Civil Society Organizations and Administrative Law

Abstract

This paper endeavours to give a systematic account of the role of civil society organisations – CSOs in administrative governance. In most jurisdictions, ‘civil society’ is not a legal term of art. It does however exist, and it does raise legal questions. The different kind of roles played by CSOs in both policy formulation and policy delivery will be examined, as well as the legal questions raised by the involvement of CSOs in governance.

It is admitted that some of these roles – as it is for instance the case for the right of access to information or participation to administrative proceedings – are not an exclusive for CSOs, in that individuals or citizens and businesses might be involved as well; the involvement of our organisations, however, gives rise to specific questions, including ones of legitimacy and accountability, and this especially so for instance when participation to decision making procedures is concerned. Governance itself is not a term of (legal) art, often being used by social scientists willing to break free from the perceived formalism of legal thinking and analysis.

What is then the role of law in this area? As usual, law can be analysed and debated both de lege data and the lege ferenda. Instances of actual legislation or case law may be helpful to illustrate a problem and its possible solutions and as such they will be often referred here. In the main, however, and in line with a strong tradition in the legal scholarly debates, this paper will strive to set out how the problems linked with the civil society involvement in policy formulation and delivery can be systematically reconstructed and understood. Solutions to same problems will be then sought – if deduced is thought to be a too strong word – from their systematic understanding.

This paper has been drafted from a European – and more specifically a EU – perspective. Materials and ideas from other jurisdictions, and most notably the US, will however be from time to time referred to in order to provide a contrast.

Keywords: civil society, administrative law