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The International Journal
of Not-for-Profit Law

Volume 10, Issue 1, December 2007

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

The Shifting Landscape for American Not-for-Profit Organizations

Counterterrorism Developments Impacting Charities
Kay Guinane

NGOs Respond to USAID's Proposed Anti-Terror Screening
Sarah R. Eremus

Solving the Necessity Conundrum: What the Drug War Can Teach Us About Due Process for U.S. Charities in the Fight Against International Terrorist Financing
Josh D. Friedman

Good Governance Practices for 501(c)(3) Organizations:
Should the IRS Become Further Involved?

Thomas Silk

Governance Is Key Issue in Regulating Charities,
IRS Official Tells State Leaders

Grant Williams

Articles

International Treaty Protection of Not-for-Profit Organizations
Luke Eric Peterson and Nick Gallus

Notification or Registration?
Guarantees of Freedom of Association in Non-Democratic Environments: Case Studies of Lebanon and Jordan

Marc Makary

Somewhere in Between:
Conceptualizing Civil Society

Benny D. Setianto

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Somewhere in Between: Conceptualizing Civil Society

Benny D. Setianto1

The notion of civil society reemerged in political and sociological theories during transitions from authoritarian rule toward more liberal democratic governments in Eastern and Central Europe, South America, and, recently, Asia and Africa. Many struggles against communist and military dictatorships have revived the concept of civil society.

Despite wide use of the term civil society, its definition remains unclear, or at least, in Cohen’s words, “there is no sufficiently complex theory that is available today” (Cohen & Arato, 1992). In characterizing the difficulties in defining civil society, some quote U.S. Supreme Court Justice Potter Stewart's remark about obscenity: “I know it when I see it.” (Levin, 1997; Meis, 2004). Some further believe that fundamental differences exist between civil society in the developed and the developing world (Bestor, 2004; Scott, 2003). Others contend that civil society varies at the conceptual level: because it is historically bounded, different societies have different concepts (Rosenblum & Post, 2002). Commentators have noted the vagueness of the terminology and the variations in what it connotes for different thinkers (Beem, 1996; Green, 1999). The London School of Economics and Political Science (LSE) has tried to capture the “conceptual essence” of civil society, yet LSE's definition, like everyone else's, remains contentious (LSE, 2001).

Furthermore, the revival of the notion of civil society has occurred in tandem with attempts to theorize the new formal and informal institutional arrangements of society beyond the state (Jessop, 1998; Swyngedouw, 2003). Based on the distinctions between civil society as a movement and an institution, Arato concludes that civil society must be securely institutionalized before becoming a key, long-term terrain of participatory politics (Arato, 2000). Considered theoretically dead after Marx, civil society has become “the new cause célèbre in political thought” (Beem, 1996) as the arena for arranging society with or without the government. Again, this tends to simplify the relationship between civil society movements and democracy.

The revival of civil society in opposing military and communist regimes is seen as opening the door to more liberal democracies. However, it is not easy to sustain that position. Once the civil society participants changed roles and became “founding fathers” of the new state, they obviously no longer opposed the state. Therefore, Lindahl suggests that we distinguish the roles of civil society before and after a democratic transition (Lindahl, 2002). Vaclav Havel or Lech Walesa, in this view, is “a dissident-intellectual-turned-politician.”

In this article, I will examine the meaning of civil society from the perspectives of different thinkers. First I will compare civil society theory with the state of nature, political society, and economic society theories. Then I will examine the role of civil society in different democratic transitions.

Civil Society vis-à-vis the State of Nature

Current understanding of civil society usually refers to the public sphere, set apart from the state and the market; however, it was not always so. In the Greek city-state, Polis, Socrates asked how people should reconcile their individual needs with the needs of the society. In addressing this question, Socrates employed a dialectic method in which the arguers test propositions against other propositions in hopes of uncovering the truth (O'Brien, 1999). Individuals’ arguments were tested against societal arguments to find the proper balance – a civic virtue that would produce a society called a societas civilis, in contrast to barbaric society.

Concurrently, in Rome, the individual who participated in the public realm was viewed as participating toward civitas (city-state). The fulfillment of civic duties determined the civic virtue of individuals (MIHAN, 2000). It could be concluded that some societies existed outside civitas and others inside civitas. Those inside civitas might be called civitas societies, in which each individual is bound by civic duties as civic virtue.

Going further, Plato asserted that in a just society, citizens dedicate themselves to the common good, act virtuously and wisely, and practice the occupation for which they are most suited. Such a society should be led by "the enlightened one." The philosopher-king, who returned to the cave after seeing the light outside, could make decisions based solely on the common good (Mclean, 1997).

