Prefigurative legality: Transforming municipal jurisdiction

Abstract

This paper argues that prefigurative legality plays an important role in crafting municipalist strategy. We explore the experience of the City of Sydney in relation to new municipalism, focusing on its trajectory as a ‘boundary case’ that generates incrementally accrued transformative potential under conditions of muted political partisanship. The paper argues that at least in a boundary case such as this, legality can be a key and underappreciated component of transformative strategy, particularly if its prefigurative potential is appreciated. Prefigurative legality as a component of strategy is less about reconfiguring forms of state practice and more a means of institutionalising substantive policies and state practices in ways that extend the connection between community and state. As such, prefigurative legality has a deeply ambivalent relationship with the state and is both more incremental and more inclined to be ‘merely progressive’ than the prefigurative politics of radical municipalism. Nonetheless, we argue that legality still acts as an important and underappreciated pivot between power and resistance, especially where legal pluralism and multi-scalar indeterminacy are salient. The paper makes this argument while tracking the City of Sydney’s engagement with three dimensions of legality – delegated jurisdiction, legal pluralism and multi-scalar indeterminacy – and the ways in which these trajectories intersect with state and national government responses. While the Sydney case may fall just outside the boundaries of ‘classic’ instances, the role of legality in this setting generates valuable insights for the longer-term trajectories of more radical versions of new municipalism.