Beyond charity : outlines of a jurisprudence for civil society

There is not a single, coherent, jurisprudence for civil society organisations. Pressure for a clearly enuciated body of law applying to the whole of this sector of society continues to increase. The rise of third sector scholarship, the retreat of the welfare state, the rediscovery of the concept of civil society and pressures to strengthen social capital have all contributed to an ongoing stream of inquiry into the laws that regulate and favour civil society organisations. There have been almost thirty inquiries over the last sixty years into the doctrine of charitable purpose in common law countries. Those inquiries have established that problems with the law applying to civil society organisations are rooted in the common law adopting a ‘technical’ definition of charitable purpose and the failure of this body of law to develop in response to societal changes. Even though it is now well recognised that problems with law reform stem from problems inherent in the doctrine of charitable purpose, statutory reforms have merely ‘bolted on’ additions to the flawed ‘technical’ definition. In this way the scope of operation of the law has been incrementally expanded to include a larger number of civil society organisations. This piecemeal approach continues the exclusion of most civil society organisations from the law of charities discourse, and fails to address the underlying jurisprudential problems. Comprehensive reform requires revisiting the foundational problems embedded in the doctrine of charitable purpose, being informed by recent scholarship, and a paradigm shift that extends the doctrine to include all civil society organisations. Scholarly inquiry into civil society organisations, particularly from within the discipline of neoclassical economics, has elucidated insights that can inform legal theory development. This theory development requires decoupling the two distinct functions performed by the doctrine of charitable purpose which are: setting the scope of regulation, and determining entitlement to favours, such as tax exemption. If the two different functions of the doctrine are considered separately in the light of theoretical insights from other disciplines, the architecture for a jurisprudence emerges that facilitates regulation, but does not necessarily favour all civil society organisations. Informed by that broader discourse it is argued that when determining the scope of regulation, civil society organisations are identified by reference to charitable purposes that are not technically defined. These charitable purposes are in essence purposes which are: Altruistic, for public Benefit, pursued without Coercion. These charitable puposes differentiate civil society organisations from organisations in the three other sectors namely; Business, which is manifest in lack of altruism; Government, which is characterised by coercion; and Family, which is characterised by benefits being private not public. When determining entitlement to favour, it is theorised that it is the extent or nature of the public benefit evident in the pursuit of a charitable purpose that justifies entitlement to favour. Entitlement to favour based on the extent of public benefit is the theoretically simpler – the greater the public benefit the greater the justification for favour. To be entitled to favour based on the nature of a purpose being charitable the purpose must fall within one of three categories developed from the first three heads of Pemsel’s case (the landmark categorisation case on taxation favour). The three categories proposed are: Dealing with Disadvantage, Encouraging Edification; and Facilitating Freedom. In this alternative paradigm a recast doctrine of charitable purpose underpins a jurisprudence for civil society in a way similar to the way contract underpins the jurisprudence for the business sector, the way that freedom from arbitrary coercion underpins the jurisprudence of the government sector and the way that equity within families underpins succession and family law jurisprudence for the family sector. This alternative architecture for the common law, developed from the doctrine of charitable purpose but inclusive of all civil society purposes, is argued to cover the field of the law applying to civil society organisations and warrants its own third space as a body of law between public law and private law in jurisprudence.

Charities, civil society and the charity law reviews on the island of Ireland

This article considers the opportunity, presented by the coincidence of simultaneous charity law reviews in the two jurisdictions on the island of Ireland, for an adjustment of charity law frameworks to maximise appropriate and effective charitable activity within each jurisdiction,while also facilitating the coordination of some such activity between both. It examines the nature of civil society and charity law, and the relationship between them. The article argues that a creative legislative response to this opportunity could address themes of social inclusion common to both jurisdictions and thereby contribute to the consolidation of civil society on this island.

From Civil Strife to Civil Society: civil and military responsibilities in disrupted states

"The 1990s saw the United Nations, the militaries of key member states, and NGOs increasingly entangled in the complex affairs of disrupted states. Whether as deliverers of humanitarian assistance or as agents of political, social, and civic reconstruction, whether in Somalia, Bosnia, Kosovo, or East Timor, these actors have had to learn ways of interacting with each other in order to optimize the benefits for the populations they seek to assist. Yet the challenges have proved daunting. Civil and military actors have different organizational cultures and standard operating procedures and are confronted with the need to work together to perform tasks to which different actors may attach quite different priorities."--BOOK JACKET.

Charity law review and civil society : paving the way from alienation to social inclusion in Northern Ireland ; the resonance with experience in Australia

This paper considers the opportunity, presented by the forthcoming charity law review in Northern Ireland, for adjusting the charity law framework so as to focus charitable activity on the circumstances typical of societies in conflict or experiencing transition. This opportunity is one for broadening the definition of 'charitable purpose' to include activities directed towards forestalling alienation and facilitating social inclusion. It would include rehabilitating the victims of social confrontation and developing related services of advocacy, mediation and reconciliation. It argues that a creative response to this opportunity could address the current social inclusion agenda and thereby contribute to the consolidation of civil society in this jurisdiction. It suggests that the experience in Northern Ireland, as an exemplar of a society in transition, has a resonance with the experience in Australia. It further suggests that it could also have a relevance for approaching the management of tensions within or between nations where people may otherwise come to perceive themselves as alienated...

