By Amy J. Cohen and Ilana Gershon

Directions November 2023

“Rainbows – Victoria Falls – Zambia.” By Alex Berger. CC BY NC 2.o.

We begin with an obvious observation about trafficking in alternatives—when one engages with the possibility of better worlds as an anthropologist or as a sociolegal scholar, this entails engaging with social analysis, both how analysts parse the world and how their fieldwork interlocutors do. Analyzing crafting the otherwise involves tracking one’s fieldwork interlocutors’ own reflexive social analysis, analyses which shape the strategies deployed, and the responses these strategies elicit.This focus on reflexivity appeals to anthropologists and sociolegal scholars because it allows us to turn away from the conceptual traps inherent to hegemony and resistance. Scholars are encouraged to explore the techniques people use to imaginatively try new forms, instead of focusing largely on whether a set of practices recreates state or institutional power or resists it (Coutin & Yngvesson, 2023, de la Cadena, 2018, Gibson-Graham, 2002, Graeber, 2009). Sometimes fashioning the otherwise involves balancing two alternative framings of relations at the same time (Coutin & Yngvesson, 2023), sometimes it involves imagining alternative ways of inhabiting already existing social structures using available repertoires in new ways (Gibson-Graham, 2002).Quite frequently, analysts interested in the otherwise ask how their fieldwork interlocutors fashion new social orders that can function alongside the social orders already present. Crafting the otherwise thus depends on a relationship to multiple social orders outlined in Gershon’s (2019) article “Porous Social Orders.” Increasingly, analysts ask not only how their fieldwork interlocutors figure out how to establish new social orders but also how they establish the boundaries between these social orders in such a way that people, ideas, objects, and forms travel across these boundaries in appropriate ways, and not inappropriate ones. In a sense, here we are building on an anthropological take on Luhmann, instead of Bourdieu, Giddens, and other practice theorists, by suggesting that different social orders enable a reflexivity and social analysis specific to that social order (for our reading of Luhmann, see Gershon, 2005; for more on different forms of reflexivity, see Gershon, 2006). This, in turn, affects the kinds of otherwises that people are able to imagine when grounded in that social order (and even when translating across social orders, although this is not the focus of the examples we will draw upon).In this piece, we ask if it might be analytically productive to explore how different social orders enable their otherwises. That is, how do the social orders themselves shape the kinds of reflexive analysis that encourage fieldwork interlocutors to strive for an otherwise using social order-specific practices? In bringing a dialectic sensibility to how reflexivity helps create the otherwise, we are also exploring how to productively differentiate and compare distinct types of otherwises. Are some practices more effective or stable in particular social orders? How do these practices travel across social orders, or are prevented from traveling?The proof is in the pudding, and so, we compare the kind of reflexive strategies adopted by a particular group of Mexican hackers who are influenced by coding practices to a range of legal activists who share a particular kind of commitment to direct action. We are juxtaposing these examples to contrast two ways in which people might imagine alternatives from a porous social orders perspective. For these hackers, the strategies of one social order—coding—becomes the techniques by which they can change their world. They re-interpret other types of social interactions through their coding logic, not always successfully. Thus, they often overlook the mechanisms by which others distinguish between social orders, and, when relevant, will espouse the instrumentality that coding practices can encourage. Prefigurative legal activists, by contrast, reject instrumentality within the legal realm as the starting point for imagining law anew. At the same time, they often direct their legal imagination to transforming legal infrastructures, viewing the legal as-if as one of several routes to structure their world anew.We start by turning to Héctor Beltrán’s (2023) ethnography of Mexican hackers to craft a comparison that reveals the role social orders play in shaping otherwise practices. Beltrán explores how Mexican hackers translate Silicon Valley visions of capital, labor, and innovation into left visions for social change. Hackers often begin forming and performing their communities through hackathons, spaces in which hackers and would-be hackers are ritually asked to make technologies that could change some small portion of the world. Beltrán, however, was puzzled—none of the projects that won the hackathons he attended ever came to fruition, a common feature of hackathons in general (Irani, 2015). Hackers were devoting their time and labor for a few very intense days to create alternative possibilities, acting as if they were potentially producing social change, while, at the same time, fairly aware that these possibilities would never be realized at least in the short-to-medium term. Despite the thwarted promise, hackathons still appealed, hackers knew that they were forming communities of coders in which everyone shares a common imagination of what practices can lead to (diverse) social transformations.Beltrán argues that these hackers use the pragmatic work of coding as a starting point for understanding how to engender new social structures—that the kind of agentive strategies these hackers adopt are elaborations and translations of how one codes. He says of his interlocuters that they “use coding logic to provide a foundation for honing their ability to manage themselves and their practices in order to scrutinize their relationships with the state, private companies, and their valued hacker communities” (Beltrán, 2023, 33). Mexican coders, in short, interpret political agency through the lens of coding and how it enables action.Beltrán details how coding as practice grounds hackers in a particular type of social analysis, one that sees social practice as structured in ways that strongly parallel the division of labor in computing between coders who specialize in the back end (databases and architectural infrastructures) and front end (graphical interfaces, and so on); only a few are full stack programmers. Mexican hackers use this division as a metaphor so that they can analyze any situation as interactions between a back end and a front end in which any change needs to be understood as practices that resemble forms of recursive action in programming. To move smoothly between the different levels of the coding stack, certain kinds of interactions are highly valued. Beltrán suggests that “the principles of reuse, simplicity, consistency, efficiency, and the ability to shuttle between different levels of abstraction are core tenets of computer science and the metrics used to identify a talented computer programmer” (Beltrán, 2023, 43). The stack, in general, can easily become a metaphor for understanding the ties between social infrastructures and social performances. Thus, the principles involved in navigating a stack will be applied by the hackers to their efforts in other social contexts.He also argues that the coding notion of “loose coupling” is especially formative for how hackers understand what it means to be a transformative actor. A particular form of abstraction is crucial for coding—coders are constantly producing complex set of instructions and computations that can be transformed into a component that can then be used by other components. The component is black boxed, programmers need not know all that goes into the component in order to use it effectively. Quite complex edifices can be built through combinations of these black boxed components—loose coupling refers to the ways in which one component can be used in a wide range of processes, without any of these processes engaging with the internal functioning of that component—as Beltrán puts it in his book, “elements become ‘coupled’ and depend on each other with very little (or no) direct knowledge of each other” (177). Here Beltrán is drawing attention to how important reflexivity is for shaping social strategy. While social systems may have always been connected to each other at various moments through loose coupling, this has not necessarily been a conscious component of actors’ social analysis and thus their strategies. For coders, it is.Beltrán’s hackers view social transformation in these terms as well, seeing social processes as complex components available for abstraction that can then be interwoven with each other without necessarily understanding all that goes in to producing the component. This practice ends up shaping the ways in which they understand what kind of startups they can create for positive social change, as well as how they negotiate various subject positions available to them, as they will encounter being US American, Latino, or Mexican as a black-boxed component. Beltrán is ambivalent about how hackers use loose coupling as a conceptual map for how they might engineer social change. When hackers traffic in stereotypes, they might use a form of loose coupling to black box all the complexities underlying a social identity, turning it into a quick (and highly charged) shorthand that support very flat and even simplistic versions of diversity (see also Urciouli, 2022). Loose coupling at its worst allows for forms of abstraction that standardize and encourage social actors to ignore the nuances of context. At its best, these forms of abstraction lend themselves to imagining vibrant pathways to better worlds, admittedly precisely through the ways in which context and the complicated work of translating social practices can be reduced to broad brushstrokes.A different social order, and a different kind of otherwise, emerges when people begin with a different institutional structure: law rather than code. Here we describe prefigurative legality, an emerging theoretical focus in law and society circles (Cohen & Morgan, 2023) where people are engaged in a kind of DIY lawmaking process. As Davina Cooper (2023a, 18) observes “there are parallels here with hacking and tinkering.” Prefigurative legal actors too “reassemble or dismantle things to see how they work” (ibid). In so doing, they often produce interpretations of law that unsettle dominant normative understandings and applications and reconstruct them, but without seeking to break law or to fundamentally undermine its social authority—and yet at the same time, without seeking or inviting permission from authoritative interpreters or official decision makers (which coders will sometimes do at least vis-à-vis their funders).

