In Conversation

The hopeful edges of power

Radical governance and acting ‘as if’

‘UTOPIAN’ AND ‘RADICAL’ are unlikely words to spring to mind in ­everyday debates about law and governance – but what if the connections they can make are common? In that case, the idea of ‘utopian legalities’ might convey a shared understanding that law and legal frameworks can reimagine and vastly improve social relations. Similarly, ‘radical governance’ might suggest that the governance practices of groups or organisations can disrupt, provoke and transform established institutional structures. If this seems unlikely, posing them as a thought experiment is part of the logic – and the excitement – of exploring these connections. Experiments and simulations with the forms of law and governance stimulate our social and political imagination, and the reverse is equally true. At the same time, prefigurative politics – organising collective action, practices and relationships ‘as if’ a vision of future social change already existed – open up fresh possibilities for how we can design law and governance. Exploring all these possibilities together inspired the creation, in late 2020, of a collaborative research network entitled ‘Utopian Legalities, Prefigurative Politics and Radical Governance’ by Davina Cooper, Amelia Thorpe and Bronwen Morgan under the umbrella of the Law and Society Association. Here, they reflect on the ideas that motivated its development and its potential for exploring new modes of being in the world.

BRONWEN MORGAN: Let’s start with how our work came to focus on ideas of how things could be different. For me, I noticed over my career that a lot of academia is focused on analysis and critique and doesn’t work through what it would mean to explore the creation of alternatives. Davina, you’ve worked on that angle for much longer – it might be much more natural to you. For me, it was definitely an ‘aha’ moment, partway through my career, to think in those terms.

DAVINA COOPER: Since the late ’80s, I’ve been interested in the challenge of developing radical agendas in both government and civil society settings. A lot of my earlier work involved critically analysing the limits of what seemed possible. But in the last ten years, I’ve also become interested in the methods that help academic work support transformative political projects. Specifically, I’ve been exploring what can prompt and stimulate conceptual thinking that isn’t about creating concepts for critique. What are the material and intellectual resources that can support more positive kinds of conceptual work?

Initially, my focus was progressive spaces, what I call everyday utopias. If material conditions shape how people think and how cultures and ideas operate, what happens if those material conditions are radically different – even if it’s at a very small scale? Might a free school generate conceptions of property far more tied to belonging than belongings? Might a women’s sexual bathhouse stimulate new ideas about care and care ethics? Most recently, I’ve been thinking about experiments and simulations, such as the transnational Feminist Judgments Project, and other legal initiatives that role-play judging or writing law in a different key.

These initiatives helped inspire a law reform project focused on the ‘decertification’ of sex and gender, meaning they are no longer formal statuses that people carry. The project explores the implications of this speculative legal move in a British context. Our research team is approaching it as a prefigurative project: we’re asking a law reform question that’s not yet on the table to see what asking this question reveals but also what it makes possible.

Amelia, you’ve been doing something similar with your work on PARK(ing) Day [a global initiative that temporarily transforms metered parking bays into grassroots public spaces]. Did innovative practices there stimulate thinking about property and ownership? Or was it the other way around? How did the relationship between the conceptual and the practical work for you?

AMELIA THORPE: I was inspired by [your book] Everyday Utopias and your other work along those lines, but also by a sense that critique is never-ending. I came to academia after professional work in planning and public-interest environmental law; I’d been frustrated with the way that planning worked in practice. Critique seems ill equipped to produce a better process. If we think about the current housing crisis, for example, critics have been highlighting problems for many decades – underfunding and selling off social housing; negative gearing and capital-gains tax exemptions; vast locational inequalities in access to transport, jobs and services; and inadequate regulation of the rental sector, to name just a few. Critics have also presented (very persuasively, in my view) clear recommendations for change, yet few have been implemented. I’m also increasingly aware that our work as scholars can itself be productive, particularly in law, where legal texts and processes are so often discretionary and subject to interpretation. I’m concerned about the risks of entrenching things that are problematic by highlighting them through critique. If we think about housing again, emphasising examples where laws are interpreted in oppressive ways – such as failing to protect tenants or refusing to grant planning permission for social housing – could strengthen later efforts to apply those laws in similarly (or even more) regressive ways. I’m interested in looking for possibilities to push things in more hopeful directions. There’s an issue too with descriptors such as positive/progressive, negative/conservative – I love the way that you go beyond those boundaries, Davina, especially the way that you’re trying to learn from conservative experiments.