Contrary to the suggestions posed by Plato, Aristotle first recommended that a state be governed by the middle class, those who are likely to strive for equality and who are moderate in their individual aspirations. Later, though, he asserted that governance must be performed for the common good, in which all can participate (Aristotle, 1967). Hence, democracy is preferable to oligarchy. Moreover, he stressed two aspects of liberty served by democracy: the opportunity for the individual to participate in making public policy, and the individual's freedom, protected by constitutional law, from intervention by the State. Societal governance, in his view, induced the lower units to achieve their goals through responsible, cooperative action, goals that they could not achieve by acting alone. He also strongly stated that the individual depends on the community in order to live a truly human life, and even that the State is a natural creation that precedes the individual (Mclean, 1997). In this way, Aristotle identified the nature of the sociopolitical order as a koin nia politika, or civil society. He presupposed that society had multiple forms of interaction, association, and group life.

St. Augustine shifted the natural law of society from one based on reason to one based on divine rule. Fear of God (and of churches) became the basic foundation of civic virtue, law, and order of the society. To be a civilized society was to be the city of God. Therefore, churches were seen as representatives governing the society. Civil society meant simply society under the protection of God and submitting to God’s divine rule as manifested in the church’s decisions and policies.

The differences in the concepts of God’s society and Aristotle’s civil society were reconciled through the work of Thomas Aquinas in the thirteenth century. He proposed that “love thy neighbor” provided a guideline to treat all people alike. Furthermore, building upon Aristotle’s NicomacheanEthics, Thomas proposed that human life was more than a cyclical return to nature; rather, each life had sacred meaning and eternal import. By combining Plato’s participation and Aristotle’s ethics, Thomas stressed civic manners: each individual must consciously commit to cooperatively strive toward a common goal in order to create a civil society.

In the sixteenth and seventeenth centuries, Thomas Hobbes and John Locke argued that society was not a work of nature but rather the result of a social contract (Colas, 2002). For Hobbes, the state of nature was the natural order, in which people followed their emotions rather than reason. Such people would fight, “all against all,” to protect their freedom. They would need agreements in order to create peace, and then an institution to preserve it. This institution arose through a contract between individuals. Then and only then could human freedom flourish under the protection of the State, which kept the peace and guarded civil society (Pietrzyk, 2001).

In the state of nature, individual fought individual, whereas in civil society, the State maintained peace in a community of people acting in a civic manner. By contrast to the Aristotelian assertion that people entered society because they were naturally sociable, Hobbes asserted fear drove people to the covenant. The covenant created a condition in which the state of nature gave way to civil society. Thus, civil society was not merely the opposite of the state of nature; it represented an escape from the state of nature, achieved when free, rational people entered into an agreement. For Hobbes, civil society integrates all lawmaking and executive power in a single body.

John Locke moved forward, arguing society results from a social contract. Locke argued that the State should not be seen as a single body, as Hobbes had done. Instead, Locke differentiated between government and society, with the goal of preventing the power of government from threatening the rights of the society (O'Brien, 1999). Locke viewed government as a unitary outgrowth of the freedom to form an association. Thus, he juxtaposed civil society against both the state of nature and the government:

Wherever therefore any number of men are so united into one Society, as to quit every one his Executive Power of the Law of Nature, and to resign it to the publick, there and there only in a Political or Civil Society.... And this puts Men out of the State of Nature into that of a Commonwealth

[Locke as cited in (Colas, 2002)]. He tried to step away from Hobbes by viewing the state of nature as potentially peaceable, whereas the Hobbesian, lawless state of nature represented the state of war.

Locke was inconsistent when he compared the dissolution of legislative power to the dissolution of society (Cohen & Arato, 1992). He asserted that dissolution of legislative power did not necessarily mean the end of society. Therefore, one could conclude that he simply distinguished the State from the society. In particular, he separated religious doctrine from the State. Churches remained autonomous. This represented an embryonic idea of civil society as a model for government.

By contrast to Locke's expansion of the rights of man into the rights of property, Rousseau argued that the introduction of private property, which focused on the rights of the individual and neglected the common goods, ignited the state of war among the people. To avoid such war, he proposed a new social order that would provide equality and freedom for all. This new social order collected individual forces into a supreme power that could govern, enact laws, protect its members, and maintain harmony. The State, as a supreme power, would be the arena for defining the common good and the institution through which individuals would willingly obey the general will (Colas, 2002; O'Brien, 1999). In this view, then, the passage from the state of nature into civil state procedures coincides with the replacement of instinct with justice.

