Consumerism versus producerism: a study in comparative law.

Author:Whitman, James Q.
 
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ARTICLE CONTENTS INTRODUCTION I. BEYOND THE CIVIL LAW/COMMON LAW DICHOTOMY: COMPARATIVE LAW AS SOCIAL SCIENCE II. CONSUMERISM VERSUS PRODUCERISM: A BRIEF HISTORY OF A DISTINCTION III. REFINING THE DISTINCTION IV. ATLANTIC CONFLICTS: ANTITRUST AND RETAIL PRICING V. REGULATING RETAIL: HOURS, MERCHANDISE, SQUARE FOOTAGE VI. CONSUMERISM, PRODUCERISM, AND THE CULTURE OF RIGHTS VII. CONSUMERISM AND PRODUCERISM ACROSS THE LANDSCAPE OF THE LAW CONCLUSION I believe we are on the threshold of a fundamental change in our popular economic thought, that in the future we are going to think less about the producer and more about the consumer.

--Franklin Delano Roosevelt, 1932 (1)

American consumerism threatens the globe.

--Hugo Chavez, 2006 (2)

INTRODUCTION

Is there such a thing as "consumerist" law? Does the spread of "consumerist" law pose some kind of danger to the health of human societies? There are politicians and intellectuals all over the world who say so. Many of them blame America in particular for exporting a poisonous brew of consumer-oriented law, empty materialism, and heedless waste of resources. Leaders of the hard left wing, like Hugo Chavez of Venezuela, are particularly vocal: Chavez has declared that American consumerism, marching hand in hand with American militaristic imperialism, threatens the globe. (3) But the hard left is not alone on this issue. There are also mainstream figures, especially in Europe, who express anguish about the corrosie spread of American consumerism in a globalizing world. Even the conservative European press sometimes rumbles about the American consumerist threat: for example, Le Figaro, a French newspaper that generally promotes a relatively benign view of the United States, ran an article in 2002 declaring that "American enterprises have disseminated veritable commercial traps for the young generation .... Cultural rootlessness is what American firms like McDonald's and Nike are selling to European youth." (4) American consumerism has many critics at home too-notably two prominent Harvard philosophers, Michael Sandel (5) and the late John Rawls, who decried the spread of an American style of "civil society awash in a meaningless consumerism" shortly before his death. (6)

Not everybody is a critic of American consumerism, however. For example, another Harvard professor, historian Lizabeth Cohen, gives consumerism credit for opening up political possibilities for American women and racial minorities: "Citizen consumers," writes Cohen in her 2003 book A Consumer's Republic, are people who are ready to make vigorous demands for rights. (7) Ralph Nader has, of course, made a major American political career saying something similar. And then there are legal scholars, like the eminent conservative Robert Bork, who insist on the supreme importance of consumer welfare in sensible economic legislation. "The only legitimate goal of American antitrust law," as Bork famously put it in his book The Antitrust Paradox, "is the maximization of consumer welfare." (8) Bork undoubtedly speaks for the large majority of bien pensant legal scholars in America today. Indeed, if we open a standard American antitrust textbook, we find the confident assumption that countries that fail to adopt the American approach will fail to prosper. (9) On the European side of the Atlantic too, there are proponents of the American way of doing things: "[T]he political discovery of the consumer," as one of them recently wrote in the Wall Street Journal, "is the best economic news of recent history." (10)

Whether they are for it or against it, most of these observers agree that the drama of globalization has something to do with the creeping spread of American "consumerism" to the rest of the world-and most of them write on the topic with some passion. Let us call it the "Wal-Mart Question," since so many critics worldwide regard Wal-Mart as the vector of American consumerist influence.

So how should legal scholars approach these often ferocious debates over the Wal-Mart Question? Surely we ought to have something to say. To be sure, it is hard to take figures like Hugo Chavez seriously; some of what one hears about consumerism amounts to little more than ranting. Nevertheless, it seems obvious that there is an issue here that deserves careful analysis. In particular, shouldn't specialists in comparative law be weighing in? After all, at the heart of the debates over consumerism lie claims about comparative law: that some legal systems are more "consumerist" than others; that American law in particular is a variety of "consumerist" law; that the spread (or as comparativists might put it, the "transplant" (11)) of consumerist law represents a force for deep cultural and social change and that a "consumerist" legal order will tend to transplant itself to societies throughout the globe.