In a recent article, Cohen and Morgan (2023) offered prefigurative legality as an analytical term to try and bring more consciousness to this legal practice. To illustrate, we turn to Randi Irwin’s analysis of Saharawian efforts to craft an alternative state within a refugee camp in the Western Sahara (Irwin, 2019, 2020, 2022). Saharawi live in a place replete with much desired phosphate, and unique as the only territory in the world recognized by the UN as a non-self-governing territory without an administering power (there are 16 other non-self governing territories). During Irwin’s fieldwork, establishing control over natural resources dominated Saharawi’s efforts to assert their independence from Morocco, and their yet unrealized claims to territory and self-determination. They had a constitution and other legal trappings that states typically have, they wanted to be ready for whenever they achieved statehood and they wanted to act in the present as if they were a sovereign state. As this was an ongoing project, they spent considerable effort revising the constitution-in-waiting to delineate mineral rights in the 2014 Mineral Code, devoting three years to legislative processes responding to changing economic pressures as though they already constituted an internationally recognized state government. Moreover, they entered into contracts with an Australian mining company, and into negotiations with other companies as though they had the authority to do so. For the companies, these contracts are just one of a number of future-oriented financial instruments that might or might not be realized. For Saharawi representatives, these contracts are some of the most strategically accessible forms through which they can act as-if their state exists. Like Beltrán’s hackers, Saharawi are engaged in a form of community-making; they form museums, television stations, and temporary universities as well as financial instruments, all in the interests of speaking like a state. They are also similarly producing shared imaginations of social transformation by coming together to create temporary interventions that call forth, even as they predicably fall short of, the enduring kinds of social change they wish for.