Ferguson, differing with Hobbes, believed that “society is the natural state of men” (Pietrzyk, 2001). He saw political society as the natural result of men’s experiences since birth. Civil society was, then, a society polished and refined, characterized by a certain stage of social, political, and economic advancement. For Ferguson, not all society could be called “civil.” Only those in which individuals enjoy civil liberties protected by the government could qualify.

Although Ferguson considered commercial society the most advanced stage of social development, he acknowledged the dialectic of virtue and corruption in that society (Ferguson, 1966; Pietrzyk, 2001). Thus, civil society might decline if commerce corrupted individuals' republican virtues. In this respect, Ferguson implicitly distinguished an economic society that still practiced republican virtue, which he called civil society, from one that did not, which he called “tribesman” (Ferguson, 1966). He also did not view civil society as opposing the state of nature, in Hobbes’s terms, but as opposing the rude nation. He believed that through governmental policies, education, gradual knowledge and development, rude society might be transformed into civil society.

Thus, while rejecting the idea of social contract as the basis of civil society and the asserted Aristotelian civic tradition, Ferguson envisioned the shift of society from rude or barbaric one into civil society. In doing so, some might say he viewed civil society face to face with the state of nature or barbaric nations. Additionally, he developed a new discourse about modern commercial society, in which active participation and citizen virtue intertwine with concepts of freedom, property, and justice derived from the natural law tradition.

Kant’s position differed somewhat from Ferguson's. Kant insisted on the ideas of social contract and property as the just and moral bases of civil society (Kant, 1995; Pietrzyk, 2001). He took no position on whether humans are inherently bad, as Hobbes believed, or good. In balancing the use of coercive power by the State with individual freedom, Kant suggested the need to accept a political authority to achieve a condition of justice and rights. Accordingly, the main purpose of civil society is to force human beings to respect one another’s rights. Kant might also be included among scholars who see civil society as more or less a civil state, with no sharp separation between state and society. Regarding Kant, Pietrzyk concluded that “civil society cannot exist without the state and is often meant by him as a political society with its institutions such as a public law or the representative authority.”

To sum up, this section traces the historical idea in which civil society is seen as a model of societal governance, arising in the shift from the state of nature to the contractual society and forming a government based on civil liberties and rights.

Civil Society and Political Society

Like Ferguson, Smith believed that the binding principle of civil society is a private morality, predicated on public recognition by one’s peers, joined through bonds of shared moral sentiment (O'Brien, 1999; Smith, 1976). He went further by developing the idea of civil society as a necessary “safety net” for those endangered or damaged by the interplay of market forces and the dislocation and unemployment that they generate. In aiming at social promotion and protection of the economically disadvantaged, Smith saw civil society as a realm of altruistic activity guided by moral affectivity (Mclean, 1997).

Using the invisible hand argument, moreover, Smith conceived civil society as not only a refuge from the economic realm but also a wellspring of economic abilities. Civil society emerged as a sphere in which individuals could express their human existence as well as show that commercial society has not corrupted their humanity. Smith also recognized what Marx later called alienation, the sick condition faced by the laboring poor unless the government takes some pains to prevent it (Smith, 1981). However, instead of relying on the authoritarian State, as Hobbes did, Smith believed that each individual has an innate tendency to respect the rules of natural justice. This tendency goes along with the natural human desire to better one's condition, the accomplishment of which requires some private liberty to deploy resources and skills. The role of the government, then, is not to suppress liberties but to guarantee them.

Thus, in Smith’s view, liberal commercial society requires and encourages civic virtue. For him, government emerged gradually, restrained by rules. In this respect, Smith laid the foundation for civil society as an economic society separate from the State.

Hegel acknowledged the rights of individuals and stressed that those rights can thrive when they belong to the actual ethical order. He distinguishes, first, the family, the natural sphere of the ethical world; second, civil society, the achievement of the modern world and ethical life; and finally, the state, an objective guarantor of universal freedom. Therefore, Hegel put civil society somewhere between family and state (Mclean, 1997). He considered civil society “the embodiment of universal egoism,” in that, as in economic life, individuals use the needs of others to satisfy their own needs. Civil society was seen simply as society minus the State, which meant the so-called economy was part of civil society (Shaw, 1999). Primarily in the economic sphere of private affairs, individuals would seek to satisfy their needs. He considered corporations, outgrowths of the freedom to associate, essential to the structure of modern freedom. Further, he included public authorities in civil society, because they ensure the safety of persons and property. Following Smith, Hegel underlined the importance of the conflicting nature of the division of labor (Pietrzyk, 2001).