Yet the sad truth is that comparative lawyers have contributed essentially nothing on the subject of global consumerism. Instead of wading into this debate, most comparativists continue to busy themselves with other topics most especially topics involving the well-worn contrast between the common law and civil law traditions. My hope, in this Article, is to do something to change this state of affairs.

I will focus on two problems. The first is the problem of defining "consumerist" law- a problem that turns out to be both vexing and fertile. As I will argue, "consumerist" law is best thought of as opposed to "producerist" law, odd and unfamiliar though the latter term may sound. If we classify modern legal systems according to whether they look more consumerist or more producerist, we can gain significant insight into the dynamic of leading controversies in the world. My second focus is on the question of whether consumerist law is inevitably transplanting itself, bringing what the American press calls the "consumerist ethos" (12) with it. On that score, I will voice some skepticism, contending that continental European law is in fact resisting American-style consumerism with some success. The Atlantic world is divided, I will argue, between a more strongly consumerist America and a more strongly producerist Europe.

Before turning to these two problems, though, I will begin with a bit of methodology-with a brief reflection on why comparativists have found so little to say about consumerism. Like a number of other thoughtful contemporary comparativists, I think the field needs to broaden its orientation. Traditionally minded comparative lawyers write in ways that reflect the concerns and interests of the legal profession, while neglecting the sorts of issues that preoccupy social scientists and political leaders. Thus, they focus on topics like the different jurisprudential approaches and procedures of the common law and civil law traditions, while finding little to say about the role of the law in different socioeconomic systems. The result is that comparative law scholarship often seems out of tune with the dominant issues of the modern world. Accordingly, our first step in attacking the consumerism problem should be to shake free from our comfortable habit of addressing ourselves to the community of lawyers. Instead, we should write for a wider audience of readers concerned about contemporary differences in social and economic orientation.

In particular, when it comes to the great Wal-Mart Question, we should develop an analytic contrast between "consumerism" and "producerism." The idea that there is a conflict between consumerist and producerist orientations may sound strange to lawyers, but it has been around for a long time. Early twentieth-century political theorists like Walter Weyl believed that there was a conflict between politics oriented toward producer interests and politics oriented toward consumer interests. (13) Contemporary social and political commentators say the same thing; for example, Benjamin Barber writes in his new book Con$umed that market society has witnessed the "dominion of consumers over producers." (14)

The basic idea behind what these authors say is simple enough. They argue that there has been a deep shift in the politics of industrial societies over the last two centuries. As Barber puts it, "productivist capitalism" has slowly given way to "consumerist capitalism." (15) What does this mean? It means that in the early phases of the development of industrial society, politics focused on the rights of actors on the supply side of the market-on the rights of producers (as well as distributors). Thus, traditional socialist politics emphasized the rights of one class of producers, the workers. But traditional industrial politics was not limited to socialism, and the traditional orientation toward producer rights was not limited to workers: there were also less socialistic varieties of traditional politics, focusing on the rights of other classes of producers and distributors-for example, the rights of competitors in a given industry to be protected against "unfair competition," or the rights of small retailers to be protected against big discount stores. Traditional industrial politics had many variants, on both the left and the right. But whether left-wing or right-wing, it was very broadly a politics of the supply side. It was a politics of rights and protections for producers and distributors--what we can call, for the sake of brevity, a politics of producer interests.

By contrast, the twentieth century has witnessed "the political discovery of the consumer," (16) especially in America. In the 1932 words of Franklin Roosevelt, we now "think less about the producer and more about the consumer." (17) This means that in contemporary America, politics focuses more on consumer rights than it used to--on rights and interests on the demand side of the market. Thus, instead of emphasizing producer protections like workers' rights, or the right of competitors to be safe from "unfair competition,"...

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