THE LEGAL DEFINITION OF CHARITY AND THE REGULATION OF CIVIL SOCIETY
Author: GARTON, JONATHAN
Source: King's Law Journal, Volume 16, Number 1, 2005 , pp. 29-50(22)
Publisher: Hart Publishing
Abstract:This article considers the extent to which is appropriate for the legal definition of charity to form the basis of the regulatory regime for organised civil society in England and Wales. It argues that contemporary sociological theories of civil society reveal that charities and non-charitable civil society organisations (CSOs) are structurally and functionally synonymous. Accordingly, if state intervention in the charitable sector is warranted then, prima facie, it must also be appropriate to regulate wider civil society. In order to demonstrate this, the first part of the paper provides a comparative analysis of the structural characteristics and social functions of charities and other CSOs. The structural analysis argues that charities exhibit all the defining characteristics of civil society. The functional analysis argues that the purposes recognised as charitable under both the current law and the Charities Bill 2004 do not form a discrete, cohesive subset within civil society but are spread broadly across all social functions. The second part of the paper considers the two features which do distinguish charities from other CSOs: the public benefit requirement and the rule against political purposes. It argues that, whilst it may be proper that these issues should influence regulatory strategy, it is inappropriate to define the boundaries of a regulatory regime by reference to them. The oft-cited argument which seeks to justify the regulation of charities by reference to tax relief is also discussed. Finally, the article acknowledges some of the difficulties that would come with redefining the boundaries of regulation in light of the preceding analysis.
Document Type: Research Article
Publication date: 2005
- Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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