Право/9.Гражданское право

Koszhanov А.S., candidate of legal science, professor of the KEU.,

Kopbulov R.A., master of laws, a senior lecturer in the chair

of legal regulation of economic relations of KEU.,

Kusainova S.Zh 4th year student

Karaganda Economic University, Kazakhstan

THE CONCEPT OF "CIVIL SOCIETY" AND ITS MAIN INSTITUTIONS

There is no generally accepted definition of civil society. Civil society refers to the arena of unforced collective action around shared interests, purposes and values. In theory, its institutional forms are distinct from those of the state, and market, though in practice, the boundaries between state, civil society, and market are often complex, blurred and negotiated. Civil society commonly embraces a diversity of spaces, actors and institutional forms, varying in their degree of formality, autonomy and power. Civil societies are often populated by organizations such as registered charities, development of non-governmental organizations, community groups, women's organizations, faith-based organizations, professional associations, trade unions, self-help groups, social movements, business associations, coalitions and advocacy groups.

Measuring civil society strength has become entangled in competing definitions of civil society. A more productive approach begins by considering civil society from the perspective not of what it is but what it does. Civil society functions – articulating citizens’ interests and demands, defending their rights, and meeting their needs – can be performed by a variety of institutions and organizations, not all of which are or need to be detached from the government. Determining the strength of civil society requires assessing how well these functions are performed by a continuum of organizations and institutions. A disaggregated, multi-sector model is developed that assists with measuring civil society strength in any specific context.

From a historical perspective, the actual meaning of the concept of civil society has changed twice from its original, classical form. The first change occurred after the French Revolution, the second during the fall of communism in Europe.

The term civil society is widely used as a noun, and we ourselves use it here in this way to refer to a set of institutions and relationships that affect the balance of power between state and citizens in favor of the latter. However, this is not simply a zero-sum relation, where more power for citizens means automatically less for the state, and vice versa. Depending on the aims and performance of state institutions, their strength can contribute to what is thought of as civil society.

The analysis that follows leads to a positive-sum understanding of the relationship between state and civil society where the latter gives citizens greater capacity to engage with the state in mutually agreeable endeavors rather than just to oppose the state or to retain complete autonomy from it. Civil society in these terms is seen as possibly facilitating productive interdependence where state institutions are willing to accept such a relationship rather than being enmeshed in relationships of dominance or subordination.

The content and scope of civil society can be seen to vary considerably according to different definitions. Operationalizing the term “civil society,” assessing its strength in different contexts, and mounting programs to strengthen civil society are all made difficult by this lack of conceptual clarity.

Rather than approach this subject through definitions -- and adding one more -- an inductive approach is taken here, asking what are the purposes and outcomes that are at the heart of the widespread current concern with civil society? Then, what are the structures associated with these functions? This produces an understanding of civil society from the perspective not of what it is, but according to what it does. This is not a classic structural-functional analysis because no tendency toward equilibrium is assumed.

Supported and reinforced by widely shared norms and values, the different categories of institutions and organizations that are performing civil-society functions enable members of society to:

· articulate their interests and make demands,

· defend their rights vis-à-vis the state and others, and

· meet their needs directly, without depending on state agencies.

Civil-society organizations and capabilities by their existence and effectiveness help to ensure that people's interests, rights and needs are not suppressed and are, instead, fulfilled. Under various circumstances, these functions can be assisted and protected by institutions of the state, so there is not always or necessarily an oppositional or zero-sum relationship between citizens and the state, as is implied in much of the literature -- and more so, in the rhetoric -- about civil society.

Various non-state institutions and organizations -- depending on the circumstances and on their leadership -- can contribute significantly to the autonomy of individuals and to their ability to speak up and speak back to the state. This is not achieved only through autonomy; sometimes it comes from having connections between these institutions and the state that give citizens greater voice and scope for action. Organizations acting only by themselves are unlikely to have great impact on behalf of individuals and groups if they are not linked to and cooperating with other organizations. More than just non-governmental organizations or grassroots organizations are involved in this process.

Institutions of civil society are the following:

1. Political parties: Some or all of the parties in a country can perform civil society functions, representing and presenting people's needs and proposals, sometimes quite forcefully. Political parties that operate actively and competitively, with local-level units enlisting ideas and personnel as well as mobilizing votes, can be considered part of civil society when they represent regional, occupational, ideological and other interests within the political process at higher levels.