Because the State represented universal freedom, civil society depended upon the State for its existence and preservation. Hegel believed that as the embodiment of egoism, civil society is unstable. For him, individual freedom originates in the State, whereas modern-day liberals put freedom outside the State. This freedom, in which individuals and groups pursue conflicting interests, can be overcome only by an ultimate authority. Furthermore, for Hegel, civil society cannot be separated from economic society. Social conflicts over rights and needs have to be solved; this is a job for the State, society's supreme entity. The State is an end in itself, as the highest morality, whereas civil society’s ultimate end is to protect its members. Later, this idea was used by Hefner, who included business associations as part of civil society, entitled to protection of their rights and interests (Hefner, 1998).

Thus, for Hegel, the interests of individuals in civil society could be distinguished from the interests of the State. Civil society might be seen as on par with the State, although if their interests conflicted, the State would prevail.

Using Hegel’s description of civil society, especially of the first part of the system of needs, Marx prefigured his analysis and critique of the capitalist State. He asserted, that “Civil Society embraces all the material relations of individuals within a definite stage of development of productive forces” (Bobbio, 1987). In contrast to Hegel's suggestion that the state prevails upon civil society, Marx saw abolition of the state as a desideratum to be achieved after revolution.

Marx asserted that civil society is bourgeois society, in which people treat one another as means to their own ends. Furthermore, he saw civil society as a means to weaken the feudal order and concentrate power in the hands of the new class, the bourgeois.

Furthermore, Marx saw civil society as the arena of class conflict between the bourgeoisie and the proletariat. In this way he tried to highlight how socioeconomic distinctions constituted “the differentiaspecifica of stratification of modern civil society” (Colas, 2002). This differentia specifica provided a crucial precondition for the emergence of civil society: the separation of the private sphere of production and exchange from the public arena of the State. In this way, civil society is associated with the private realm, the relations among individuals that developed in the bourgeoisie only. For Marx, too, this also resulted in the evolution of the State as an institution separate from economic society.

Gramsci, also following the Hegelian approach in distinguishing civil society from the State, has located those two entities in the super-structural sphere, unlike Marx, who placed civil society in the structural sphere. Bobbio asserted that for Gramsci, civil society is “not all material relationship (which means a base) but all ideological and cultural relationship; not the whole of commercial and industrial life but the whole of spiritual and intellectual life” (Bobbio, 1987). In other words, Marx saw Hegel’s civil society as economic relationships (the system of needs) and therefore on the structural level, whereas Gramsci understood it as a super-structural concept that, along with the family, constituted the ethical roots of the State.

In this respect, both Gramsci and Marx believed the historical development of society occurred in civil society and not in the State, as Hegel had suggested. In civil society, all economic relationships shape history (as Marx suggested) or the interpretation of history (ideological and intellectual life), which in turn influences the future. The State, “which is exist up to now, is a dialectical unity of civil society and political society.” Moreover, the State's ultimate end is the absorption of political society into civil society, as a result of civil society's enlargement as a hegemonic force.

Furthermore, Gramsci suggested that civil society occupies an autonomous space in the system and “appears as the third term, due to its being identified, no longer with the state of nature, nor with industrial society, nor generally with the pre-state society but with the factor of hegemony” (Hoare & Smith, 1989). Thus for Gramsci, civil society became a complex entity, standing on equal footing with not only the state of nature and the civil state, but also the church and political society.

Civil Society as “Somewhere in Between” the Economy and the State

As mentioned earlier, Gramsci portrays civil society as the arena, separate from state and market, in which ideological hegemony is contested. This implies a spectrum of social organizations as well as community organizations, which both challenge and uphold the existing order (Lewis, 2001).

The current revival assigns civil society various functions. Arato notes the evolution of civil society from social movement to political party and finally to ruling party (Arato, 2000). In Russia, Zbigniew Rau, as quoted in Hikam, suggests viewing civil society as a historical development that requires a public space for individuals or groups to join, discuss, or compete to advance their private interests (Hikam, 1999).

Reflecting on the struggle to achieve democracy in South Korea, Han Sung Joo views civil society as a legal framework that provides the following: a space to protect individual rights; freedom of assembly apart from the state; a public sphere in which people can express their views; an organized society that respects specific norms, identity, and culture; and a space for independent and responsible social movements to become the "core group" of society.

Joo further cites four requirements for the emergence of civil society (Rozak, Sayuti, & Syafrani, 2003): (1) recognition and protection of human rights, especially the right to assemble, guaranteed by the rule of law; (2) a public sphere that allows anyone to articulate their political opinions; (3) social movements, based on specific norms and culture, which work to advance their interests in the public sphere; and (4) a core group of people, rooted in the society, who can mobilize others.

