Description
Modern consumer law incorporates empirical insights about consumer behaviour into legal analysis. Empirical evidence from the social sciences has focused on cognitive biases, i.e. systematic deviations of consumer behaviour from the model of a fully rational economic agent. Behavioural law and economics is the dominant frame of analysis that integrates these empirical findings into consumer law. This economic framework mainly considers consumer autonomy as a means to promote welfare or as a constraint on welfare-enhancing paternalistic interventions like nudges, which can fail to respect individual autonomy.This paper aims to move behavioural consumer law in a different, paradigm-shifting direction. It argues that autonomy theory rather than an economic framework can operate as the foundation and frame of analysis for behavioural consumer law. An advantage of the autonomy framework is that it can adequately address the autonomy challenges that consumers face in digital environments. Modern-day digital environments are replete with manipulative design practices (dark patterns) and algorithmic and automated architectures like personalised recommender systems. These developments challenge consumers’ decision autonomy, and the economic framework risks failing to take these harms to personal autonomy into account.
So far, scholars have criticised the economic framework for sidelining autonomy, but they have not yet developed an alternative autonomy framework. The paper addresses this research gap and unanswered question. It shows that autonomy theory can function as a foundational value for consumer choice and an ultimate objective of consumer law. Autonomy theory can function as a normative benchmark against which actual consumer behaviour is assessed. Consumer biases are defined relative to autonomy theory rather than rational choice theory. Such a novel conception of behavioural consumer law leads to significant changes (compared to behavioural law and economics) in terms of what consumer biases are, how they are caused and when they warrant legal intervention.
| Period | Jul 2023 |
|---|---|
| Event title | 18th International Association of Consumer Law Conference |
| Event type | Conference |
| Location | Hamburg, GermanyShow on map |
| Degree of Recognition | International |