” as a concept is that it allows to transcend the statist and Eurocentric perspectives when imagining democracy, and thus avoids the replication of the national statist thinking at the EU level’.Footnote 184 In this way, the concept could help us to make sense of the political reality of actors cooperating intersectionally across different but related struggles.Footnote 185 Mindful of Amandine Gay’s warning,Footnote 186 intersectional representation should be the litmus test for any attempt to prefigurative transnational democracy.
This brings us to another major flaw of the CoFE. It was designed to insulate the citizens’ deliberation within the panels from the wider public sphere outside, notably civil society organisations and political parties. Instead, they got ‘neutral’ advice from ‘experts’.Footnote 187 The intent to prevent capture by resourceful lobbyists may have been laudable. However, the result was strong individualisation (participants as unencumbered atoms) and depolitisation (wishlist drafting rather than struggle over political trade-offs) of European (constitutional) politics. This, in turn, produced a disconnect between the deliberative panels and the wider European public.Footnote 188 The (predictable) result was a panel that reproduced the existing power relations in the EU. Instead, the drafters of the 28th non-regime should be encouraged to remain actively connected with civil society organisations and movements whose consultation should be facilitated throughout. In this respect, the Irish experience with a citizens’ assembly provides a more inspiring example.Footnote 189 There, the process remained highly political throughout, from the agenda setting (the highly politically divisive issues of abortion, same sex marriage, and climate change), to the inclusion of civil society (presentations by advocacy groups), through to the outcome (concrete recommendations, not wish lists of conflicting or aims).
Alternatively, and perhaps more in line with familiar prefigurative practices, the revolutionary 28th non-regime could be drafted by representatives of a counter-public that would remain in full contact with its counter-public sphere. This would have the advantage that the drafting would be shielded to a degree from the societal forces of intersectional oppression and marginalisation. The downside would be that re-connecting with the wider public and its public sphere might prove more difficult. This is a dilemma that mini-publics and prefigurative communities/movements have in common. The more they are cohesive the more difficult it will be for them to scale up to the wider society. If the aim is not exodus but social revolution this is indeed a problem. The scaling question is intrinsic to the very nature of prefiguration and deliberative mini-publics – and to prefigurative mini-publics –, which are about the spatial-temporal dimension of prefiguring today on a small scale the full-scale society of tomorrow. There are no easy solutions other than trying. Neither a prefigurative community nor a mini-public nor indeed a prefigurative mini-public will ever be ‘descriptively representative’ of the wider public or multitude for the purposes of democracy because democracy, and any meaningful description thereof, is fundamentally about political agency. There are no shortcuts to democracy – or to revolution. Nor do prefigurative politics claim that. The scaling up from the prefigurative practice, movement, or community to the wider society and its practice and institutions – the revolution – has to happen (on the view defended here) through democratic political struggle, starting from the margins of society.
Choice to workers and stakeholders
President von der Leyen promised the Commission ‘will offer innovative companies to operate all across our Union under one single set of rules’.Footnote 190 Leaving to one side for the moment the questions of why this privilege will be offered only to innovative companies and how this criterion can be operationalised legally (that is ex ante), the crucial point here is that the choice will be given to ‘companies’. Presumably, the Commission relies here on the familiar legal idea that ‘companies’ across Europe are ‘legal persons’, assimilated to human persons, who can carry rights and obligations, conclude contracts, and indeed opt into a legal regime as a form of choice of law. The further assumption then is that legal persons act through their representatives, which in the case of a company would be its management. But what if the radically deliberative assembly decided that this choice should be made, not by the management, but by the workers, perhaps combined with a council of people representing all those on whom the company is imposing social costs (‘externalities’), including from the Global Souths? Perhaps such a more radical opt-in regime might make companies’ choice for a structurally just 28th non-regime more likely. In this regard, inspiration could be sought from the prefigurative socialist practices of workers’ councils.Footnote 191
Non-citizens’ initiative