DC: That was the challenge of my 2019 book Feeling Like a State: could anti-progressive political movements stimulate progressive conceptual thinking and, if so, how? That book explores conservative Christian anti-gay legal activism and how it might prompt ways of reimagining states or stateness. I was interested in the twists, parallels and reversals needed for this legal drama to prompt and stimulate thinking about stateness as plural, heterogeneous, capable of being participatory, caring, responsible, even erotic and playful – though these are far more controversial notions for left-state thinking.

BM: I love hearing the history of this. My early work was oriented to the state, but much more on the critical side. Perhaps because I always focused at the national and then global governance levels – such as privatisation of utilities and state governance issues – the possibilities of transformation seemed remote. I was always interested in resistance, and I ended up after many years of research with a feeling of stalemate between social movements on the one hand and these very intricate technocratic procedures of regulation and governance on the other. The register of social movements – their languages and practices – were often so disconnected from these technical procedures that even when negotiations or contestations did occur, their impact on the lives of ordinary citizens was negligible.

I read that San Francisco was starting to sell its municipal water in bottles to try to make money to keep its own water system going. I thought, since all these private companies are selling bottled water, why shouldn’t a city sell bottled municipal water? It’s perfectly good quality. So I wrote a page at the end of one article asking, what if? What if there were more instances of bottled water being provided as a social enterprise? And just a few weeks later, a young woman from Bristol, where I was teaching, just twenty-five, was given a prize for social-enterprise innovation because she had created a social enterprise around that exact concept. There it was in the newspaper. I phoned her up and suggested we meet, and we ended up getting research funding to study her innovations. This was the first example of what became my focus: exploring the place where social enterprise and social activism meet.

Of course, as far as law is concerned, this intersection is somewhat nebulous – they cross over through many different aspects of law. Whereas when I think of your work, Davina, it’s engaged very much with the state – and Amelia has come through planning and worked with the actors around planning. I’ve often felt that the way that law carves out the world and the tools that we’re given are woefully inadequate for starting to reimagine new trajectories. So that’s part of the question for me: how does law divide up the world? It’s a challenge, both for the ease of access in understanding the issues and for actually realising change around them.

DC: In thinking about the state, I want to return to Amelia’s point about polarities. Academic work too often relies on an account of power meeting resistance – of binary forces hitting against each other, where activist resistance, for instance, meets corporate power or state domination. What Bronwen captures with the municipal water example is the range of resources and forms of power that different actors have because of their diverse institutional locations. When you put all radical action outside of the state, and have a narrow, bounded conception of what the state is, you can miss the minor resources and power people have – because they work for a municipality, or because they are a kid in school with access to specific spaces and relationships as a result, or because they are a health worker or engaged in a state-run adoption procedure with access to officials, documents, conversations and other transition points in that process.

AT: Yes! These kinds of power and resources are really prevalent and full of potential. It’s not just at certain radical moments when there are ambiguities or possibilities; it’s all the time. I interviewed an official recently about the governance of streets and the work of activists pushing for more bike lanes. There’s this idea that officials do official things – but we all know that there’s always so much official discretion involved. And the way that officials exercise that discretion is unavoidably subjective: there’s always ambiguity. Talking to one particular official, I was struck by how he struggled with the boundaries between his official position and his personal position. That line is really thin and permeable, which means there’s a lot of possibility. The official position can be quite open. If my work is going to be productive, I would like it to inspire or empower people to see and make use of those potential resources for change.

