Dred Scott was a black slave who had fought long and hard for his freedom. Emerson also took his slave with him to the free state of Wisconsin before moving back to Missouri Kaufman.
It embraces free action and interaction; law constrains action, controls it. At first sight, therefore, law is inimical to the free play of civil society, at best a necessary evil setting a framework within which it operates.
In fact an enabling legal environment is necessary for civil society to be fully effective. It facilitates civil society and protects it. But only if it enables, and supports.
The bad name law has in many parts of civil society reflects the experience that it impedes, controls, even suppresses. This contrast can be graphically illustrated by the experience of Kosovo.
In the years before the war the Serbian state used the law to suppress Albanian civil society — which resorted to self-organization outside state law.
Education, for example, was provided by a The importance of the civil and Albanian system.
But civil society in Kosovo suffered from the lack of an enabling legal environment. The roles of law Law fulfils a range of functions in support of civil society. These need to be distinguished not just theoretically but in application. It is the failure, wilfully or unconsciously, to make the necessary distinctions which leads to the inhibition, distortion or suppression of civil society by the law.
There are four broad functions of law for civil society: This article seeks to present these strands and show how they support civil society when properly applied and distinguished, and to show how the failure to distinguish them inhibits and undermines civil society. Upholding the freedoms At the most basic level, law should express and defend the right to civil society itself; the right, that is, of individuals to come together for common purposes.
The freedoms upheld in the UN Universal Declaration on Human Rights, especially the right to freedom of association, are fundamental. National constitutions generally give expression to this right.
How the law strikes a balance between individual rights and collective security is critical. Thus Article 17 of the Constitution of Pakistan of says: The US Patriot Act and action against terrorism makes full use of this exception.
The fact that the European Court of Human Rights has been very restrictive in allowing exceptions to the right to freedom of association highlights how important it is that the institutions that apply civil society law should uphold the rights of responsible civil society.
Institutional forms for civil society Civil society can achieve remarkable things without legal organization. But they flourish despite, not because of, their informal status.
While this may be a virtue at the level of communities, it creates instability and insecurity at a wider level.
Engaging with organized society, which means being able to enter into legal and contractual relationships, is facilitated by the creation of legal entities.
The ways in which different societies meet this need vary greatly. Some, like the Swiss Civil Code, make it admirably simple, determined by the action of those concerned. But a court or government based registration process is the most common basis for organized civil society.
Registration has great advantages. It provides clarity and openness, enabling registered organizations to have security. But the process of registration exposes civil society to the exercise of discretion by the registration authority — necessarily so given the conditional nature of the right of association, as discussed in the previous section.
This is where the confusion of purposes highlighted above may damage civil society. All too many codes import a judgemental element into what ought to be a basic right.
Thus registration in China requires a social organization to have the authorization of a sponsoring department or authority in order to qualify for registration by the Ministry of Civil Affairs. Until the reforms of the Non-Profit Organizations Law ofregistration as an NPO in Japan depended on the consent of the government department concerned.
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