Crucial in deliberative participatory democracy is that it must be empowered. For it to be real, there must be some kind of ex ante political commitment to the outcomes of the deliberation. It seems unlikely that President von der Leyen and her Commission would make such a commitment in this case. Second best within the current EU frame might be that the organisers of the democratic assembly on a revolutionary 28th non-regime commit themselves to turning the outcome of their deliberations into a European Citizens’ Initiative (ECI). The ECI is a direct way for citizens to take some control over the Commission’s exclusive right of initiative when it comes to European legislation.Footnote 192 For now, the democratic space offered by the ECI is very limited and hardly radical. All the Commission must do is respond. But more empowering proposals have been made recently.Footnote 193
Yet, one current limitation may prove unsurmountable: its restriction to EU citizens. It is true that the non-regime proposed here would be drafted by citizens and non-citizens alike. Still, mindful of prefiguration’s commitment to congruence of means and ends, as long as non-citizens are barred from proposing EU legislation this would preclude any 28th non-regime-ECI from being prefigurative of a radically democratic European society or transnational multitude.Footnote 194
The 28th non-regime has to be conceived beyond the citizen/non-citizen binary. As Hanna Eklund has shown, the legal framework of the EU has racialised the categories of people, state and person right from the beginning. The well-known aspiration, expressed in the preamble of the Treaty of Rome (1957), to create ‘an ever closer union among the European peoples’,Footnote 195 was meant to include only persons who were considered ethnically and racially Europeans. Today, the difference between EU citizens and non-citizens still co-constitutes racial and ethnic hierarchies.Footnote 196 Therefore, the 28th non-regime-ECI would have to be proposed deliberately by ‘non-citizens’ and ‘citizens’ together, beyond the citizenship line, as if this could constitute already a valid E(non)CI.Footnote 197 This could be seen as a form of imaginative legalism, as discussed above, which relies on the well-known indeterminacy of legal concepts. The claim here would be that, as a matter of interpretation, read in light of the EU’s founding values stated in Article 2 TEU (in particular, democracy, equality, respect for human rights, including the rights of persons belonging to minorities, in a society in which non-discrimination and justice prevail), ‘citizens’ in the ECI regulation of course should be read as including ‘third-country nationals’. Alternatively, it could be understood as the occupation of the ECI by a decolonial multitude.
Hijacking the political agenda
Another crucial element, at least as important, is that the deliberative assembly should set its own agenda. In this case, this means that the deliberative assembly might not want to limit the substantive scope of the 28th non-regime to corporate, insolvency, labour, and tax law. Perhaps it wishes to add rules against intersectional discrimination, for corporate tort liability for climate harm, or declare unfair core contract terms (including price terms) non-binding,Footnote 198 et cetera.
Hijacking the political agenda could mean, in particular, shaking off the shackles of Article 114 TFEU, the current go-to basis for internal market reductionism. This economicist and consumerist gaze, and the ensuing framing of European society and its members, leads not only to undue substantive limits of possibility but also to epistemic injustices and alienation where addressees of EU law are prevented from making make proper sense of their life world. A salient example is the framing of various entitlements as ‘consumer rights’.Footnote 199 The drafters of a 28th non-regime have nothing to lose but their internal market chains. They have a world to win.
Yet, even within the scope the Commission has in mind, there is a lot of room for radical structural change – indeed for a revolutionary 28th non-regime. Corporate law could abolish limited liability, a ‘legal privilege for shareholders’, as Katharina Pistor puts it.Footnote 200 This would prevent them from being socially and environmentally harmful while hiding behind a corporate veil, much more effectively so than ‘corporate sustainability’ reporting and due diligence.Footnote 201 It could also introduce radical workers democracy and require intersectional balance on boards (if there are going to be any boards). Insolvency law could give workers’ claims super priority in case of bankruptcy. Labour law could become labour law. Taxation could tax socially and environmentally unsustainable production. Et cetera.
Legal form
The idea would be for the proposal to have the usual format and style of EU legislation (in this case, probably a regulation), with preliminary recitals, the (potentially pseudo) legal basis, articles, deadlines, etc. This would reinforce the imaginative prefigurative capacity of showing what EU law could look like, also in a very visual sense. That would be a part – perhaps the only one – where (EU) legal experts could play an important role. By occupying the legal form, the authors of the 28th non-regime could show how a structurally more just Europe could be constituted through a radically different EU law (prefigurative European legality). Instead of materialist categorical post-legality it would prefigure a more ambivalent materialist-idealist intersectional (non)legality.
