by Jonathan Garton. Oxford: Hart Publishing, 2009. 288pp. Cloth. £47.00/$94.00. ISBN: 9781841138008.
Reviewed by Robert Dingwall, formerly University of Nottingham, UK. Email Robert.dingwall [at] ntlworld.com.
‘Civil Society’ is one of those descriptors of social institutions that is generally held to refer to A Good Thing, but which, as this book makes clear, has an irritating quality of vagueness. Ever since the implosion of Soviet Communism and its East European satellites at the end of the 1980s, ‘strengthening civil society’ has been seen to be a sovereign panacea for all the ills of governance, initially in transition societies and later in developing countries more generally. It has also increasingly featured in the rhetoric of politicians in developed countries: as I write, for example, the election campaign of the UK Conservative Party features a call for Big Society to replace Big Government. Slogans like this give an important clue to the provenance of the civil society vision, as a critique of the ability of the state to deliver welfare goods and services in market-dominated polities. State provision is seen as producer-controlled, inflexible, insensitive, potentially authoritarian and vulnerable to corruption. Markets, on the other hand, cannot be assumed to deliver benefits to everyone. A decent society takes care of its casualties through philanthropic organizations, out of the goodness of its collective heart rather than as a matter of right. Some provisions may be better made through mutual, non-profit forms of organization – higher education and health care used to be thought of in these terms. Other activities may not be readily monetizable, like many associations of hobbyists who gather to tend community gardens or exchange knitting tips. To recall another UK election slogan, civil society is the Third Way, neither state nor market but empowered citizens acting for themselves.
Jonathan Garton’s book is not the sustained critical examination of the concept of civil society and its relevance to contemporary problems of governance that might be implied by this opening paragraph. However, in pursuit of the more modest goal of trying to understand what constitutes this sector in three developed countries – the UK, Australia and the USA – and what legal regime might be appropriate, he well demonstrates the incoherence of the concept and the degree to which its promotion is a matter of slogans rather than substance or, perhaps better, of slogans that conceal the hollowing out of social provision as states yield before markets. This meticulous attempt to define civil society in order to consider its relationship to legality ultimately reveals its inadequacies as a fig leaf.
The book begins with a historical overview of organized civil society, arguing that its base lies in the role of the church and the guilds in the medieval and early modern period, which functioned as social formations with a high degree of autonomy in England until the sixteenth century. Although [*215] both came under increasing state control during this period, a secular notion of civil society also became established in law with the Statutes of Charitable Uses 1597 and 1601, the latter providing the basis of English charity law until 1853 and continuing to influence English and Commonwealth jurisdictions to the present day. Garton introduces the recent attempts to modernize charity law in England, Australia and other Commonwealth countries and sketches the case for regulation. He is, however, quick to point out that there is a good deal more to civil society than charitable organizations and moves on to attempt to map this diverse sector. He argues that modern societies are characterized by four sectors of activity, which he defined mainly in economic terms: the private sector, where activities occur in the market for private gain; the public sector, which he extends beyond the state, traditionally conceived, to include other bodies carrying out public functions; the informal sector, which he identifies with family units that consume market goods and provide mutual support; and organized civil society, which is, in essence, everything that is not included by the first three categories. For completeness, it might be noted that many social scientists would also recognize a criminal sector of goods and services traded outside the recognized market and its state-supplied framework of legality. However, the residual nature of organized civil society then means that Garton finds himself in some difficulty in coming up with proposals for a coherent legal regime.
Some help with this task is provided by a focus on structural characteristics like volunteerism, independence from other sectors, formal organization and non-profit distribution. However exceptions can be found to all of these: one of the most successful retail chains in the UK is an employee-owned mutual, for example. In essence, it is a market business, but all the profits are used for investment or distributed among its employees, either in cash or benefits. Garton acknowledges such problems and tries to address them through a review of the functions undertaken by the sector: market support; provision of public goods, provision of private goods analogous to public goods, facilitation of political action, provision of cultural services, facilitation of self-determination, and facilitation of entrepreneurship. In the course of this argument, he also explores existing theories of ‘market failure’ – the term is not strictly applicable to this sector but picks up on the law and economics approaches to regulation that inform much of his argument in the book. These approaches are then developed further in considering when, why and how it may be appropriate to regulate this sector. This offers a useful discussion of the limitations of previous thinking in this tradition once it is extended to non-market activities. However, the argument ultimately runs into problems from the messiness of the sector’s definition and its internal diversity. An employee-owned department store is, in the end, a department store and should properly be regulated as such for the most part in terms of consumer protection, health and safety, fire and construction codes, accounting rules, and the like. A railroad modeling club or a team in a bowling league, individuals who meet weekly to pursue a hobby in an organized way may not be thought to require any statutory regulatory attention at all. [*216]
Garton acknowledges these problems and effectively sidesteps them by returning to focus on charities, arguing that other types of non-profit organization should be regulated in a similar fashion – and that charities should not be constrained by rules that do not apply to other non-profits. Here, he is thinking particularly of English law’s restraint on charities being able to engage in political action, although he is clearly not entirely happy with the wide scope of exemptions offered by the Internal Revenue Code in the US. Finally, he considers the possible organizational models for regulation, particularly the balance between different kinds of regulators.
I read this book with increasing fascination – it is not a subject that I know much about, although, to judge from the thoroughness of the author’s investigations, not much has actually been written on the topic from within his particular perspective. As such, Garton’s work should provoke further thought and inquiry, which might usefully join it to some of the bigger questions and wider literature that were hinted at in the opening. In a sense, this book invites a sociology of itself – why are people writing about this topic right now? There is a small but influential group of specialists in charity law emerging in the UK, for example. What is driving this process? If I had to make some key criticisms, I would point first to the way in which Garton tends to assume the need for regulation rather than to justify it. There might be an argument that the essence of this sector is its autonomy from law as much as from the state or the market. If this is primarily about things citizens do for themselves, why should the sector not be left to private ordering? One possible answer might be to adopt a Weberian acknowledgement of the creative and constitutive power of law, that without law, organizations in this sector could not come into being and fulfill the valuable range of functions that Garton identifies. However, this might lead us to emphasize what law can do to facilitate citizen action rather than to regulate it and the spirit of the analysis might look rather different. This suggests that the book could have benefitted from consideration of a wider range of social science influences – sociologists, political scientists and public policy scholars have also struggled with these issues and there is a world beyond law and economics. On the other hand, the book reads as if its origins lay in a doctoral thesis and focus is critical to a positive outcome in that task!
This is a valuable and timely book that will, I hope, stimulate other people’s thinking about a relatively neglected topic in law and society scholarship as much as it has mine. If it is not the last word, what book ever is?
© Copyright 2010 by the author, Robert Dingwall.