Editors’ Note: Chloé Gaboriaux continues HistPhil’s forum on Philanthropy and the State in France. In this essay, Gaboriaux analyzes “how members of the French Council of State, in charge of authorizing the incorporation of nonprofit organizations, reasoned about the general value of foundations and associations at a time (1870-1914) when the young Republic was defining a new relationship between the State and civil society.”
How does the French Republican State—itself a promoter of a robust welfare state—regard philanthropy, or rather, private initiatives of a social, charitable and humanitarian nature? My research addresses this question at the beginning of the Third Republic (1870-1914), when the French welfare state was still in its infancy. The growing idea of a State monopoly of public services was then limited by its weak resources, whereas numerous charitable organizations had long been helping the poor and needy.
At that time, as Colette Bec has suggested in Assistance et République (1994), the French State aimed above all to “rebuild a field still then left to local and individual initiatives – to rebuild it in accordance with the general interest as the only criterion to which the State in France would become the unique guarantor” (Bec 1994, p. 36). Predictably, the State then tried to regulate and control philanthropy: its laws, institutions, and policies.
In my contribution to the Geneses special issue on philanthropy and the state in France– which this HistPhil forum showcases– I try to understand how members of the French Council of State, in charge of authorizing the incorporation of nonprofit organizations, reasoned about the general value of foundations and associations at a time (1870-1914) when the young Republic was defining a new relationship between the State and civil society. I investigate whether they followed written principles and if they based their reasoning on the old (and thus non-republican) case-law of the Council. Furthermore, I investigate the extent to which they were inclined to give priority to foundations and associations they well knew through personal relationships. In other words, I question whether they were working – consciously or not – to allocate State support to the very narrow social elite they belonged to (Charle 1987).
In France, “Reconnaissance d’utilité publique” (RUP) long has been the only way for foundations, an endowment fund managed by a board of trustees, to exist and for associations, a group of people working together to achieve a common set of goals, to acquire legal personality. It stems from a very ancient principle of the medieval Roman law, which says that an organization cannot exist and act as a moral entity without being authorized by the State. In the 19th century, associations with more than 20 members could not be established without a prefectoral authorization (Article 291 of the Penal Code of 1810) and needed RUP to acquire legal capacity (or incorporation) – in order, that is, to hold property in their own name and to exist as a collective entity before the law. To be clear, the Third Republic did not change this legal situation: French law was still very restrictive for nonprofit organizations. At the time which interests us (1870-1914), only 15 organizations on average each year were granted RUP by the Council of State, with no possibility of appeal.
That said, in 1901 the law of July 1st provided freedom of association, providing a new means for associations—if not foundations—to acquire some legal personality. Associations then could be formed without declaration or authorization. In that case, they had no legal personality. If they wanted to acquire limited legal personality (in order to take someone to court, receive small donations, contract in its own name, possess and administrate the subscriptions of their members and the establishments strictly required for their aims), they had to be registered by the préfecture and to be made public by an article in the Official Journal.
Indeed, in order to acquire full personality – especially the capacity to receive all kinds of donations and to buy premises and buildings – associations still had to get the precious RUP from the government. French law remained almost silent about foundations, which still needed RUP to be established. For this purpose, associations as well as foundations submitted to the same procedure: both had to file an application with the department concerned (before 1901) or with the ministry of the Interior (after 1901), who investigated the case by soliciting the opinion of the town council and diverse State employees. Government played then (and continues to play) a key-role in selecting private initiatives which could carry out their activity thanks to the RUP. But the government had to submit its selection to the Council of State before issuing decrees of RUP.
At the beginning of the Third Republic, the role of the Council of State was changing. It still discharged the dual function that it had been in charge of since its establishment in 1799. As the highest administrative jurisdiction, it judged cases relating to public authorities. As the highest government council, it advised the executive power on the preparation of bills, ordinances and decrees and on other administrative affairs, such as decrees of RUP. But gradually the Council of State was becoming more and more independent from the government, or at least from the executive branch of the French State. In line with its increasing independence, the Council in 1872 rendered justice déléguée (in its own right) and no longer justice retenue (in the name of the government). More generally, it was building for itself a reputation for impartiality.
As far RUP was concerned, the Council standardized its procedures (review of status, audit of budget, assessment of the reputation of members, etc.) and published criteria that would be used in approving or refusing the decrees of RUP. Such criteria specified, for example, that associations had to have a majority of French members, indicate a well-defined purpose, choose a specific title (terms such as “general”, “national”, “of France”, etc. were forbidden), reject proselytism if faith-based, and offer their services for free.
