World Civil Society and the International Rule of Law

Abstract

World Civil Society and the International Rule of Law Gordon A. Christenson (bio) I. the Idea of “Civil Society” In the Tanner Lectures delivered just before Soviet Marxism/Stalinism fell, the late Ernest Gellner said, “Civil Society . . . is first of all that part of society which is not the state. It is a residue.” 1 What did he mean? If this residue is large, powerful, and organized, the idea “contains the assumption that civil society . . . is in a position to ensure that the state does its job but no more, and that it does it properly.” 2 But what of other civilizations in an emerging global society? Do they, too, limit the activities of states? Do they give meaning to the idea of a “state?” Is not the better ideal a democratic society which itself defines the parameters of power of a contemporary state under international law? Democracy and the rule of law are concepts whose core lies in Western civilization. Yet might civil society as an idea extend beyond Western origins? In a later work, Gellner answered that question, but only in part. He thought the idea of civil society to have priority even over democracy. “‘Civil Society’ is markedly superior to a notion such as ‘democracy,’ which, though it may highlight the fact that we prefer consent over coercion, tells us precious little concerning the social pre-conditions of the effectiveness of general consent and participation.” 3 In customary and traditional societies, [End Page 724] for example, “civil society” also keeps an informal check on the arbitrariness of rulers from within a tradition, as Ummas do in Islamic civil socie-ties. 4 The idea of “civil society” most often has accompanied social contract thought in liberal political theory from Locke, Rousseau, Ferguson, Kant, and other Europeans, 5 although modern French and German equivalents use “civil society” to denote the social totality, including the state. Anglo-American usage within capitalistic society separates the voluntary, religious, and private spheres from the state’s public spheres. Strands of Scottish Enlightenment, influential in eighteenth century America, were the first to embrace a moral philosophy that questioned the old natural law basis for civil society. 6 This unique contribution demonstrated the independent influence of customs, practices, and institutions that resisted formal law but still maintained a rational morality as social fact. 7 Civil society was a moral arena in which commerce and exchange entailed mutual recognition or identity of individual moral selves without a necessary theological basis. 8 After Hume extended this humane skepticism to its rational limits of doubt, Kantian thought made the distinction between the public and the private spheres absolute. The private sphere harbored individual integrity of self and consciousness. The public sphere operated through reason in deliberating with others with equal dignity in a civil public forum for the common good. For Hegel, on the other hand, civil society provided the dialectic tension from outside an existing equilibrium of public and private power to create a dynamic movement toward world state and spirit, [End Page 725] integrating state with society. Building on Hegel’s dialectic, Marx attempted to merge the private moral sphere with the public sphere, which was ever more closely allied with the actual power of the state. The state thus became society by the process of dialectic through class struggle involving material private and public interests and historical change. In the West, “civil society” thus grew from different points of view, each in its own way aimed at filling a communal void as medieval society and its feudal system were replaced by the modern national state with a central monopoly of coercive power operating under some semblance of law. This central public monopoly is vital because it authorizes coercion as a legitimate restraint against savagery from blood feuds and private wars and inhibits ethnic and religious violence as well as ordinary crime, delicts, and private conflict. From among the European varieties of thought about civil societies, two viewpoints stand out conceptually. The first viewpoint, in the tradition of Hobbes and Pufendorf, held that hostile human nature organized within and between nations in a state of nature required the state to hold in check the natural hostilities...