Form is a distinctive aspect of what law has to offer – also when it comes to prefiguration. It is for this reason that prefigurative legal practices play with the form, formalism, and formalities of law. Mere substance would not be prefigurative law, just prefigurative politics (which are important, and perhaps all we need, but outside this article’s explorative scope). However, it is important to note that the playfulness of prefigurative legality is not meant to deny that the stakes are high – or that the stakes are lowest for those privileged enough to feel safe when playing with the master’s tools. The aim – and legal scholars’ possible contribution and responsibility – is to dereify and desacralise the legal form by occupying it and making it do different things – indeed turning it into its opposite, from a new legal regime for venture capitalist domination into a non-regime for a radically horizontal society beyond racial capitalism. While playful in form, it is very serious in its refusal to accept full legitimacy of the existing European legal order,Footnote 202 and in its hope that a radically different legal (non)order is possible in Europe through different forms of (non)legality.Footnote 203
A new compass
Finally, the proposal could be presented as part of a ‘Collaborativeness Compass’ for the EU. This compass might be closer to the moral compass of EU (non)citizens than the Commission’s ‘Competitiveness Compass’,Footnote 204 which was heavily inspired by the report of former European Central Bank President Mario Draghi, ‘The future of European competitiveness’ of September 2024. The Draghi report is obsessed with ‘the productivity gap between the EU and the US’ and treats the United States as prefiguring the better society the EU could become through a radical transformation (a Draghi revolution).Footnote 205
Instead of emulating the US, the EU could be inspired by relevant experiences, practices and understandings already existing in the Global Souths. Ubuntu or Buen Vivir might provide better guidance as a compass than competitiveness. Rather than running after the US the EU could try to catch-up with inspiring communities in the Global Souths.Footnote 206 And instead of seeking a Brussels effect the EU should try epistemic humility.
Prefigurative constitutionalism
Readers might consider this a utopian proposal. Perhaps it is, but maybe one for a realistic utopia. Perhaps drafting a revolutionary 28th non-regime could be prefigurative and bring us some hope for the possibility of a more radically democratic and socially just European Union, where intersectional justice and political (self)empowerment become the litmus tests for justice.Footnote 207
The optionality of the 28th non-regime may be regarded as the weakest link in the idea. However, the opposite may be true. If the 28th non-regime becomes a comprehensive fair-trade regime, then maybe there will be interest from alternative businesses, cooperatives et cetera. And once it works others may follow. That is the whole point of prefigurative politics.
The more comprehensive the substantive scope of the legal non-regime the more it could de facto become the constitution of a new, more just society. And, crucially, that would be de facto a society not locked up in one state but across borders, including the EU’s external borders. This, in turn, could de facto contribute to opening up these borders.Footnote 208 In other words, the 28th non-regime could be a distinct, radically open prefigurative transnational space.Footnote 209
The spectre of EUtopia
Prefiguration and radical democracy have in common – or rather prefiguration understood as radically democratic entails – a rejection of blueprint utopianism.Footnote 210 However, the rejection of blueprints is perfectly compatible with starting from scratch (tabula rasa), exactly through prefigurative practices. The idea is to bring about in the shell of the old society the new institutions for a more just society through radically democratic experimentation.Footnote 211 This poses obvious limits to how substantive (outcome oriented) a fundamentally procedural (practice oriented) proposal for a prefigurative 28th non-regime can be. Therefore, the concrete suggestions made here for the content of a 28th non-regime as well as for how to bring it about should be understood merely as a modest attempt (still very much from the centre) at imagining how to reconstitute the European space starting on a small scale – emphatically not as a blueprint for EUtopia.Footnote 212 Yet, it also aims to avoid the opposite: a dystopian vision of the EU, which allows no room for EU prefiguration, only exodus into communities who understand a better society as being necessarily outside the EU.
9. Serious times
To be a meaningful alternative, legal prefigurativism must be sufficiently distinguishable from legal reformism, on the one hand, and merely political prefiguration, on the other. This is a challenge. At the same time, for EU law prefigurativism there is the specific circumstance that the EU is legally constituted.Footnote 213 This offers an opportunity. Much more than states the EU is a legal artefact. This suggests that any successful EU revolution would be a revolution in its very legal structure. Radical change in the EU means radical legal change. This, in turn, suggests that any prefigurative actions in the EU are most likely to be effective when they target its legal structure. Perhaps a revolutionary 28th non-regime, drafted in a radically democratic way, and targeting intersectional EU injustices, including those done by the EU at its external borders, could show concretely what a better and more just European society could look like, thus providing a glimpse of hope for a better future.
However, it might be objected that our times are too serious for talk about revolution. Faced with the far right’s recent shift towards a strategy to ‘occupy Brussels’,Footnote 214 it might be argued, we need to protect and entrench liberal values and institutions against the fascists. This is not the right moment, the argument might go, for radical, transformative change, an EU revolution. And certainly not, it might be added, in the name of intersectional justice, which is unnecessarily polarising.
