Comment on: Theorie, aktie en recht bij Udo Reifner. Interview over rechtshulp, konsumentenrecht en kollektief handelen. 11 Recht & kritiek (1985), 4: 320-350.
by Nick Huls
I first met Udo on June 16 1984, when he addressed the Dutch legal aid movement during a Conference celebrating the 10th anniversary of the Amsterdam Legal Aid bureau. When I entered the room to shake hands with our German guest he whispered to himself ‘Jetzt kenne Ich alle Spezialisten in Konsumentenkredit’. Just like Udo I had defended my PhD on that topic, he in 1977 in Berlin, I in 1981 in Utrecht. In my copy of the conference brochure Udo has written:
Solid(t)aire (Sartre), that is the question (Shakespeare).
Udo’s paper was called ‘Theorie und Praxis struktureller Rechtshilfe’ in which he described the collective actions by the Verbraucherzentralen against malpractices of German banks.
I was impressed both by the theoretical breadth of his approach and its practical relevance, which was completely new to the Dutch legal aid scene.
Consequently Jo van Saasse and myself travelled in 1995 to Hamburg to conduct an interview with Udo for Recht & kritiek, the Dutch aequivalent of Kritische Justiz.
It was a Herculean task to type out the texts of ten hours of interviewing and it took us many more hours to compose an orderly tekst of thirty pages, the longest interview ever published in that journal.
In the Introduction we portrayed Udo first as an intellectual of the left who loved private law. Second as a pragmatist who designs well reflected mass actions and third as someone who places the agency of human beings at the centre of all his work.
For this blog I highlight the key issues of the interview that offer some insights in the ideas of the young Reifner, who was 37 then.
Arbeit ist Konsum, Konsum ist Arbeit
In that period of time the focus on private law was remarkable because left wing legal aid lawyers concentrated on labor and housing law. Consumer law was was seen as a bourgeois affair for the (upper) middle class.
Udo argued – quoting Marx – that labor and consumption are both productive activities. When I eat, I reproduce myself, when I perform for someone else, we call it labor. Unpaid labor by the housewife is considered consumption if she goes to the shop to get food. But if the food is brought to the house by the supplier, it is labor. This difference between paid and unpaid labor is perverse and indefensible
Reifner argues for a sort of progressive economic analysis of law: ‘If I leave out every activity that does not generate a profit, I am with Posner’s depressive analysis. I include every activity with societal benefits.’
Modern consumption takes a lot of time investment of the consumer, including his so called free time, i.e. time after work. Organizing your financial affairs for instance is a complex matter and requires a lot of unpaid work .
Furthermore the worker does not only value the wage that he receives from his employer but also what he can buy for it. His purchasing power is the reflection of his earning power. Consumer issues are indirect labor issues. So consumer law can be inspired by the achievements and the strategies of the labor movement and labor unions.
Collective consumers actions
This was demonstrated by the mass consumer action in the field of instalment sales. Lower class people were legally bound by usurious contract terms. They were not used to bring their grievances to court, although they were interested in the legal dimension of their problems. During group consulting hours ‘Sittenwidrigkeit’ (against good morals’) emerged ‘bottom up’ from the interviews with these clients of the Consumer Bureaus. The legal concept, embodied in § 128 of the BGB (Bürgerliches Gesetzbuch) provided much ‘mobilizing power’ at the collective level. It inspired clients to protest together against their explotation, one of the consequences of Caplovitz’ law ‘The poor pay more’.
An important author that inspired Udo was Josef Esser, who argued in Vorverständnis und Methodenwahl, that in private law courts motivate in their judgements ‘lege artis’ results that they have found elsewhere. Udo used Esser’s approach to infuse new social values in the existing system of private law.
