Varieties of Discharge: Political Economies of Consumer Bankruptcy Law

Abstract

The first ambition of this paper is to sketch a normative frame (a 'grammar') for consumer bankruptcy reasons. Following the methodology of a comparative structural discourse analysis it suggests a pluralistic value matrix integrating divers bankruptcy theories. The systemic order of this grammar allows integrating plural bankruptcy rationalities and at the same time may guide, yet not determine legislative and judicial decision-making. The structural typology offers a unified yet plural map of bankruptcy reasoning. Based on the developed frame of a political grammar of bankruptcy theory this paper suggest a four model typology of political economies of consumer bankruptcy law. The most common comparative political economy narrative of bankruptcy law is that of a fixed attribution of types of normative bankruptcy models to countries. The central hypothesis of this paper is that all political economic value positions reappear in every doctrinal question on the interpretation of bankruptcy laws. Not only does a variety of scholars bring up different political perspectives for interpretation. Also the legislative coding itself entails different underlying value decisions. The main part of the paper will run over the US bankruptcy code and the German insolvency code ('Insolvenzordnung') to highlight some selected regulative elements in that respect. The main overall result of this comparative discourse analysis both of bankruptcy theories and legislative normative underpinnings is the fact of value pluralism in bankruptcy laws. This variability of political value commitments is reflected within many deep transformations of bankruptcy regimes in the legal evolution of most national jurisdictions. The evolution of bankruptcy laws proves by its alternation of ideological changes the deep political dimension of bankruptcy regulation.