Cohen and Morgan (2023) sketch four characteristics of prefigurative legality. To briefly summarize, people engaged in prefigurative legal experiments often exploit the plural meanings inherent in legal terms. They interpret law creatively in ways that likely defy any official authorization—but not by acting as legal subjects making demands on the state but rather by ‘acting as if’ they already have legal power. By engaging in transgressive legal interpretations that do not fundamentally undermine law’s social authority, prefigurative legal activists also often ‘act notwithstanding’ their broad spread skepticism that law reform can secure the effects they desire under present political conditions. For this reason, people may bring a playful ethos to prefigurative experiments to temper their loss of faith with some hope that legality remains a desirable pathway towards progressive social change. But to build this path towards change, they also eschew familiar models of instrumental goal-setting instead, endeavoring to create alternative futures in the here-and-now. And yet such actors also often anticipate something beyond what they can currently realize. This something more follows from the relationships and practices that people build in the present even as people anticipate that what happens next is unknown and perhaps even likely to be overtaken by events. They simply “act anyway and in case” the seeds they are planting together will bear fruit of some sort in time (Cohen & Morgan, 2023).

Prefigurative legality is +at play when organizers enact People’s Tribunals to put states and corporations on trial for a variety of harms, and write “alternative judgements” that act as if the normative criticisms and transformations of otherwise worlds have already been accepted. A diverse range of sociolegal scholars and anthropologists are describing prefigurative legal practices combining elements of pluralism, acting as if, acting notwithstanding, and acting anyhow and in case. For example, Mohammad Afshary (2018) describes how in Egypt’s 2011 uprising, lawyers defended arrested revolutionaries in openly hostile police stations and courts as if these spaces embodied a radically different legal-political culture—intentionally prefiguring a postrevolutionary idea of legality as a common egalitarian value. Sameer Ashar illustrates how law clinics can “advance prefigurative thinking because of their position within, but at the edges of, both legal education and legal practice” (Ashar, 2023a, 881 emphasis added). He describes “a different kind of learning community and legal practice… accountable to movements and communities…” (883) as law students allied with workers in a packaging plant during the COVID pandemic and wrote imaginative legal documents to co-construct a legal story and analysis that acts “as if the rules and structures legitimizing solidarity, worker control of production, and community care already existed” (Ashar, 2023b). Davina Cooper collaborated with other academics as well as policymakers, NGO workers, and activists to craft legislation to abolish sex and gender from legal personhood in England and Wales. Such prefigurative law reform, Cooper (2023b) explains,

can be seen to roleplay the law reform process. But it also involves making real proposals. These proposals are not authorised by conventional authorities, and they lack formal pathways into parliament. But these absences do not only enhance their fictive qualities. They can also contribute to their realness as prefigurative proposals since they rehearse and trial horizontal, less pragmatic, perhaps even wilder ways of conducting legal reform discussion.

Prefigurative legality, then, is a different way of creating something new (ibid.)—to use legal form and meaning to construct an otherwise world.

Legal prefiguration contrasts with other forms of otherwises in how actors imagine their relationships to social orders and understand the kinds of practices that lead to change. When people practice legal prefiguration, they are engaging with the ways in which law is both outside of and constitutive of context. And they are attempting to reframe (or in fact, reperform) how precisely law constitutes a specific context—often from blueprints to guide action to a more open-ended process of social experimentation where change largely follows from the social relationships people build in the present (Machado de Oliveira, 2021). In part, for this reason, prefigurative legal experiments tend to happen in local and thinly institutionalized settings. For example, Dayna Nadine Scott (forthcoming) examines how Indigenous communities in Ontario’s Treaty No. 9 combine their own highly specific legal and cultural traditions with settler conceptions of jurisdiction to enact sovereign decision making over resource extraction by, for example, enacting their own licensing and trespass regimes. As a frame for thinking about the impact of what Scott calls prefigurative jurisdiction, she offers the metaphor of the mycelium, an underground fungal network that scales through diverse forms of replication rather than through singular forms of consolidation. Cohen and Morgan (2023) similarly recall the ripple effects of second-wave feminist consciousness-raising, observing how prefigurative legality builds on organizing traditions that insist on the power of localized shifts in subjectivity and community to catalyze changes in ecological, economic, and political systems (Gibson-Graham, 2002).

