Fiat embodies a prefigurative politics---acting as though specific reforms are being enacted, even though we know they’re not, enables counter-hegemonic redefinition of prevailing norms and actively rewrites the social conditions that perpetuate flawed institutions---the temporal space and mental distance from actual enactment is key to every benefit of our model

Earlier, I discussed the controversy over reforming state law to treat gender as an elective identity. In this final example, I want to approach prefigurative law reform from a different angle and ask: what value is there in a research project acting as if more radical proposals around gender were on the law reform table?47 In their 2017/18 consultation on reforming the Gender Recognition Act, policy-makers in both Scotland and England and Wales solicited public views on how and whether to make gender transitioning easier and less pathologising. Questions posed included: how many transitions can someone have; to what genders; at what age; and through what means?48 Yet, a more fundamental question remained unasked, even as it became tacitly invoked by the move towards self-determination and the growing gender-neutrality of statutory law: Are there good reasons for people to continue to be legally gendered, issuing from the sex registered at birth? This ‘decertification’ question (Cooper & Renz, 2016) is at the heart of a three-year collaborative research project on the Future of Legal Gender (FLaG).49 In Britain, different social relations structure people’s lives, as they also structure the law, but many – including ethnicity, sexuality and religion – do not give rise to a legally assigned personal status, for instance as gay or Jewish. In contrast, the formal legal status accorded sex/gender places people within defined categories and obliges them to undergo official procedures for their status to change. Legal gender status doesn’t just affect those who need to transition or who object to the category they are placed within. The symbolic importance which the law attaches to a binary structure, in requiring birth-sex to be registered, suggests that sex – lived socially as gender – marks a distinction that is human-shaped and that matters. This is not just a critical mattering; it is also a normative claim about who and what we are (see Cooper & Emerton, 2020). But what alternative arrangements are possible? And can a prefigurative law reform project help to anticipate and establish pathways for reform? We might think of prefiguration here as having two dimensions. The first centres on process, and the challenge of undertaking a mock law reform project in collaborative, critically reflexive ways (see also Macdonald & Kong, 2006, p. 27). The second, which I want to consider, involves taking a radical proposal, not currently on the law reform table, and acting as if it was already under review, and so accelerating its detailed consideration (if not its enactment). De Smet’s (2015) discussion of Vygotsky and ‘proleptic learning’ is useful here. Proleptic learning involves ‘anticipat[ing] or imagin[ing] competence through the representation of a future act or development as already existing’ (de Smet, 2015, p. 91). A prefigurative law reform project comes to understand the implications of legal change by acting as if the questions and choices at stake were reasonable to attend to in the present. But does this assume that what we learn today about future possible changes to legal gender status will retain their value? In the case of law reform, the life expectancy of imagined consequences can be brief as conditions change, lessening the benefits of earlier rehearsal. I therefore want to consider the value of prefigurative law reform as an intervention in the present (rather than an effective managing of the future), and to address the significance of the ‘as if’ in this process. The Future of Legal Gender (FLaG) did not represent itself as an advocacy project. Its aim was not to argue for a new legal agenda; that ‘decertification’ – understood as the withdrawal of state-assigned gender status – should be introduced. But does acting as if this proposal was already on the law reform table, in effect, put it there? FLaG certainly lacked the authorising conditions to render its proposal officially performative (cf. Law & Urry, 2004). It could not work in illocutionary ways by requiring or ensuring decertification was given consideration by state bodies, even as it might contribute to the emergence of a more official proposal in the future (although a backlash could cause it to have the reverse effect). Yet, regardless of whether decertification emerges as a ‘real’ legal proposal, as an imagined measure, that also constituted an emergent methodology for doing socio-legal research, decertification was saturated with belief that it could act. For our part, we hoped its exploration through interviews, seminars and other forms of public engagement would offer, in the current fraught scene, a more exploratory, less judgemental space for gender’s consideration, one that could incorporate some marginalised perspectives, cleavages and questions. With politically lower stakes, looser attachments, and the inevitable temporal space between now and any future-present of the law reforms proposed, more flexible and plural conceptualisations of gender might also be possible, away from the rigid monolithic definitions – that this is what sex or gender really means, for example. The value of a prefigurative law reform project, then, is not just, or even principally, about preparing (for) the future but about alternative discursive lines in the now. Yet, this may suggest prefigurative law reform projects can insulate themselves and so provide participants with a politically constructive, ‘safe’ refuge away from the ‘real world’ fray. Law reform projects, however – including this one – are not that insulated; and this is a source of both difficulty and challenge. If proposals are seen – or can be depicted – as ‘real’ law-making, or if they get presented as the scary place that moderate-sounding legal measures will inevitably lead to, this can intensify divisions and anxieties, undermining the capacity of a prefigurative law reform project to enact an exploratory deliberative space. While it is the credible appearance of prefigurative law reform proposals which incites serious attention, for such attention to remain focused on the merits (or otherwise) of the reform rather than on (challenging) its realisation, the ‘as if’ simulated character of the proposal needs to be explicitly sustained. Conclusion Prefiguration is sometimes dismissed as a minor form of politics – too small-scale and marginal, too invested in its own purity, voluntary action, and dream-world to be a politics that matters or that adds much given the tremendous contemporary crises that we face. But without romanticising prefigurative politics or suggesting it is the only politics worth pursuing, this discussion works from the assumption that prefiguration remains important, including – and, perhaps, especially – at times of political despair when much needed “transfers of power” seem out of reach. This article has sought to contribute to prefigurative thinking by focusing on institutions in conjunction with a specific form of prefiguration, attuned to the ‘as if’. Drawing on research I have carried out, including collaboratively, over two decades, it draws together four very different kinds of prefigurative activity: (1) where local government acts as if it has authority to engage in international policy-making and global solidarity despite countervailing national government policies, authority and alliances; (2) where state law acts as if it has the authority to establish gender’s terms and categories, including by changing understandings of gender’s meaning in the process; (3) where grass-roots communities act as if they have the power and right to remake institutions of money and state; and (4) where researchers act as if a different, more radical proposal was already on the law reform table, and so deserving of serious consideration. At the heart of this discussion lies the question: what do such initiatives create; and what does reading them as prefigurative make visible? Typically, work on prefigurative politics and counter-institutions foregrounds three features: learning, practising and showcasing. This article has considered how prefiguring institutions innovates, energises, stimulates, anticipates, hurries and normalises. However, in understanding what prefiguring does, this article has also foregrounded a different, less attended-to aspect, namely how prefiguring institutions mediates, reconstitutes and troubles the interrelationship of the real to the imaginary (recognising the imaginary is also, in its own sense, real; cf. Bottici, 2014). This relationship comes to the fore in the authorising conditions that prefiguration relies upon, and the work recognition does (and doesn’t) do, within diffuse and unequal circuits of power. A central paradox of prefiguration is that it takes the meanings, conditions and legitimacy it seeks as if they already existed. In a sense, we might describe it as a form of retro-figuring, reliant on imagined antecedents that authorise, for instance, councils’ engagement in foreign policy and street squatters’ state secession. For while prefiguration takes up future-oriented aspirations as enactable present-day practices and norms, it also relies on this future as already in place to authorise the actions it undertakes. This can be read as an imagined form of backfilling undertaken playfully or seriously. But this backfilling can also prove performative – retrospectively creating the authorising conditions relied upon. Local government’s legitimate capacity to engage in international policymaking, for instance, is not predetermined. However, while municipalities may act as if they have authority – putting permissions or entitlements in place by treating them as if they were already there – whether this proves successful depends on what councils and the network of actors, who support, thwart or otherwise affect council actions, also do. Acting as if the necessary conditions are already in place, particularly when undertaken seriously, can be challenged. But the challenging (and other) effects of intervening bodies also structures forward-oriented conditions of accomplishment, and one important process here is how recognition happens. The prefigurative acts discussed are not siloes. Their existence, effects and force are mediated by mainstream institutions along with other bodies, and this mediation also shapes how and whether institutional prefiguration is recognised as ‘real’ (and so not read in the terms of the ‘as if’). For while prefiguration can involve deliberately reaching beyond what can be accomplished, it can also be a way of reading initiatives and reforms that receive insufficient recognition to be realised, and which lack the force to bring such recognition into effect. At the same time, recognition as real is far from uncomplicatedly positive. Initiatives may be framed as ‘wrongly real’, and so subject to criticism and attack as municipal boycotts and legislative consultation on recognising a third gender experienced. Recognition as real-like may also carry costs as local currencies encountered, shoe-horned into a restrictive and penal wider welfare culture. In such conditions, it may seem as if explicit recognition as ‘not-real’ is preferable – where simulations are authorised and validated as imaginative ventures not intended to pass. Approaching initiatives in this way might prefigure a more explicitly experimental and playful politics. While Frestonia shows how recognition as play can trivialise and dismiss, it can also protect initiatives by diminishing their threat. Instead of being denounced as grievous or seditious, initiatives become forms of invention, art, or recreation, occupying a separate, bounded play-world in which their claims can stand. But what happens when the tacit contract is broken, and prefigurative play seeps out? It is tempting to suggest that prefiguring institutions needs to come out either on the side of fictive play or on the side of an ambition to be recognised as real. However, at its heart, prefiguration – whether as a political orientation, specific form of practice, or register of understanding – involves the complex relationship between the imaginary, the fictive and the real. At one level, acting as if things were otherwise invokes a conscious distinction between the real and the fictive – where the imaginary is juxtaposed against what is realised as true. At another level, acting ‘as if’ undoes the distinction as actions based on counterhegemonic understandings and norms change what is (and what is becoming). But prefiguration also embodies something else, and that is the coexisting, overlapping, multiplicity of institutional worlds. Prefiguration undercuts the notion of institutional life as a clear, zero-sum, singular plane (or world). This is not simply because partially-recognised and minor counter-institutions exist alongside dominant ones, communicating, effecting and interacting with them (although this indeed occurs). It is also because what institutions are depends on the facts, legitimacy, roles, authority and functions underpinning and expressed by them, and these different dimensions are frequently in dispute. Acts that are anchored in different normative and epistemic beliefs produce different definitions and accounts of the acts. LETS, for instance, both was and wasn’t money; municipal engagement in BDS both was and wasn’t authoritative state action. This multiplicity is more than simply disagreement or different views about what is happening. Since imaginaries of authority, role, function and legitimacy (among others) help make institutions up, it is also, importantly, about different happenings (see also Law & Urry, 2004, p. 397). Prefiguration unsettles political certainty when it comes to what institutions are and what they do. While this creates risks, it also creates hope.