Behavioural analysis and socio-legal research: is everything architecture?

Abstract

‘New Architecture of Consumer Law’ and ‘Choice Architecture’ – these and other similar architectural references should not whitewash potential differences in the respective conceptual, methodological and normative underpinnings. Similarly, and more fundamentally, the term ‘behavioural’ is equivocal for it not only signifies modern behavioural economics but also more traditional approaches of other social sciences. It is important not to ignore potential differences which may of course exist in spite of that same wording. In fact, behavioural analysis has not only gained remarkable attraction with policy makers, but it has also largely replaced socio-legal research which used to accompany the making of European Consumer Law during the first twenty-five years or so of its existence. The introduction of the ‘better regulation’ initiative and impact assessments at the turn of the millennium are partly seen as the breaking point between those two approaches, given that they shifted the emphasis on potential effects of policy changes on consumer behaviour. Apart from this observation, however, the conceptual differences – or similarities – between socio-legal research and behavioural analysis are rarely discussed. After explaining the fundamental importance of models of human behaviour for consumer law, this paper argues that these two approaches start from fundamentally opposite assumptions: While behavioural analysis is based on the functional rationality of the homo oeconomicus with its focus on individual choice, socio-legal research roots in the value rationality of the homo sociologicus which draws instead the attention to social embeddedness. Even if the starting points are different, the question remains whether both models are about to converge or whether their divergences prevail. Due to the fundamental importance of those two behavioural models, the answer shapes the essential pillars of European Consumer Law’s architecture, not only some of its ancillary decorative elements. It determines nothing less than the architectural style, more precisely whether that style contributes to a coherent, harmonious ensemble, or whether it looks bitty and scrappy.