The International Journal
of Not-for-Profit Law

Volume 6, Issue 2, February 2004

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

"Organized" Civil Society and Its Limits

By Antonio Itriago and Miguel Angel Itriago*

Freedom of association is not respected in many Latin American countries. Many governments use the legal mechanism for registering civil society organizations (CSOs) as a means of impeding the creation and operation of such organizations. In these countries, the most important civil society entities are not the formal or organized groups, but rather the more numerous “simple associations” or “informal associations.” It can be misleading to talk of "organized" and "unorganized" civil society. An organized civil society sometimes proves to be a docile civil society, where the government controls CSOs from birth to death.  

Registration laws set out the requirements that a CSO must meet in order to take on legal personality. Some countries, such as Peru, Brazil, Venezuela, and Colombia, have relatively open, straightforward registration procedures. In other countries, the rules are far more restrictive. In some instances, the individuals who enforce these laws have tremendous discretion--akin to that exercised by Roman censors or officials of the Inquisition. Yet these countries claim to respect human rights.

Administrative recognition of CSOs stems from the Civil Code of Italy in 1865 and, further back, from the Napoleonic Code. Where it remains in force, the Napoleonic Code spawns most of the problems that confront civil society organizations today. It is absurd in this age to restrict CSOs' marketing, to require them to renew their legal recognition periodically, to limit their geographic reach, and the like. Such restrictions can diminish civil society to either an appendage of the government or a frail entity completely dependent on the government.

The most truly representative organizations of civil society in Argentina are not the most organized ones. Instead, power and representation reside in organizations that bypass the regulatory structures: those referred to as “simple” associations, informal and spontaneous creations. Remember that the ultimate authority in a representative system originates at the bottom, not the top. Representation is not something irrevocable that is imposed from on high. The communities that are purportedly represented by formal organizations may recognize those organizations as mere appendages of the government or as dependent on the government. That is to say, the organizations are blended into the same government from which the community seeks to distance itself or to which it seeks to exercise a right of representation. And people realize this--which may portend a day when organized civil society can become independent and solid.

That is a transcendent theme for the third sector in Latin America: in countries where legislation allows the government to recognize and dissolve not-for-profit entities, formal organizations do not truly represent civil society. People identify more readily with informal organizations, which have not had to submit to the complexity of registration and need not fear administrative dissolution. These organizations do not owe any favors to the government. They are truly independent.  

This subject also relates to the increasing importance of “networking” in the region. These networks--spontaneous, informal, flexible, dynamic, horizontally structured, interactive, and participatory--are the very essence of civil society. Science and technology have given organizations new opportunities for communication and integration, enabling them better to reflect and express the will of the community.

Today, then, the strength of civil society in a nation or a community depends on such factors as these:

• the organizations' structure and internal governance mechanism, whether democratic or otherwise;
   
• the role that CSOs play, through informal networking as well as more formal activities;
   
• the degree to which the organizations depend on popular support;
   
• the CSOs' role in proposing, formulating, applying, and executing policy on issues relating to their communities;
   
• official impediments CSOs face, such as registration requirements and regulation of their activities;
   
• their freedom to undertake commercial activities and to obtain financial credit;
   
• their capacity to advance their objectives through forming umbrella corporations and associating both vertically (federations or confederations) and horizontally (networks);
   
• and, broadly, the nature of the relationship--its equilibrium, coherence, and harmony--between organizations of the third sector and the other sectors.

Notes

* Antonio L. Itriago (alnilak@cantv.net) and Miguel Ángel Itriago (mitriago@cantv.net) are private lawyers in Caracas, Venezuela, who have written widely about civil society and the law.  A different version of this article appeared in the International Journal of Civil Society Law

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ISSN: 1556-5157