It is possible that a monopolistic single-party could function as part of civil society if it were internally democratic, with competition of personnel and ideas at local levels, and if these personnel and ideas then feed into national leadership and policy. However, most historical precedents suggest that single parties are, or quickly become, arms of the state vis-à-vis the public. Historically and contemporarily we see that multiple parties can serve the interests of political elites rather than of society at large, contributing little to what is thought of as civil society. Having a large number of parties in a country thus gives no guarantee of stronger civil society. One needs to look at what they contribute to effective exchange among citizens and state, and whether they create opportunities for more satisfactory transactions with the state.

2. The media: In many countries, the media -- especially television, radio, and the major daily newspapers -- are controlled by the state. But this is not true everywhere. In many countries, one finds journalists working through various media an important source of independent information for the public and an ally in the exposure of malpractices by state institutions. Does this make the media part of civil society? This depends on numerous factors and will vary from country to country. But even some journalists within state-controlled media can function on behalf of non-state interests, depending on conditions, culture and traditions (and individual courage). Many small daily papers and weekly or monthly papers, magazines and journals are quite independent of the state. In countries like Ghana and Uganda, at least a section of the media should be regarded as part of civil society by any definition even while the major media of communication are state-controlled.

3. Local government: Depending on how much financial and legal autonomy they have, local government bodies at county, subdistrict, locality or village levels can be part of civil society. Sometimes what is called local government is only an extension of central administration, in which case it should be considered as local administration, rather than as local government (Uphoff 1986: 4-5). But if it operates with the kind of independence and flexibility that local governments have traditionally had, for example, in the U.S. and U.K., acting collaboratively with higher levels of government to carry out programs that local citizens desire, they are important parts of civil society and promote non-state needs and interests.

4. Business sector: That part of private enterprise which is concerned only with producing goods and services for private profit should not be considered as part of civil society. But there is often some aspect of businesses that is concerned with policy matters and that engages in public service. This aspect of the business sector should be counted within civil society. Having its own sources of income, businesses can be more independent from the state than other parts of civil society. Indeed, the state can be rather dependent on the business sector in terms of tax payments and employment generation, not to mention simply the day-in, day-out provision of goods and services that keep the public clothed, fed and satisfied. So business enterprises, if they choose to do more than engage purely in profit-seeking production, can become key civil society components, criticizing and proposing policies, and financially supporting other civil society sectors in a public-spirited manner.

6. Foundations: This is a growing civil society sector, as non-profit organizations dedicated to philanthropy of various sorts are springing up around the world. This has been evident in Indonesia, for example, where yayasans now number in the thousands. These are often very small operations, but they can operate on their own, independently from or in cooperation with the state, bringing money and staff (maybe just one or two persons each) to bear on different issues and problems that their founders and directors consider important. Foundations are similar to non-governmental organizations, and indeed can in some countries be grouped analytically with non-governmental organizations. But foundations have no aspiration of mobilizing large numbers of people. Instead they focus on providing funding and expertise for selected activities that is mostly autonomous from the state. While they can be vulnerable to pressures from the state, they nevertheless can make civil society more pluralistic, as seen in Indonesia. This ipso facto strengthens civil society, giving state agencies more nodes of citizen activity to monitor and deal with.

7. Universities: Because so many universities and other institutions of higher learning are publicly established and supported, they are often considered as part of the state and have little or no latitude for critical action. But this ignores the large number that now privately operated, and also the extent to which publicly-financed universities, technical institutes and other such institutions can operate autonomously, even in opposition to government. The 1975 revolution that brought down an autocratic regime in Thailand was spearheaded by students from public as well as private institutions.

Governments around the world regard universities as "hotbeds" of criticism and opposition, partly because teachers are more independent and outspoken than many other professions. But this view arises also because students, having fewer personal encumbrances and as yet undampened aspirations, can be quite a radical force within society. When both idealism and knowledge get combined in university settings, these become important outposts for civil society, even if sometimes isolated ones.

8. Trade unions: These have traditionally been organizational channels through which the interests and concerns of large numbers of citizens can be expressed and advanced, aggregated in terms of their respective means of earning livelihoods. On the other hand, in many countries, because of the potential power and autonomy of unions, these structures are controlled or guided by state agencies, or possibly eliminated and suppressed. Where trade unions have become arms of the state, they obviously are not part of what is thought of as civil society; in other situations, however, they can be major protectors of individuals' rights and needs.

