Abstract
This paper presents a comparative analysis of the findings of a 24 country study of the legal restrictions on the freedom of non-profit and charitable organisations to engage in public policy campaigning. The countries are divided into those which organise the legal status of non-profit bodies around the concept of a charity, and those that do not. The central finding is that all and only charity law countries have constraints on campaigning which are specific to non-profit bodies. The paper reviews a number of possible explanations for this, at the level of jurisprudential rationales which might show that it is necessary or at least rational for only the charity law countries to have developed such restrictions. To varying degrees, all are found wanting. It is suggested that no explanation based on an ‘inner logic of the law’ will serve to explain the phenomenon, and that future research might concentrate on comparative political history rather than on jurisprudence.
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References
Alfandari, E. and Nardone, A. (eds) (1990)Les Associations et Fondations en Europe: Regime Juridique et Fiscal Editions Juris Service, Paris.
Allen, D. (1992)Tax and Giving in Europe, The Directory of Social Change, London.
Allott, A.N. (1970).Judicial and Legal Systems in Africa Butterworths, London.
Asiedu-Akioft, D. (1989) Judicial recognition and adoption of customary law in Nigeria,American Journal of Comparative Law, 39.
Bates, Wells and Braithwaite, Solicitors (undated) Political activities of charities, unpublished paper, Bates, Wells and Braithwaite, Solicitors, London.
Bollinger, L.C. (1986).The Tolerant Society, Oxford University Press, Oxford.
Bright, S. (1989) Charity and trusts for the public benefit — time for a re-think?,The Conveyancer, 28–41.
Burnell, P. (1993). Charity law and pressure politics in Britain: after the Oxfam enquiry,Voluntas, 3:3, 311–34.
Canadian Centre for Philanthropy (1990)Law, Tax and Charities: The Legislative and Regulatory Environment for Charitable Non-profit organisations, Canadian Centre for Philanthropy, Ottowa.
Certoma, G.L. (1985)The Italian Legal System, Butterworths, London.
Charities Act 1961, Charities Act 1973; reprinted in Appendix III of Sheridan, L.A. and Keeton, G. (1962; 1983).
Charity Commissioners for England and Wales (1986)Political Activities by Charities [leafet] CC9 Charity Commissioners for England and Wales, London.
Charity Commissioners for England and Wales (1991)OXFAM: Report of an Enquiry Submitted to the Charity Commissioners 8 April 1991, including the response of the Commissioners and a note of the Commissioners' published guidance on political activities by charities, HMSO, London
Charity Commissioners for England and Wales (1992)Oxfam: Report of an Enquiry, HMSO, London.
Chesterman, M. (1979).Charities, Trusts and Social Welfare, Weidenfeld and Nicholson London.
Chisholm, L.B. (1987) Exempt organisation advocacy: matching the rules to the rationales,Indiana Law Journal, 63:2, 1987/88, 201–299.
Chisholm, L.B. (1990a) Politics and charity: a proposal for peaceful coexistence,George Washington Law Review, 58:2, 308–65.
Chisholm, L.B. (1990b) Sinking the think-tanks upstream: the use and misuse of tax exemption law to address the use and misuse of tax-exempt organisations by politicians.University of Pittsburgh Law Review, 51:3, Spring, 577–640.
Clark, E. (1960) The limitation on political activities: a discordant note in the law of charities,Virginia Law Review, 46, 439–66.
Coalition of National Voluntary Organisations (1991)Response to Revenue Canada's Discussion Paper' A Better Tax Administration in Support of Charities', Coalition of National Voluntary Organisations, Ottowa.
Commission of the European Communities (1992)Le Droit des Associations, Vols I–III, Commission of the European Communities, Brussels.
Cotterrell, R.B.M. (1975) Charity and politics,Modern Law Review, 38, 471–4.
David, R. (1972)French Law, Louisiana State University Press, Louisiana.
Delany, V.T.H. (1955) The development of the law of charities in Ireland.International and Comparative Law Quarterly 4, 30–45.