DC: The tendency of critical left scholarship to conceptualise power as domination can mean losing analytical access to some of the ways people exercise different forms of power. Amelia’s study of PARK(ing) Days is an excellent example of that: put money in a meter and claim that space for a period of time. One of the benefits of prefigurative and utopian politics is that it pays attention to those micro forms of power and to other unexpected power exercises. In the 1980s in Britain, local government became financially very constrained. The Thatcher central government was forcing it to make massive expenditure cutbacks, and so left-wing councils got involved in complex financial arrangements, such as interest rate swaps, to fund public provision. One council I recall sold off their lampposts and then rented them back…or perhaps that was an urban myth! But what radical councils were doing was exploring the power they had. Debt became a source of state power if you could swap interest rates and gamble on getting a better one.

But rapidly, these inventive uses of local government powers started to be challenged legally. The courts were very active in circumscribing what councils could do based on their notion of proper municipal government, which was a very politicised – what today we might call neoliberal – notion. I think in moments of radical ambition, you look for all the different possible forms of power you have, including ones that haven’t yet been curtailed and ones where there’s a real ambiguity about what the power is.

We can see this in the more recent example of local councils in the UK and Spain participating in the boycott of Israel in solidarity with Palestine. Did they have the right to engage in international affairs? Did they have the right to boycott Israel? These are open legal and political questions. The idea of acting ‘as if’ means claiming the power and right, and politics is what follows. It’s about seeing the openness of law as much as claiming a certain set of powers and rights. The critic will say that failure happens because bodies such as local governments don’t have the power to see these actions through, and they’re up against far more dominating forces. But there is that element of uncertainty, where power is unresolved and also emergent.

BM: Maybe that’s why the local scale matters or is a fertile space for change. I always think of Amelia’s parking leases: although there were instances of PARK(ing) Day being challenged, on the whole, at the local level, it was just executed without challenges.

Thinking about the phrase ‘utopian legalities’, there’s something utopian in the form of law, particularly if you take it from a positivist viewpoint where the state hands down clear formal commands, which is how a lot of everyday citizens would see it – as if there are these things called laws, which exist as rules ‘out there’. Seen this way, these ‘laws’ say something general, and then there’s an assumption that something definitive will happen when that general statement is applied to a particular situation, whether by the nearest official or a court or even an enthusiastic passer-by. But of course, it’s never as definitive as that, and constitutions would be the ultimate example of this. Everybody who writes a constitution says, ‘this is how our society shall be’. It’s a moment of dreaming about creating something, whatever they think their organisation, their country, may become. It often falls short. But whether it falls short or overreaches, it’s never complete. It’s impossible for it to be complete – the seeming solidity of those formal words masks the inevitability of flux and change embedded in interpreting them.

Yet there’s something about the popular imagination of what law entails that goes against that, that expects something is either legal or illegal. That’s true at the end of the day because if you get an actual decision, it’s binary. Court decisions say ‘this was legal’ and ‘that was not’. So while the utopian promise is inherent in the form of law at some level, its relationship to the socio-legal is what’s actually more interesting. The formal abstract words may seem clear and certain, but they actually mean very little outside of social practices and socially embedded conventions that bring them alive. A lot of people don’t want to engage with that. A lot of people don’t want to hear that law is pervasively discretionary: that’s quite alarming for a public understanding of law.

AT: I love how the terms don’t seem to fit together. There’s ‘utopia’ in the classical sense: a no place, all blue sky, unreal and idealistic. Then there’s ‘law’: black and white, concrete and precise and bounded. There is a clash in one sense – but then law is never like that. Law is pervasively discretionary, and it’s always subjective. Even when you get a decision, it gets reinterpreted by other judges, refined and reworked in both small and large ways. It then gets reinterpreted again and again by many more official and unofficial actors who implement, enforce, challenge and transgress that ruling, continually reperforming and reproducing understandings of legality. ‘Utopian’ starts to seem like a very apt descriptor for ideals of law as fixed and finite! More excitingly, utopian legalities suggests to me the potential in these performances: law could so often be otherwise.

