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What role do academics play in the creation of a civil society space?

I am reposting an insightful comment I received from my friend and colleague Elisa Nesossi to a posting I made on "Optimism and Interpretive Spaces: China's Foreign NGOs Management Law". 

Among Elisa's observations, one point attracted my attention.
(...) whether and to what extent [academics] want to engage with and contribute to the real world (...)
In June 2015, the Ariadne Network, the International Human Rights Funders Group, and the European Foundation Centre held a workshop in Berlin on "Challenging the Closing Space for Civil Society". Ariadne is a "European peer-to-peer network of more than 500 funders and philanthropists who support social change and human rights.

The workshop saw the participation of 80 persons, including funders, civil society actors and government representatives "thinking together about how to challenge the disabling environment for cross-border funding." The report produced by the Ariadne Network (available here) does not mention the participation of academics (see page 31 of the report). On this specific occasion, academics did not seem to have had an opportunity to make the contribution Elisa wishes we could make to the creation of civil society space. 

Our expertise and intellectual resources remained confined to some fields, and to some analyses only. Our voices remained confined to the four walls of our offices. Our analyses remained confined to the pages of academic journals - in spite of the increasing importance and benefits of broad consultation processes.

It is well-known how there is no commonly accepted definition of civil society, or 'civil society organizations'. In light of academics' absence from such an important event as the Berlin Workshop,  the lack of an accepted definition - the vagueness so to speak of the definition of civil society - raises the following questions: 

1) Can academics be considered members of civil society?

2) Should academics be considered members of civil society?

3) Our know-how and expertise are unique assets - in many cases we have both practical and theoretical insights. Should and could we  play a more significant role in the creation of a civil society space? If so, how?

Elisa Nesossi's Comment

Flora, many thanks for taking the time to respond to my brief comment. I find your analysis certainly correct in terms of legal theory and there is vast literature that supports some of the points that you raise in your reply. So, it is not for me, in this context, to analyze the scope and meaning of the law and its different interpretations. I would not contribute much either to the existing narratives or to the discussion concerning the topic at hand. 

I just would like to reflect on three points that you mention and that, I believe, are quite important. First, the concept of ambiguity and vagueness. As you say, by their nature laws cannot be utterly precise. They can only approximate reality and cannot cover all the circumstances that our real world offers. Without their vagueness and ambiguity, they could not offer space for adaptation and interpretation, and here, I guess, are the possibilities and the beauty that you note. But, this is an obvious statement and the truism in it can be dispelled when laws are looked at in their specific contexts. When I assess PRC laws, including the Law on Foreign NGOs, I tend to ask why such evident, open ambiguities are left there, and consequently reflect on the dangers that they pose. And herein lie both the problem and the explanation at once: laws such as the one we are discussing are not an articulation of some social contract. Some of those ambiguities could be easily avoided, but they are not because they are in line with the spirit and practical purposes that inform this specific law. In a system where we know who and how is interpreting the law and according to which interests, ambiguities can and will pose real dangers to people’s lives and it is this first and foremost consideration that should spring to our mind when we reflect upon a piece of legislation.

Secondly, I find your view about pluralism a bit problematic. Again, there are plenty of writings out there on the concept of pluralism in general and legal pluralism more specifically, and I certainly don’t want to add any theoretical analysis to an already overpopulated field. However, to my taste, to say that “pluralism of value is already embodied in the Foreign NGO Management Law” because the law “is not the product of a single mind” goes too far and appears decontextualized. I feel that is just a part of the story, even because we don’t really know and fully understand the extent to which different views were actually taken into account into the drafting process and what kind of compromises the final version of the Law hides. I struggle to find a sense of pluralism in a Law that aims at arbitrarily protecting the interests of a single (P)/party and its representatives in the society.

My last point relates to your final comment concerning the role of academics versus practitioners. Academics could potentially offer valuable reflections and contributions to the NGOs’ world. I believe that, if we want – and that’s a choice that our profession allows us to make – we can offer our concrete support through the deep analysis of a piece of legislation, through comparative analysis and maybe by sourcing analogue examples from other jurisdictions. But this implies a choice on whether and to what extent we want to engage with and contribute to the real world and some of its causes. A fundamental shift in our approach.


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