A second author he mentioned was Louis Althusser, who showed in ‘Theorie und theoretische Praxis’ that law is not just an object for analysis for the question what is good and bad. Law also shows avenues for practices. Law exists of words, ideas and forms of consciousness. Law offers schemes of interpretation of reality in the form of judicial decisions. It is not just an ideology, but it is also laid down around people in organisational structures. Therefore it is interesting to study the law itself. A progressive lawyer does not have to be a critic of society or an empirical sociologist.
Thirdly, he mentioned historical studies on the labor unions in the beginning of the 19th century and the brave conduct of some liberal lawyers during the Nazi-era.
Access to justice
Reifner differentiates between three kinds of legal aid. First, the Fürsorgemodell, that is a kind of support for poor people that are ignorant about their rights and are only in need of care, because the law cannot solve their problems. Second, the service model practised by commercial law firms where clients pay for legal services. The model allows for autonomy of the client, but only if he can afford to pay the lawyer. Third, the collective interest model, that is developed by the trade unions as a form of collective solidarity, based on monthly contibutions and risk sharing.
Based on this third model Reifner c.s. developed a new form of ‘soziale Execution’ (Kahn-Freund) that was not directed towards the courts. Judges don’t focus on the realization of rights, they just say what the law is. This new way to get access to justice focusses on collective actions by the affected people themselves. Via ‘Rechtsdurchsetzung‘ it was possible to confront the law and and legal institutions with social interests that were not included before. So the legal system was forced to adapt and to change. Labor law has showed that social pressure is effective and therefore pressure must be used also by other groups in society
The project changed the focus from jurdification to teaching the clients how they could help themselves. The people were stimulated to inititiate contacts with the banks about their complaints.The clients felt empowered when they realised that they were not alone, but that ‘their’ bank had also treated many other customers badly. This helped them also to overcome their individual ‘guilt complex’
The clients were also asked to collect information about the bank that had charged them too much interest. This information was collected via ICT and personal computers, indispensable tools for this new kind of assistance. In Udo’s words: ‘Collective action is well informed action’.
Looking back on the interview
More than 30 years later many of the ideas formulated in 1985 are as relevant now as they were then.
The boundaries between labour and consumption (Arbeit ist Konsum, Konsum ist Arbeit) have been blurred considerably in the meantime. Many activities that traditonally belonged to the private sphere have been outsourced to the market of professionals and commercial delivery, for instance day care for babies and dog walking services. At the same time many consumers have commercialised private items of the consumption sphere: from AIRBNB to taxi services with their private cars.
Consumer law has become an integral part of the so called social fields of law. Collective class actions against powerfull banks are brought to the courts in all developed legal systems. Most of the time they are supported by collective action in the media.
Two years after the interview, in 1987, Udo started the IFF in Hamburg, in which many of the preceeding ideas were materialised. The Institute became a prominent and sustainable center for international conferences, multi-disciplinary studies, collective actions in Germany and in Europe. IFF also developed towards an inspiring intellectual home for many scholars, practionners and activists from all over the world.
I consider Udo as a visionary, who was far ahead of his time in the 1980s and who paved the way for many new initiatives in the field of consumer credit, debt and financial services. Over all those years he has shown a remarkable and rare combination of 1968 idealism, detailed legal knowledge, impressive financial and technical expertise and political and intellectual resilience.
In September 2017 I met a member of the International Association of Consumer Law during a colloquium in Pretoria. We gossiped about our mutual colleagues in the field. She asked me ‘Is Reifner a Marxist?’ In my answer I referred to the last question of our interview: “Udo, you come from a family of missionaries. Aren’t you also one yourself?” (After a long silence) he replied: ‘Yes, a Prediger, a Richter, or another figure from the Bible’’.
Marx without Missionaries
Comment by Udo Reifner
What a pleasure to be confronted with a long conversation between Nik Huls, Jo van Sasse and me. Since it was published in Dutch my access to it was limited. The question in the title I suppose is rhetorical. Nik knows as much about Marx as I do. Chinese posters put Marx first followed by Engels, Lenin, Stalin and Mao. But unlike the others it is nearly impossible to be a Marxist. Marx was a philosopher and not a Buddha, Christ or Muhammad. His 11th thesis on Feuerbach engraved in his tombstone at Highgate („Philosophers have hitherto only interpreted the world in various ways; the point is to change it.“) has always been referred to with its second part. But this is not the part which explains his own action hidden in the first part: Philosophers can only interpret the world in various ways but not change it.