By contrast, hackers are focusing on particular techniques for blackboxing context, for fashioning forms of abstraction that can lead to new combinations without addressing the messy details of what precisely is being abstracted. Beltrán argues that this way of thinking allows the stack to be a metaphorical lens for understanding how one traverses scale in the social world. “Social scientists who research new computing technologies and their aspirational promises have proposed that in order for marginalized populations to infuse their own worldviews and future aspirations into a system, they must fully participate in and be adept at navigating all layers of the stack. The structure of the stack inherently hides conditions, keeping its range of possibilities from view. Becoming a full-stack code worker might help to uncover the stack and its liberatory possibilities” (Beltrán, 2023, 15; see also Lewis, 2016). Using the stack to understand sociality allows these hackers to see how implicit bias and unwelcome ethnocentrism can be baked into components that are then used by others at different levels of scale. In order to create the change they want, hackers understand that they might be facing the complex task of assessing hidden infrastructures of all kinds. That is, people’s reflexive understandings shape where they will focus their efforts to create social change.

Yet perhaps the most significant difference in reflexivity revolves around each groups’ relationship to instrumentality. Those devoted to prefigurative legality are committed to the idea that the means must reflect the ends of struggle—they act as if another world is not only possible, but present, not as an instrumental technique for bringing this world into being, but as a challenge to familiar ideas of legal instrumentality from the get-go. We venture that this commitment in part reflects how activists view their chosen material of social change—legalism—as “exceptionally fraught terrain,” knowing well how Western legality can function as a tool to advance repression, punishment and the interests of capital (Ashar, 2023b). Ashar, for example, cautions prefigurative lawyers to be ever vigilant against “threats of instrumentalization [and] commodification” (2023b). We also venture this commitment to legal performativity in the present reflects the nature of legal authority. Prefigurative activists play with state legal forms without conceding their interpretations to official decisionmakers in part to evade these decisionmakers’ jurispathic powers. Irwin, for example, explores how the creation of Saharawi-led legal regimes bypass the Moroccan state whose presence may otherwise be presumed to block such opportunities. For Cooper (2023a, 27), what emerges is a form of “slow law” analogous to “slow design’ which attends to design as creative, participatory, engaging, reflective, ambitious, and innovative … rather than an instrumental process that precedes, and is assessed in relation to, a specific product’s emergence.” Here, as in Irwin’s ethnography, the present may shape the future when the time is right.

Beltrán’s coders, however, have a far more ambivalent relationship to instrumentality. They might participate in hackathons as if what they are making will be built while knowing full well this will never happen. But in other moments, they are all instrumental rationality, pivoting repeatedly to find the right instrumental pathway towards their goals of letting their inventions loose on the world. There is no official decisionmaker to evade—the nature of coding “authority” is more diffuse and decentralized, more network- or market-based. Some will deal in stereotypes if this seems the path through which they can be successful, many will be willing to move between Silicon Valley and Mexican startups, although they will have as an ultimate goal, strengthening Mexico’s computing power. In short, coders are deeply immersed in strategic decisions that state and capitalism’s forms of instrumentality encourage, while prefigurative legal activists attempt to eschew this way of thinking.

These two approaches we describe reveal how central people’s reflexive understandings are for any analysis of people’s strategies for crafting better worlds. In Beltrán’s ethnography, hackers’ perspectives are so strongly shaped by their coding practices that they tend to see all social orders that they encounter through the lens of computer code. Even when this approach proves ineffective, as some hackers discovered in their romantic lives (Beltrán, 2023, 80–2), how they tried to fix the problems resembled strategies coders use in general to fix problems. Coding gave them a set of analytical tools for classifying and transforming all the social orders they navigate regularly. Prefigurative legal activists’ reflexive understandings led to a different relationship to social orders and to social change. They view the legal regulations structuring their everyday as polyvalent and underdetermined enough that they can enact alternative and more appealing interpretations. They are working within the framework of a particular social order to build an otherwise, rather than systematically interpreting all social orders through the conceptual lens of one. What one understands to be possible, in short, is deeply enmeshed in one’s social order-specific reflexive analysis of how the social world is formed, and what it takes to coordinate transformations.

Works Cited

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Acknowledgements

We would like to thank Fleur Johns, Jessica Katzentstein, Bronwen Morgan, and Shunyuan Zhang for their helpful suggestions. And much gratitude to Malay Firoz, Jessica Katzentstein, Caroline Parker, and Deniz Yonucu for all their organizational labor and inspiring interventions.