"Co-Producing Market Boundaries: For-Profit and Non-Profit Organisations Before the Law in Nineteenth-Century France"

Nineteenth-century France was characterised by a movement towards market liberalisation, in which the state played a significant role. However, control over non-profit organisations remained unchanged throughout the century. The law already distinguished between 'sociétés’ established for profit and ‘associations’ prohibited from sharing profits. The former were encouraged by the state and defined in the Civil Code, while the latter were forbidden without authorisation and only appear in the Penal Code. Nevertheless, the distinction between profit-making and non-profit-making activities was not as clear-cut as legal texts suggested. Disputes over this boundary occurred between businesses, associations and public authorities at national and local levels. In other words, this boundary was still being defined when Europe went to war in 1914. My contribution aims to trace the history of this co-creation by studying how the law has been used by different actors. First, I will focus on the flexibility of the legal statuses adopted by private initiatives. Until at least 1901, many non-profit organisations were registered as real estate or commercial companies, as this was considered to be more favourable in court. Secondly, I will demonstrate the efforts of the Conseil d’État to consolidate the boundary between non-profit activities and commercial enterprises, when the founders of the Republic were trying to establish a welfare state without disturbing the market. In its advisory role to the government, the Conseil d’État only encouraged philanthropy if it was unlikely to harm commercial interests. In its role as a supreme court, it often supported companies when they sued municipal public services for unfair competition. But the Conseil d’État did not always succeed in making the market the ultime criterium for volontary and public services, which also developed independently – and sometimes against – the market.