Consumer Rights and the Law

The concept of law for the “protection” of the consumer raises one immediate question: who is the consumer that law seeks to protect? What is the particular character of the consumer, and which interests may be associated with this individual that require legal protection? This simple question, however, immediately confronts us with a philosophical debate on consumerism and a myriad of evaluations of the value or nonvalue of the figure of the consumer. To take but one infamous paring of the postwar period, we can compare and contrast the rational consumer who is a hero to the free market with the nightmare vision of a property-less individual, who is dedicated to “sacred” wealth accumulation, but who never achieves “true” ownership since the consumerism of advanced capitalism is a chimera, furnishing us only with goods that have no lasting or socially transcendent value (Arendt 1998, 61).

Seen in this complex light, the legal theory of the consumer is perhaps better addressed through the more pragmatic lens of the question of how—encountering the consumer—the law has applied theoretical constructions of consumption. Nonetheless, this approach raises its own problems. On the one hand, the figure of the consumer is not a monolith, but is instead only one of many roles played by any one human agent—as worker, producer, or economic agent—always with varied personal aspirations and views of the value of consumption in mind. Equally, the law is never simply law, but is also highly differentiated, breaking down into distinct areas of contract, regulatory, labor, and competition law, each with its own contradictory policy goals in relation to the value of consumption. The notion of a coherent “law of the consumer” will necessarily remain elusive as different human agents interact with distinctly programmed bodies of law, experiencing the law either as a weapon with which to pursue preferred patterns of consumption or as a constraint on economic behavior.

However, one constant may be identified. For all that law is also prone to manipulation by extralegal forces of politics and economics, and for all of the fact that—when viewed as an autonomous social institution—it also faces considerable challenges of coordinating its various social steering mechanisms, law is nonetheless always concerned to maintain its internal normative integrity. Law is not simply a steering mechanism, but also aspires to normative status as a “good” mechanism. Applying this statement to consumption, law's encounters with the consumer are thus also about the legal effort to translate the “fact” of consumption into a normative “good” of consumption: complex and flawed though they might be, legal encounters with the consumer are indelibly marked by an aspiration to establish a regulatory framework that appropriately reflects the social, political, ethical, and legal mores of the society to which it applies.

The following traces out a model of legal encounters with the consumer, identifying three ideal types of legal consumer—the sovereign consumer, the citizen consumer, and the enabled consumer. The sovereign consumer and citizen consumer are children of national legal orders. The notion of the enabled consumer, however, has only recently been given a degree of concrete expression within supranational and global legal orders.

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