Dessemont, F. and Anstay, T. (eds) (1983)Introduction to Swiss Law, Klumer, The Netherlands.
Dworkin, R. (1992) The coming battles over free speech,New York Review of Books, 11 June.
Elias, T.O. (ed.) (1972)Law and Social Change in Nigeria, University of Lagos Press, Nigeria.
Forder, C.J. (1983) Too political to be charitable?The Conveyancer, 261–74.
Gladstone, F. (1983)Charity, Law and Social Justice Bedford Square Press, London.
Habermann, U. (1989) Voluntary Work in a Nordic Welfare State, unpublished paper, Kontaktudvalget til det frivillige sociale arbejde, Copenhagen.
Hackney, J. (1981) The politics of the chancery,Current Legal Problems, 113–31.
Hall, P.D. (1992) Inventing the nonprofit sector, in Hall, P.D. (1992)Inventing the Nonprofit Sector and Other Essays in Philanthropy, Voluntarism and Nonprofit organisations, Johns Hopkins University Press, Baltimore, Maryland.
Harmon, G.M., Ladd, J.A. and Evans, E.A. (1991)Being a Player: A Guide to the IRS Lobbying Regulations for Advocacy Charities, The Advocacy Forum, Washington, DC.
Hatunen, H. (1991) The role of voluntary social welfare organisations in the Finnish society, mimeo, The Finnish Federation for Social Welfare, Finland.
Hemström, C. (1990) Laws governing the associations, structures, legal systems, paper given atConference on Non-governmental Organizations in a Democratic State, December.
Home Office (1989)Charities: A Framework for the Future, Cm 694, HMSO, London
Hone, M.C. (1988) Aristotle and Lydon Baines Johnson: Thirteen ways of looking at blackbirds and nonprofit corporations — the American Bar Association's Revised Model Nonprofit Corporation Act,Case Western Reserve Law Review, 39, 751–63.
Independent Sector (1990)Lobby? You?, [leaflet], Independent Sector, Washington DC.
Italian Civil Code: Constitution of the Republic of Italy (1942) translated by Proftrans.
Jordan, W.K. (1959)Philanthropy in England, 1480–1660, Allen and Unwin, London.
Karpen, U. (1989) Freedom of expression as a basic right: a German viewAmerican Journal of Comparative law, 37, 395ff.
Kuti, É. (1992) New Developments in the Hungarian Non-Profit Sector, paper given at the Third International Conference on Voluntary and Nonprofit Organisations, Indiana University-Purdue University, Indianapolis, March.
Melief, W.B. (1992) Dutch voluntary organisations in transition, paper given at the Third International Conference on Voluntary and Nonprofit Organisations, Indiana University-Purdue University, Indianapolis, March.
NCVO (1990a)Cause and Effect: A Survey of Campaigning in the Voluntary Sector, National Council for Voluntary Organisations, London.
NCVO (1990b)Effectiveness and the Voluntary Sector: Report of a Working Party chaired by Lord Nathan, National Council for Voluntary Organisations, London.
Nobles, R. (1982) Politics, public benefit and charity,Modern Law Review, 45, 704–7.
Oostehoff, A.H. (1977) The law of mortmain: a historical and comparative review,University of Toronto Law Review, 27, 257–334.
Owen, D. (1960)English Philanthropy 1660–1960, Harvard University Press, Cambridge, Massachusetts.
Political Vetting of Community Work Working Group (1990)Political Vetting of Community Work in Northern Ireland, NICVA, Belfast.
Posnett, J.W. and Sandler, T. (1988) Transfers, transaction costs and charitable intermediaries,International Review of Law and Economics, 8, 145–60.
Revenue Canada (1987)Information Circular 87-1, 25-2-87: Registered Charities —Ancillary and Incidental Political Activities, Revenue Canada, Ottowa.
Revenue Canada (1990)Discussion Paper: A Better Tax Administration in Support of Charities, Revenue Canada, Ottowa.