DC: There’s a sense of paradox because on the one hand ‘the law’ has a kind of imagined perfection to it, an inherent normativity. But if we were to think about specific laws that get closer to a socially utopian ideal – of good law – they probably wouldn’t be laws made by governments with all the pragmatic compromises such laws entail in capitalist society. Perhaps closer are some of the rules, norms, regulatory and co-ordinating frameworks that develop in alternative social spaces where prefigurative ways of living get institutionalised through community processes. For me, one question utopian legalities poses is ‘how do formal processes and standards get folded into utopian projects, and what new legal forms are invented in the process?’ Sometimes they’re engineered, but often they’re emergent. There, the focus isn’t on community laws and frameworks that get installed but on what comes into being less deliberately.

BM: Asking myself that question, I thought it would be almost something tacit – like informal legalities such as bargaining conventions or informal exchanges that can structure the way people co-ordinate change among themselves in ways that are inclusive and could head off conflict. That said, they need to also handle conflict – when it does happen – in inclusive ways. This means thinking about something closer to custom than law, perhaps, but custom that can cope with complex society and especially with many diverse norms overlapping and co-inhabiting in one geographical space, as is common now in liberal and culturally mobile settings. I don’t know what that looks like. I think there’s an element of thinking about utopian legality that might say, look, no law is the ultimate utopia – and that would celebrate that possibility as a kind of withering away. That may seem idealistic. Perhaps I’m expressing a lack of faith in the core focus of our own discipline – it almost feels to me like law is either necessary and unfortunate or problematic and oppressive.

DC: Can you develop legal forms that can support progressive social practice? In your field, Bronwen, you’re thinking about new economic forms, which aren’t what law has traditionally been required to support. So you need new legal mechanisms – you’re engineering legality to support progressive social forms. In relation to utopia, desire is important, much more so than perfection. What do we desire law to do?

BM: When there’s institutional imagination about how law can be used, and people grasp its tools and weave them together, then it comes alive. It’s a way of thinking about law much more as a framework of possibilities than as a tool for imposing order – a way of saying ‘yes’ rather than ‘no’. It’s the sense I get when I imagine you, Amelia, reading a planning document, your eyes lighting up and you thinking, it could be like this and like that! Of course, it’s not that simple. But as I become more immersed in certain bylaws of new legal and economic enterprises I do get to a point where something similar happens – I start to see the possibilities for more regenerative and less extractive ways of doing business. The utopian impulse is to imagine that people could take these somewhat institutionalised forms and use them creatively rather than in oppressive ways – I called it ‘telling stories beautifully’ in one of my articles.

AT: I feel increasingly that laws need an end point: laws, over time, are so often captured by elite interests and shift to become something else. The planning laws in New South Wales were passed in the 1970s after the Green Bans, a social movement formed through amazing coalitions of unions and community groups. People are still so proud of those laws. But over time, they’ve really changed to suit wealthy developer interests. There are so many examples like that, when a new law seems like it’s going to do something good and then, over time, it’s developed and interpreted in ways that worsen the problems it was supposed to solve.

I wrote an article last year called ‘Regulatory Gentrification’, describing how a law that was about protecting affordable housing became a tool to displace people from affordable housing over time. We saw this happen in relation to boarding houses, which provide accommodation for some of the most vulnerable people in our communities. Developer groups were initially dismissive about regulations to incentivise the construction of new boarding houses, but later found these could be used to build very profitable micro-apartments and so shifted their advocacy to argue against any requirements that boarding houses should actually be affordable to people on low incomes. This included legal challenges to efforts by councils to impose caps on rents that could be charged: sadly, these were successful. A utopian law would be one that somehow avoids that kind of reorientation or reinterpretation in ways that increase inequality.

DC: Are laws that emerge from grassroots communities different? Summerhill School, the democratic school established by the influential educationalist AS Neill in Suffolk, England, in the 1920s and still running, is a good example: here, laws are made by the whole school community. This includes the children, and it includes the adults, and they are constantly law-making as situations arise. Some of their laws are general: bedtime for the under-tens, or how you should behave in the dining room or around the swimming pool. But some are very specific to individuals: exempting someone from a general prohibition, for instance, where the law may explain the reason for the exception.