This can be understood as either a principled or a strategic argument. As to the latter, there exists little historical or contemporary evidence that liberal entrenchment is an effective political strategy to stop the rise of fascism. As to the principled argument, it is submitted that if contemporary liberals took their own principles seriously (especially the Rawlsian difference principle, which is very demanding) then they too should be revolutionaries and engage in prefigurative politics to finally realise for everyone the liberal rights they nominally support. In the words of Emma Goldman, ‘no real social change has ever come about without a revolution’.Footnote 215
There is another crucial reason why now is the time for intersectional prefiguration. The far right is racist and anti-queer at heart. People who are racialised or belong to minoritised ethnicities, religions and genders are the ones most under attack and vulnerabilised by their verbal and physical violence. In other words, the far-right revolution is the exact opposite of the intersectional revolution.Footnote 216 This has strategic (self-regarding) as well principled implications. As to the former, no one is free unless everyone is. The opposite of domination (eg, the risk of arbitrary arrest) is effective equal freedom.Footnote 217 The principled side is that in times of threat the safety of those most threatened should be society’s first concern.
But what about protecting democratic laws? In a recent comment, leading voices from the Law & Political Economy movement thoughtfully stated the issue as follows: ‘LPE scholars emphasise how law both enables and constrains democratic aspirations and liberation movements. But law’s repressive face dominates in times of authoritarian crisis. At those moments it falls to organisers, activists, lawyers, and community-members of all kinds to sustain law’s democratic potential. We are committed to ensuring that LPE continues to be a space that fosters those sorts of efforts and movements’.Footnote 218 I could not agree more. And it is in this same spirit that this article has tried to show how different forms of radically democratic law can prefigure a society without structural violence or hierarchies. It is important, in this regard, not to conflate democratic legitimacy with existing institutions. Indeed, the LPE statement rightly emphasises law’s democratic potential.
In addition, it might be thought, we must now unite and stand together against existential threats coming from without. In this historical moment, we must protect what we have and stand united. Indeed, now that Europe is finally uniting, in response to external threats, the argument might go, we should seize this unique occasion of widely felt European unity and move fast forward on the path of integration. This second, and partly relatedly, objection brings us back to the question of violence. Is prefiguration possible under conditions of (perceived) violent threats and attacks? Today, the European Union is back into full crisis mode, where Commission and Council take the lead and the European Parliament is bypassed as usual, but this time in the name of defending democracy against external enemies. A semi-permanent crisis modus, where rearmament is presented as militant democracy, may well be predictive of where the EU is heading in the new world order in which the EU’s democratic deficit is perceived as minor compared to the authoritarian regimes surrounding it. Yet, it is decidedly non-prefigurative of a radically democratic society. Indeed, the very idea of congruence of means of ends would require a radically democratic defence of democracy. And where this is lacking, radically democratic prefigurative practices and institutions could provide a source of hope, which seems needed more than ever in troubling times. It should be noted, finally, that wherever the external threats to the EU come from it is not the countries in the Global Souths. This suggests there is all the more reason for the EU to start seeing these countries as they are and open up towards them.
Acknowledgements
I presented earlier versions of the article at the ‘Mini-Symposium in EU law’, Institute of European and Comparative Law, University of Oxford (3 February 2025), the Istituto di Diritto Comparato, La Sapienza, Rome (26 March 2025), the Annual Meeting of the Law & Society Association in Chicago (25 May 2025), the conference ‘Injustice and the EU’ at UCLouvain, Louvain-la-Neuve (12 June 2025), the EUI law department’s faculty seminar (18 June 2025), the ‘1st Conference on Decolonising EU Law’, Oxford (14 July 2025), and the conference: ‘Law & Revolution: Abolition or Prefiguration?’, EUI, Florence (4 September 2025). Some passages in the article draw on my blogpost, Martijn Hesselink, ‘Prefigurative Private Law’ (Transformative Private Law, 8 October 2024) <https://transformativeprivatelaw.com/prefigurative-private-law/>. I would like to thank Gildelen Aty-Biyo, Jacob van de Beeten, Daphné Budasz, Gráinne De Búrca, Nozizwe Dube, Niall O’Shaughnessy, Silvia Suteu, the participants to the workshops, and two anonymous reviewers for their wonderfully insightful comments and suggestions.
Competing interests
The authors declare none.
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