Marx’ oeuvre is therefore in various ways contradictory. It is basically split into the early writings which still influence my understanding of methodology. The heuristics he especially together with Engels provided to the socialist labour movement have never attracted my sympathy. In this I feel Dutch. In the interview we speak about insights derived from the Deutsche Ideologie and the Grundrisse. The introduction to the critique of political economy as well as Althusser’s analysis of the Theories on the Surplus Value were more important than the heuristics he provided to the socialist movement in the Capital. Where ever Marx draws sociological, legal or political conclusions from his economic insights it is deeply flawed. As Poulanyi pointed out there is no such thing as a capitalist society but only capitalist thinking and acting in society. This was especially true for the time when Marx wrote his works.
My insights on labour and consumption, productivity, collective versus communal had learned much from this Marx who remained nearly unknown by all who misused his name for politico-religious purposes especially during fascism and the cold war. Today again our historical wealth inherent in our legal concepts and phrases is threatened. In the digital age language has been reduced to communication, words are only of heuristic value and have lost their sense. In my trilogy on money I have tried to reconstruct the cultural history inherent in these words to provide what could be called our cultural heritage in legal and economic thinking.
The discussion between Dutch liberalism and religiously rooted German communalism allowed me to discover justice as an own political basis of action. I define justice as equal freedom for the other Its goals have to be adjusted to the wishes of each single individual. Having read Nik’s recent book on Ruanda I still admire his deep respect for the self-determination of people and individuals. In some way I have detected my Dutch roots. My grandparents lived in Java in Dutch India where my mother who just died at the age of 101 was born.
The notions Nik mentions in this contribution are the core elements also of my recently published own résumé which has got attention in this Festschrift. But in some way the meanings have changed. Access to Justice projects with the Dutch Rechtshulp and Jusbus movement in Amsterdam, the London Legal Action groups, the public law firms of our friends in Madison emphasized the court system. In English it can also mean Access to a Judge and in fact today American Poverty Law describes only this kind of facilitating law suits. Today I would be more critical about institutionalised justice. The law providing justice is more effective if used outside the court system, rooted in morals, ethics and convictions. Modern legislation has rendered this use nearly impossible. Principles and general rights have been buried under millions of rules. Kafka’s The Trial has become a synonym for law as such and not only for legal procedures.
The second element Nik Huls mentions is collective action. While in the 1980ies collective was linked to communism, to class struggle or trade unions accumulating democratically unjustified political and legal power while others identified it with public welfare, actual legislation shows many positive references to it where collective class actions, collective agreements, collective consumer protection in bank supervisory law and collective interest with regard to environmental protection and basic needs is addressed. A Musterfestellungsklage which claims to concentrate on the collective essence of a consumer problem was just enacted in Germany.
Is this a breakthrough? I do not think so. We gained the notion and lost its sense. Collective action has degenerated into a tool to cut costs in civil procedure, provide legitimacy for self-declared representatives of certain interest (Verbandsklage), aliment law firms in class actions and replace the attorney general’s fines and sanctions through punitive damages.
Collective action then was based on individual interest that were “collected” to make an adequate use of law (see below Eva Kocher). The present move collectivises rights and turns their legally defined essence into in a communal form of law enforcement. Germany the country of Dichter and Denker has been denounced by Karl Kraus in 1909 long before Nazi-Germany as a country of Richter and Henker. It is hard to assume that in this country judges are prepared to understand individual social interests defined in individual freedom by people with social needs. Collective procedures may lead to an ever more communal or individualistic use of law. (8.11.2018)