All that said, our research in the archives of the Council of State shows that these criteria were the result of an a posteriori reformulation more than a guide for State councilors. State councilors deduced them from decisions they made in the past, in order to help nonprofit organizations with their application. Actually, they ignored many of these explicit requirements when making their own decisions. For example, a British hospital got RUP in 1906. And in the same year, the Chemical Society was allowed to change its title to “Chemical Society of France.”
In fact, I found that the reasons why the Council approved (or did not approve) nonprofit organizations were not only jurisprudential (following the criteria explained above), but also political (according to government interests). Take the case of the German charitable Society of Le Havre in 1912, for example. This applicant fulfilled all necessary criteria for becoming incorporated, except for the criteria of being of French origin. To be fair, the Council had overlooked such a criteria before, for example, when it granted RUP to the Queen Victoria Memorial Hospital of Nice in 1906 and the Hispanic American Association in 1907. Yet in the case of the German charitable society in 1912, the Council of State, in agreement with the government, was reluctant to approve the society’s legal status out of fear of espionage during a period of international tension (and soon, open warfare). Given the political climate, it is perhaps not surprising that the Council found reason to reject the admission of prosperous German associations on French soil. Such concerns were explicitly expressed in the general assembly of the Council of State, as evidenced in archived reports. And yet, suggesting the Council’s own efforts to present itself as a body restricted by the rule of law, it chose to withhold these discussions from public notice, with public documents emphasizing the German association’s lack of French membership, experience and resources, points that the Council in reality did not take into account when rejecting the application.
This archival research on the Council and RUP procedures in the early years of the Third Republic suggests that there was a slight discrepancy between official standards and actual criteria in RUP procedure. In my article, I show that legal considerations came first when State councilors had to examine an application for RUP. But they were far from being the only arguments. Political, moral or practical reasons also played a part. As Councilor Henry Hébrard de Villeneuve explained in 1890: “One should not stick to an ideal.” Hébrard was then arguing in favor of the Protestant Ladies’ Charitable Society of Bordeaux, which, against the principles of the republican State, reserved its services exclusively for Protestants in need. His argument in favor of the organization was both practical and moral: if donors gave more when they were assured that their money would go to people of their same religious faith, it would be worth authorizing such discrimination. This was, he reasoned, because the organization’s ends focused on the common good of the whole by helping Protestants in need. After all, the group’s work would assist the State by releasing it from its social obligations toward these various needy Protestants.
Furthermore, archived reports of discussions in the general assembly of the Council of State bring to light how often councilors used arguments based on their own experience as members or even founders of charitable organizations. In other words, they determined the public interest of an organization by referring explicitly to their own individual experiences with nonprofit organizations. These State councilors did not see any conflict of interest in this situation. On the contrary, they claimed it as strong evidence for the public interest of an association. After all, according to their point of view, by definition, distinguished and honorable people such as State councilors could not involve themselves in projects that would not have been of “public utility.”
To conclude, my archival research on the Council of State during the Third Republic underlines the tangled motives in decision to grant RUP to nonprofit organizations: legal principles, political and moral arguments, practical considerations and personal and social preferences. Thus, it corroborates the long-standing interpenetration between public and private sectors, since State Councilors were close to members of organizations to which they granted the RUP—if they were not members themselves. It confirms also the narrow – and somewhat homogeneous – social base of the French State (Charle 1987, Baruch et Duclert 2000). In this regard, it falls within the sociological perspective which opposes, on one side, a French political model sanctifying the general interest (defined above and independent of any particular social interest) and, on the other side, reducing state actors’ decision-making processes simply to individual social experience. The originality of my research in this perspective is to contradict what Pierre Bourdieu termed the illusio (Bourdieu 1996) of the actors involved. It has been often said that French civil servants were convinced that they were working for the “general interest,” ignoring that they were actually pursuing their own interests. On the contrary, the archival material suggests that State councilors in the early Third Republic were not only conscious that their own social position affected their judgment but they proclaimed it as a strong argument in favor of their decisions. As educated, rich, powerful people, they claimed that they knew better than anyone what the public’s best interests was. At the genesis of the French welfare state, it was populated with actors—such as these members of the Council of State—who were aware of their own social positions; comfortable with these positions informing their decisions on behalf of the state; and who saw the value of continuing the presence of nonprofit organizations in the French state. They thus recognized the public interest of nonprofit organizations, not in terms of a disinterested, unselfish mission but in terms of a reflection of their own particular interests.
Chloé Gaboriaux is Assistant Professor of Political Science at Sciences Po Lyon, and Visiting Researcher at Princeton University for Spring semester 2019. She studies the political and cultural history of modern France. Her first book, La République en quête de citoyens (2010), traces the building of the Republic from 1848 to 1880. In her current book project, she focuses on the French Council of State as a regulator of nonprofit organizations from 1870 to 1914. She is editor in chief of Mots. Les langages du politique.
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