When I visited, some years back, they had all the laws listed on a dining room wall, and there were a lot of them. But every so often, or at least in the past, they’d get rid of them all and start over. People I spoke with described how when they got rid of the bedtime laws, kids would be up all night, school residents would be exhausted and the community would stop functioning well. And so there would be a collective urging for laws to be reintroduced.

Part of the value of this is pedagogic: children learn what laws do by abolishing them as well as by making them. More generally, I was struck by the centrality of rules, what they call laws, at Summerhill – these are things the community owns and makes. It’s a really interesting example of a small-scale, highly legalised community. There isn’t a morality attached to rule- or law-breaking, it’s pragmatic: you’ve been a nuisance, and the ‘you’ could be an adult or child; you’ve taken someone’s bicycle or chocolate or disrupted their sleep, and it’s a pain. Adults in the community I spoke with felt this approach worked better because there wasn’t a sense of shame and humiliation.

AT: Maybe it’s not that laws need an end point; maybe laws just need to maintain engagement. Maybe the problem with some laws is that ordinary people have let go of them. I was trying to think of examples of radical governance that are not the standard examples – such as participatory budgeting in Brazil or the British municipal socialism that you were involved in, Davina, pushing back against neoliberalism in the 1980s. And the example I kept coming back to is our faculty at the University of New South Wales. The Law Faculty at UNSW has a very strong democratic tradition: the highest decision-making body is the faculty board, and every staff member is a board member. We have great meetings where lots of people, even junior people, speak up and debate in a very forthright way. It’s fantastic and has enabled us to do lots of interesting things, such as developing workload models that are generally loved – which seems different to any other faculty I know. Maybe it’s because we’re all lawyers, we’re all really engaged. We’re all paying a lot of attention and working on renegotiating those rules all the time. But then just recently, as part of a big restructure responding to Covid, the central university administration has been pushing back on this. We’re losing some of our local agency and with this some of our local democracy at the moment.

BM: It feels like there’s a real connection here to radical governance and the different types of rules involved. At first, I thought, well, radical governance is going to work better at small scales and at places such as Summerhill. But in fact there are larger scale instances of relatively radical engagement and openness and flexibility and ongoing participation – such as the transnational private certification initiatives that have exploded over the last twenty-five years.

Fair trade is an early example: those rules were pretty radical in terms of returning a proportion of profit to directly supplement the wages of very small-scale producers overseas, empowering those types of initiatives and trying to get better labour conditions in globalised value chains. You see that in food sovereignty movements too, which is a potentially radical governance space.

The certification initiatives are not typically redistributive in structural terms: even the most radical ‘code of conduct’ tends to focus on adding social or environmental goals to a business process but not on structural change, such as handing ownership back to factory workers or redistributing property rights. So when people look at the practical effects of those codes on the ground, they can often be depressingly small. Fair-trade initiatives haven’t slowed the massive growth of inequality, for example. The power of the state to redistribute the allocation of property rights and fiscal resources: this is a strong feature that’s difficult to find outside formal law.

DC: There are ways law can work in relation to structures such as taxation or certification, which seem different from law’s role in framing what constitutes property and whose property it is. In the Future of Legal Gender project, we haven’t approached the decertification of gender and sex as unequivocally good or bad. Engaging with its proposition seems more valuable, at least currently, than determining conclusively whether governments should do it. Suggestions for reform focus people’s attention on different possibilities and the value or harm of what already exists.

Having done this project, I’d recommend prefigurative law reform as an academic method. If you pose radical proposals, such as abolishing money, or abolishing countries’ borders, or abolishing prisons, as law-reform questions – and of course it doesn’t have to be about abolition – the implications of change and what people feel would be lost or gained surface and surface sharply. One risk is it reverts to a struggle between two contrasting positions; the challenge is to maintain openness so that a wider range of perspectives and ideas get explored and new ideas can emerge. The hope with prefigurative law-reform projects is that they help make significant change feel possible. Too often, public debate gets stuck in deciding whether to move one inch this way or that.