Unions enable workers on a group basis to engage in collective bargaining over wages and conditions of work, and to withhold their labor if no agreeable terms are arrived at with employers. Unions commonly function now as national organizations, but they had to start at the grassroots, and their effectiveness depends upon maintaining such a base.

9. Professional associations: When what became known as civil society began to take shape in Europe in the late 19th and early 20th century, there was quite a different institutional landscape. Trade unions were incipient, and universities were small isolated institutions; the church usually had close ties with the state. When Max Weber looked at European society, he was impressed with the role of "the free professions", law and medicine in particular. "Free" in this sense meant independent. Their independent voices were important to keep an overbearing state in check where it was willing to permit public expression. Now that various professions have expanded so widely around the world, they are usually ignored by analysts of civil society, or simply classified as non-governmental organizations. Yet they can be one of the most critical civil society elements, in both senses of the word, because the professions have skills that make them important to both the state and the public.

Lawyers as an organized group can be especially important, as a number of Ghanaian governments have learned to their embarrassment. Lawyers can challenge and work within and on the judiciary system, trying to make it live up to the usually lofty ideals it professes, like dispensing justice and providing equality before the law. Other parts of civil society can work more effectively and confidently to the extent that they can invoke all the available protections of the legal system. The Ghana Medical Association has also been a persistently independent voice, speaking up not only for its economic interests but also for the health needs of the public.

Given the status and legitimacy that they possess as well as the information they have as experts, professionals can counter actions of state agents and serve the interests of the public by contradicting state claims. If professionals choose to communicate their knowledge independently, they break the state's monopoly on expertise. This is often seen now in matters of environmental conservation, e.g., regarding construction of dams or clear-cutting forests.

An important but frequently overlooked professional group is the artistic community -- writers, poets, musicians, composers, playwrights and others who produce ideas, melodies, verses, symbols and other things that appeal to the mind and feelings. These creative persons tend to be independent by disposition, and even to be critical of state power and actions. They represent a potentially very powerful part of civil society, facilitating communication with and inspiring the rest of civil society with its songs, articles, murals and other forms of expression. In the U.S., both the civil rights movement and the anti-Vietnam war movement in the 1960s were made more powerful and independent by the power of folk music.

10. Non-governmental organizations: These have usually been regarded as the major actors of civil society, but note that we have moved quite far along the civil society continuum before coming to non-governmental organizations on its "autonomous," i.e., embedded in society, end. Non-governmental organizations vary greatly in size and effectiveness, covering a wide range of activities and functions. Some are membership organizations pursuing purposes of, by and for their members, but most are better understood as private sector, not-for-profit organizations that are accountable to their founders, managers and contributors (Uphoff 1997). Non-governmental organizations can serve various functions, some more supportive of civil society than others, however, the non-governmental organizations category should be restricted to national and regional organizations to distinguish it from the next category of civil society actors.

The important point, however, is that non-governmental organizations and the next category, grassroots organizations, are not the only sectors that need to be considered while assessing civil society strength in any particular context. Other branches and sectors can also perform civil society functions. And how well non-governmental organizations and grassroots organizations perform their functions depends quite centrally upon how these other branches and sectors behave and on the quality of linkages between non-governmental organizations and these other sectors.

11. Grassroots organizations: These are local-level and membership organizations, though they can extend upward through various federative arrangements to become regional and even national organizations with a local base. Relations between grassroots organizations and the state are not always conflictual in nature (Brinkerhoff 2002), nor is there any reason to rule out the possibility of mutually beneficial cooperation with state agencies. Farmer organizations that work with government agricultural extension services, or water user associations that cooperate with an irrigation department in the operation and maintenance of irrigation systems show that some degree of cooperation and embeddedness is not only possible; it is quite often also appropriate and desirable.

REFERENCES

1. "Civil Society" - An Agreed Definition (2003) available from http://pages.britishlibrary.net/blwww3/3way/civilsoc.htm; Internet. (No longer available as of March 5th 2013)

2. Robert D. Putnam, Bowling Alone. (New York: Simon and Schuster, 2000).

3. William Clinton, "Remarks to the 49^th General Assembly of the United Nations, 26 September 1994. In Joseph Nye, Understanding International Conflict, 4^th ed. (New York: Longman, 2003), 48.