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The International Journal
of Not-for-Profit Law

Volume 6, Issue 3, June 2004

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

Table of Contents

Letter from the Editor

Accountability and Transparency

Introduction--Coming Clean: Civil Society Organizations at a Time of Global Uncertainty
Kumi Naidoo

International Humanitarianism: The Dark Sides
David Kennedy

On the Issue of Trust
H. Peter Karoff

Fostering Accountability in Zimbabwean Civil Society
Ignatius Adeh

Canadian Federal Budget Increases Transparency for Charities
Robert B. Hayhoe

The Crisis Facing Associations and Other Nonprofits in the United States
John H. Graham IV

Articles

Charities and Compliance with Anti-Terrorism Legislation in Canada: The Shadow of the Law
Terrance S. Carter

Corporate Philanthropy and Law in the United States: A Practical Guide to Tax Choices and an Introduction to Compliance with Anti-Terrorism Laws
Thomas Silk

Legal Mechanisms for NGO-Government Partnership in Ukraine
Alexander Vinnikov

The State-Civil Society Relationship in Kazakhstan: Mechanisms of Cooperation and Support
Vsevolod Ovcharenko

Comment: Defining Civil Society
Miguel Angel Itriago

Reviews

BETTER TOGETHER: Restoring the American Community
By Robert D. Putnam and Lewis M. Feldstein
And
THE GREATER GOOD: How Philanthropy Drives the American Economy and Can Save Capitalism
By Claire Gaudiani
Reviewed by Michael Edwards

A VOICE FOR NONPROFITS
By Jeffrey M. Berry with David F. Arons
Reviewed by Michael Bisesi

THE GOVERNANCE OF NOT-FOR-PROFIT ORGANIZATIONS
Edited by Edward L. Glaeser
Reviewed by Peter Frumkin

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Editorial Board

Comment: Defining Civil Society

By Miguel Angel Itriago*

The civil participation that approved the 1999 Venezuelan Constitution completed a process that the Third Sector began many years ago. The Constituent National Assembly, to its credit, consecrated this right, but in doing so it merely responded to what was already in the air. Venezuelans would not have accepted less after what had happened in previous years.

This Venezuelan experience, with the discrete roles of the state and the Third Sector, gives rise to a difficult question: What is civil society?

There is no universal concept of civil society, either at the national level or internationally. Instead, civil society is dynamic and variable. Consider Venezuela and all the other Latin American countries now undergoing evolution, in which no truly organized civil society yet exists. If a single model of civil society were to apply everywhere, then we would be facing the absurdity of having countries without civil society. In truth, these countries have many civil societies, as the civil associations, foundations, and other associative structures of Venezuela are learning.

More broadly, to live among others is a mandate of human nature, for man is a social being. We cannot thrive in isolation; we have to develop in society. This primary thread has over time interwoven with more fibers and more knots, forming the social tapestry that we know today as civil society. More accurately, one should say civil societies, because an infinite number of them exist: local, municipal, national, international, and even frontier, as well as thematic societies, such as the Venezuelan Anticancer Society and Asocirpla, which takes care of burned children.

In essence, civil society is a network, the same as most modern association entities. Viewing civil society as a network helps explain and illuminate the concept. Just as the elements of a network may not share identical interests, the interests of a particular civil society may not coincide with those of the concentric circle immediately superior or inferior to it. The construction of a highway may not serve the needs of the civil society of a residential area, for example, while it will serve the needs of the municipal civil society.

Further, a person who does not belong to any traditional institution is nonetheless a member of civil society. For example, an army officer may not participate in any organizations, but he nonetheless constitutes an element of civil societies as a member of a family, community, neighborhood, and even nation. The fact of belonging to the army does not prevent him from forming and stating opinions as a citizen.

Many common definitions of civil society fall short. Perhaps because of ignorance about the importance of the network aspect, many rely on exclusion criteria. The Venezuelan Supreme Court of Justice has adopted such a definition. It is preferable to develop positive definitions that suit the conditions of each country.

Likewise, civil society cannot be defined as a simple space, as a struggling area, or indeed as anything material--the sort of vague and inaccurate definitions that some commentators use. Rather, civil society is far more valuable: it is a structure full of life, of the lives of many human beings, and of synergetic interactions among associations. It is a spontaneous, dynamic, flexible, interactive associative structure of the social substratum.

Nor should civil society be defined as a group of actions. Action is the effect or result of civil society, but civil society is the actor, not the action. Instead, civil society is a group of persons and organizations in a given time and place that, at least tacitly, represent other persons and organizations in the community and seek to improve community conditions.

Fortunately, the Venezuelan Constitution does not try to define civil society; otherwise it would make the same mistakes as the Supreme Court of Justice. The issue here is not merely the accuracy of a given definition, but also the responsibility for articulating a definition. It is not the state that legitimates the civil society, and so it is not the place of any law to define civil society or to declare who represents it.

On the contrary: civil society owns the state. Accordingly, not even the Constitution may limit or curtail civil society. After all, civil society lies at the heart of the process that prepared and approved the Constitution.

Civil society, in other words, is not merely a collective subject of rights; as the owner of the state, it occupies the topmost social level. Civil society thus goes beyond the juridical and enters the realm of the social, as the Constitution itself recognizes when, for instance, it establishes the Social State of Law.

The representative function of civil society cannot depend on any written power. That would be absurd. We all live in interaction with others, and we do not ask those with whom we deal for some power of attorney legitimating or crediting their representation.

On this matter we must recognize a new concept of representation. The criteria of law will never bring us to agreement about the validity of civil society representation. It is, essentially, an ethical issue. The social representation is based in leadership that the community accepts. If doubts arise about the representation, then it makes sense to exercise power, not in a document but in a statement of social authority. A self-regulatory system alone can provide this necessary element of ensuring that representation remains valid. As an owner of the state, civil society cannot tolerate any different system.

Notes

* Miguel Ángel Itriago (mitriago@cantv.net) is a private lawyer in Caracas, Venezuela, who has written widely about civil society and the law. This article is adapted from a speech he delivered in May 2003 at the seminar “Democracy, State, and Citizenship,” organized by SINERGIA, Asociación Nacional de Organizaciones de la Sociedad Civil (National Association of Organizations of Civil Society), and by the Goethe Institute Inter Naciones.

 

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