Kim Sun Hyuk, also drawing on the South Korean experience, describes civil society as independent movements and free associational groups that, through political actions, can defend their interests in the public sphere (Rozak et al., 2003). This description stresses the importance of free and independent associational groups apart from the state. It also requires a public sphere as an arena for political contestation.

In portraying the current movement in Japanese village areas, Suwondo similarly uses Chandhoke’s theory to set forth four conditions for civil society to emerge (Suwondo, 2003): (1) civil society must be seen as a politically participatory realm that helps ensure state accountability; (2) civil society comprises representatives of free associations; (3) the state must recognize and protect human rights; and (4) all individuals must be protected by law as members of civil society.

Suwondo also asserts civil society must be positioned carefully between state and market. Otherwise, civil society may enfeeble the state and provide opportunities for the dominant class to control society (Suwondo, 2003). If that class controls it, as neoliberals suggest, then civil society will be seen as nothing more than a space for promoting the dominant class's principal cause, the laissez-faire approach to markets. Civil society will thus come to mirror the supply-and-demand characteristics of the free market.

Learning from the eruption of violence in Indonesia, Suwondo also suggests a danger in promoting the civil society through maximizing individual freedoms: namely, that the dark side of human nature may turn to violence. Civil society organizations may adopt violent means for advancing their interests and settling their differences in particular circumstances: democratic values are inadequately understood; the collapse of an authoritarian regime has led to a weak state; and freedom has ignited euphoria. Violence in turn will jeopardize democratization (Suwondo, 2003).

The North South Institute in Canada similarly defines civil society using “the notion of terrain, a place where the state, the people, and the market interact and where the people wage war against the hegemony of the market and the state” (Institute, 1999). Whereas civil society is customarily viewed as a force opposing the state, the Institute emphasizes that it must likewise be viewed as a force opposing the market.

The Institute then distinguishes civil society as structure from civil society as process. As structure, civil society is a component of society, along with the state and the market. Citing UNDP, the Institute also notes that civil society organizations are shaped to fit their social base, constituency, thematic orientations, and types of activity (Institute, 1999; UNDP, 1993). Though civil society organizations participate in the political arena, observes Diamond, they do not necessarily strive for political power, unlike political parties (Diamond, 1991). Diamond also distinguishes civil society, which focuses on public life, from economic society (the market), which focuses elsewhere.

Diamond further suggests characteristics of civil society that hold particular significance in terms of advancing democracy (Diamond, 2003).

First, how do civil society organizations govern themselves? If they practice democratic governance internally, operate transparently, and remain accountable to their constituency, then they are likelier to play an important role in democratizing society.

Second, do civil society organizations respect democratic values as they pursue their goals? Democracy's prospects decrease if civil society organizations reject the rule of law or undermine the state by corrupting democratic methods.

Third, what underlies the power of civil society organizations? If the power rests on charismatic leaders, rather than internal democratic processes, organizations are less effective at consolidating democracy.

Fourth, how have civil society organizations defined their relationship with the state? If the organizations try to change policy by gaining more power than the state, they will simply become political parties. Civil society organizations protect the public sphere by allowing members to pursue diverse interests, whereas political parties try to focus members on the party's goals.

If these four characteristics are present—if, that is, civil society is strong, whether through structures or processes—then it can help consolidate and develop democracy.

Conclusion: Daring to Define Civil Society

Based on the foregoing, civil society remains a vague, ill-defined concept, notwithstanding its frequent application to the wave of democracy in Latin America, Asia, and Eastern Europe (Anheier, Priller, & Zimmer, 2000). Even so, civil society can be defined by three characteristics.

First, it operates under the rule of law, not the state of nature.

Second, civil society lies between the state and the market, where state interests and market interests are contested. Civil society thus stands in opposition to the market as well as to the state, and civil society is also influenced by both forces. When a variety of civil society organizations emerge, some may be arms of the market, such as business associations and entrepreneur organizations; others may be arms of the state, such as government-owned non-governmental organizations (GONGO). Salamon terms this space between the state and the market the third sector (Salamon & Anheier, 1997).

Third, voluntary associative relations dominate civil society. As a consequence, civil society is a sphere of free public debate. Civil society is thus more than associations, because any association might be influenced by the market or the state (Warren, 1999). Rather, the members of civil society organizations hold diverse interests. As a result, civil society's pluralism is maintained.

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Notes

1 Benny D. Setianto, an attorney, is Researcher and Senior Lecturer at Catholic University of Soegijapranata, Indonesia.

 

 

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