BM: One counter example, and the ‘other possible world’ it paints, comes from a podcast on regenerative agriculture – a farmer was talking about management within a 500-year framework and thinking about changing this focus to a thousand years. Then he said, ‘What if all of our planning processes had this sort of benchmark for benefits? What if it was mandatory, if a thousand years was just the benchmark for assessing public benefit? Always, for all planning goals?’ A step like that would go far beyond protecting seven generations – it really opens up our imagination about what’s possible. And yet we already have thinkers immersed in deep time around us – our Indigenous colleagues and, in a different way, our planetary scientists – giving us so many places to build on.

AT: For me, working on planning, there are always so many factors to be considered – but there’s no reason planning authorities couldn’t do more sustainable things already. That potential is there now; the problem is the ways that different things get prioritised or funded or delayed or neglected.

I’ve been looking at bike-lane projects led by groups that call themselves ‘Departments of Transformation’ and ‘Transformation Agencies’ – they’re playing on the titles of the official departments responsible for road infrastructure. These groups go out and install guerrilla infrastructure – small interventions to make bike lanes and pedestrian crossings safer. Most of the time, they’re not introducing new things; they’re simply extending what the official bodies are already starting to do. Where there’s a bike lane that’s just a painted line – which means that cars sometimes park in it or drive over it – these groups put things along the line to make it more effective, sometimes playful things such as coffee plungers or flowerpots, and sometimes quite official-looking equipment. Then they post images on social media, using names and logos that are so close to the official names (and sometimes the logos) that it looks almost as if the official department has done this work. Instead of being an activist group calling for the Transportation Department to do more for safety – which can be read as some form of acceptance that the department doesn’t currently do this and isn’t currently responsible for this – this shifts the frame to say, well, the department is doing it, the department is responsible for it. It’s prefigurative in a really explicit way. And sometimes it seems to work: the department does then start to upgrade the bike lanes.

Coming to law through the prisms of the radical, prefigurative and utopian emphasises the degree to which official processes and priorities – and legality more generally – are contingent and socially constructed. Perhaps because so many shifts have been conservative, such as the spread of neoliberal governance, and so many progressive reform attempts have been short-lived, such as the measures to advance social and environmental justice initiated under Whitlam, we have overlooked the potential to advance progressive goals by acting ‘as if’ things were different. What possibilities might be found in experiments, simulations and playful performances to reimagine and remake law and governance? What can we, as scholars, do to nurture these experiments, to support and extend more socially and ecologically oriented approaches to legality? Our new utopian legalities research network will provide a space to develop and extend these questions, to connect and engage with others who are imagining, examining and enacting more hopeful, caring and inclusive social structures.

References

Collaborative Research Network 50 of the Law and Society Association: Utopian Legalities, Prefigurative Politics and Radical Governance, https://www.lawandsociety.org/crn50/

Cooper, D 2007, ‘Opening up ownership: Community belonging, belongings, and the productive life of property’, Law & Social Inquiry, vol. 32, no. 3, pp. 625–664.

Cooper, D 2020, ‘Towards an Adventurous Institutional Politics: The prefigurative “as if”and the reposing of what’s real’, Sociological Review, vol. 68, no. 5, pp. 893–916.

The Future of Legal Gender, https://futureoflegalgender.kcl.ac.uk/

Morgan, B 2018, ‘Telling Stories Beautifully: Hybrid legal forms in the new economy’, Journal of Law and Society, vol. 45, no. 1, pp. 64–83

Thorpe, A 2013, ‘Public Participation in Planning: Lessons from the Green Bans’, 30(2) Environmental and Planning Law Journal, vol. 30, no. 2, pp. 93–105.

Thorpe, A 2020, ‘Regulatory Gentrification: Documents, displacement, and the loss of low-income housing’, Urban Studies, doi.org/10.1177/0042098020960569

Thorpe, A 2020 Owning the Street: The Everyday Life of Property, Cambridge, MA: The MIT Press https://t.co/FgP06oeW57

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