Re-theorising Consumer Law

Abstract

This article considers how consumer law is influenced by alternative ethical visions of the ideal market order. There has been previous work, for example, on the relatively narrow question as to how competing judicial ethics affect interpretation of rules on standard terms and commercial practices-the rules being interpreted by some judges in ways that prioritise business self-interest and consumer self-reliance, and by other judges in ways that are more protective of consumers. This article is significantly more ambitious. It further develops a theoretical framework based on competing ethics, and considers how this framework can explain consumer law in general. This breaks down into several sub-questions: What are the key features of this competing ethics framework? How does it improve our understanding of different visions of consumer protection? How are these different visions reflected in the actual rules? These are the ‘ethics and protection’ questions. Then there is the question as to how competing ethics may affect legal clarity and certainty in the consumer law regime-the ‘ethics and clarity/certainty’ question. The remainder of this Introduction explains how the answers to these questions are developed over the subsequent Parts of the article, and why these issues are so important