Rickett, C.E.F. (1979) Charitable giving in English and Roman law,Cambridge Law Journal, 38:1, April, 118–47.
Rickett, C.E.F. (1982) Charity and politics,New Zealand Law Review, 10, 169–77.
Sheridan, L.A. (1973) Charity versus politics,Anglo-American Law Review, 2, 47–68.
Sheridan, L.A. and Keeton, G. (1983)The Modern Law of Charities, 3rd edition, University College Cardiff Press, Cardiff.
Simon, J.G. (1973) Foundations and Public Controversy: An Affirmative View, in Heinmann, F. (ed.)The Future of Foundations, Spectrum Books, Prentice-Hall, Englewood Cliffs, New Jersey.
Smucker, B. (1991)The Nonprofit Lobbying Guide: Advocating Your Vause — and Getting Results, Jossey-Bass, San Francisco.
Soumeryn-Kestemont, M. and Afschrift, T. (1991)A.S.B.L. Vade Mecum des Associations Sans But Lucratif, CREADIF, Brussels.
van der Ploeg, T.J. (1991) The legal tradition concerning non-profit organisations; an obstacle for European integration of law on voluntary organisations, paper given at the Third International Conference on Voluntary and Nonprofit Organisations, Indiana University-Purdue University, Indianapolis, March.
Ware, A. (1989)Between Profit and State, Polity Press, Cambridge.
Weisbrod, B.A. with Mauser, E. (1991) Tax policy toward non-profit organisations: an eleven country survey,Voluntas, 21:1, 3–25.
Weisbrod, B.A. with Mauser, E. (1992) Tax policy toward non-profit organisations: a ten country survey, in K.D. McCarthy, V.A. Hodgkinson and R.A. Sumariwalla, (eds)The Nonprofit Sector in the Global Community, Jossey-Bass, San Francisco, California.
Williams, I. (1989)The Alms Trade: Charities — Past, Present and Future, Allen and Unwin, London.
Zagrodzka, D. (1991) Mierz fundacje na zamiary,Gazeta Wyborcza, May, Warsaw.
Zimmer, A., Bugari, A. and Dupuris, M. (1992) Voluntary organisations and environments, paper given at the Third International Conference on Voluntary and Nonprofit Organisations, Indiana University-Purdue University, Indianapolis, March.
,P. and Randon, A. (1994)Liberty, Charity and Politics, Dartmouth Publishing, Aldershot, forthcoming.
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Planning Officer, Social Services Department, Royal County of Berkshire. formerfy Acting Head of Policy Analysis and Research, National Council for Voluntary Organisations, London, United Kingdom.
(Most of the research for this paper was conducted when this author was Head of Policy Analysis and Research at the National Council for Voluntary Organisations, London, UK.)
Full information about the research summarised here is given in 6 and Randon, 1994. This research was conducted with the support of the National Council for Voluntary Organisations. We are grateful to all our respondents for their time in answering a difficult questionnaire, provision of documentation and alternative contacts, patience and advice. They are too numerous to list here: a full list is available from the authors. Some, to whom we are particularly grateful, must remain anonymous because they work in countries or in professional positions where campaigning is a sensitive subject. The Nuffield Foundation made available a small grant to cover our translation costs; PROFTRANS undertook most of the translations for us. Martin Knapp, Marilyn Taylor and Nigel Tarling helped to identify potential respondents. Tymen van der Ploeg, Jacques Defourny and Lindsay Driscoll assisted in piloting the questionnaire. Lindsay Driscoll and Bridget Phelps read and commented on early drafts of part of the paper. The editors and anonymous referees for this journal provided important additional information and advice. The usual disclaimer of responsibility for our errors applies to all of them.
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Randon, A., Perri Constraining campaigning: the legal treatment of non-profit policy advocacy across 24 countries. Voluntas 5, 27–58 (1994). https://doi.org/10.1007/BF02353951
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DOI: https://doi.org/10.1007/BF02353951