Conceptions of Civil Society in International Law-Making and Implementation: A Theoretical Framework

Abstract

The wave of civil uprisings that has swept the Middle East and North Africa has placed fostering civil society participation high on the agenda of national governments and international organizations. Despite widespread appeals to civil society engagement, however, the term “civil society” is deeply ambiguous: behind it lie conflicting normative values and commitments. This renewed commitment to civil society participation in democratic governance makes it all the more pressing to understand these different normative conceptions of civil society and the often-conflicting prescriptions that flow from them.In this article, I develop a theoretical framework that disaggregates civil society organizations into their possible functions and purposes, ranging from apolitical and individualistic to policy-oriented and state-integrated. I then argue that five groups of theories of civil society, each espousing different value systems, map onto this framework, providing strikingly different answers to fundamental questions, such as: Why should international organizations and national governments encourage civil society participation? Which civil society actors should participate? Which institutional designs best foster such participation and result in successful implementation? Does civil society participation contribute to or detract from the legitimacy of international organizations? Applying the normative framework to a concrete case study (the regime to monitor the UN Declaration of Commitment on HIV/AIDS), I then detail how choosing one theoretical interpretation of civil society over another leads to different prescriptive outcomes. I show how these five groups of theories suggest five different monitoring regime designs: (1) delegation to market-ordered, apolitical private associations, (2) deference to the state, (3) participation of minority voices, (4) criticism of state action, and (5) collaboration among all stakeholders. In the final part of this article I engage normatively with the debate regarding the legitimacy of international organizations. I show how the theoretical framework I propose helps illuminate the implicit conceptions of civil society found in both celebratory and skeptical positions towards civil society’s legitimizing role. I then propose an inclusive-contestatory theory of civil society that requires the creation of three spaces of deliberation (local, bridging, and comprehensive). I argue that such a theory provides the best justification and framework for civil society participation in international governance.