Charity and Civil Society

Charity remains a leading brand in society, continuing to command public goodwill and response. It is underpinned by a long tradition and law – both raising questions for the wider public as well as ‘specialists’, about ‘modernisation’ and coherence.

Global civil society and adult education for social change : a postcolonial perspective

Adult education plays an important role in global economic development and features prominently in debates about changing requirements of post-industrial knowledge societies. This dominant technical-instrumental understanding of adult education in public discourse masks the transformative function of certain types of adult education - that is, the possibilities of adult education to improve social justice issues such as workers’ rights, human rights, civic participation in governance and socially just development. Given the increasing social stratification between and within the North and South in the global era, the potential of adult education to effect social change has been rediscovered by organisations within global civil society, namely international non-governmental organisations (INGOs). The broad objective of this research was to carry out an in-depth qualitative case study of a human rights advocacy program provided by a Northern INGO predominantly operating within the global South. The study analyses how participants see this program in terms of its potential to contribute to progressive social change in their home communities across the Asia-Pacific region. The following questions guided the study: 1. To what extent does this adult education program challenge existing systems of domination and marginalisation? 2. How did completion of the program affect participants’ views of their abilities to facilitate social action within their communities? Data sources for this research were interviews with 19 participants and staff and questionnaires from 28 participants of the program from a variety of countries in the Asia-pacific region. The gap in the literature that this study addressed is that existing empirical research sidelines the analysis of the globalisation, adult education, and social change nexus from a perspective that takes the marginalised other seriously, tending instead to mirror the material subjugation of the South in discursive practices. Social change is highly context-specific and strategies to advance it depend on the way in which people understand their reality and are affected by adverse social conditions. The present study employed a postcolonial framework that provided a holistic approach to analysing adult education for social change inclusive of material, political, and social conditions and the interplay between these from the local to the global level. The program convincingly exemplified an example of adult education for counter-hegemonic resistance against the dominant neoliberal discourse. It achieved this by enabling participants, based on Freirian pedagogical principles, to locate the problem of social change and frame their strategies to address it within mutually constitutive local and global developments and the discourses that describe them. It provided the underpinning knowledge and skills for effective advocacy and created opportunities to build networks between various stakeholders. At minimum, most advocates accord their participation in the program a supporting role in enhancing their ability to examine causes for social injustices and ways to address these. Some advocates even regarded their program participation as fundamental in understanding these issues. Almost all participants reported an increased skill-set that enabled them to become more effective advocates.

More food banks than MacDonalds : the future of civil society?

The title of this paper came out of a conversation I had on a recent trip to Canada. I had gone there because I wanted to spend a bit of time seeing how non-government organisations in Canada were faring in this age of re inventing government. Osborne and Gaebler (1992) I wanted to try and understand whether there were any lessons in the Canadian experience, that might be relevant for Australia. As I hope to demonstrate while there are both similarities and differences, the questions facing both nations have a remarkable correspondence.

Governing civil society: How literacy, education and security were brought together

This study questions how the categories of security, education and literacy were brought together as related elements of a whole-of-government strategy in the production of civil society. Drawing on an analysis of key political texts, the study argues that the categories of education and literacy have been used in diverse ways in the production of national, social, economic and geopolitical security interests. As dialogue about security has intensified, rationalisations about the national interest have engaged notions of security leading to the legitimation of a diverse set of policy instruments, strategically used to contain the rise of complex social forces and protect homogenous cultural values.

Trade unions, civil society organisations and health reforms

This article provides an analysis of resistance to neoliberalism and commodification in the public healthcare sector as seen from a trade union perspective. It uses recent research on social-movement unionism and new labour internationalism to structure a series of case studies examining resistance to different dimensions of healthcare commodification in four countries. The range of alliances trade unions are making do not fit tidily into one model, but give insights into the movement elements of trade unionism. This dimension must be strengthened, but can also be in tension with collective bargaining and other institutional processes. How to constantly reconcile these different positions is the future challenge facing trade unions.

Public religions and civil society: the case of London Methodism

Amendments to secularization theory have brought the issue of public religions to the fore in recent years. In particular, the work of Casanova and Beyer has maintained the importance of functional differentiation whilst pointing to the flow of religious discourses across social boundaries. These issues, however, have received little ethnographic attention, such that many of the problems associated with theories of differentiation and globalization have not been engaged in a sustained manner. Research within black majority London Methodist congregations is drawn upon to suggest ways in which these theories can be reconsidered. Three related issues are focused upon: the continued importance of the nation-state (including national stratifications); the importance of a practical approach to religion, such that discourses are understood as ‘practical discourses’; and the importance of not privileging religion by reifying it in functional terms. These considerations have ramifications not only for secularization theory, but the general field of the sociological study of religion.