by Hans-W. Micklitz
I do not remember exactly when I met Udo for the first time. It must have been in the early 1980s, he had already defended his phd, I was in the middle of writing mine. What I recall from our first meeting is what makes Udo unique – when you address him and he answers, he shuts is left eye, so as to even stronger fixate you with his right eye. This has not changed, neither his commitment to consumer credit, consumer law and consumer policy. Udo’s academic life turns around the consumer, finance and money. In his phd he set the tone – Alternatives Wirtschaftsrecht, an alternative – a different – economic law, one that is pursuing the social dimension in economic transactions. I got engaged with his arguments long before we met personally.
When Norbert Reich left the then Hochschule für Wirtschaft und Politik in Hamburg, Udo applied and became his successor. The HWP took a courageous decision much in line with the then young university of Bremen and the Fachhochschule für Wirtschaft in Berlin. Udo had a lot to offer, a double qualification as a lawyer and a sociologist and an extensive list of publications, on consumer credit, on legal advice and on his research of law during national socialism. The much higher stakes resulted from whether the City of Hamburg would approve the committee’s selection. The HWP was regarded as a left-wing academic institution, rightly so. Many of the debates in which I participated between 1976 and 1981 turned around internal conflicts in the HWP between the various strands of the Leftist movement. There was political pressure from the outside to come to a more balanced corpus of academics. Udo went through the procedure easily and took office in 1982, if I remember it correctly. He was the right person at the right moment in time.
For a couple of years we remained tied together through a research project that Udo run on what could best be termed as a German version of what the Americans call public interest litigation. Together with the regional consumer organisation, the Verbraucherzentrale Hamburg, the project explored and worked on empirically sound strategies in using law and litigation to improve the position of the consumer in the market and in the society. The project was financed by the Federal Ministry of Justice in a government which was led by the social democrats. Exciting times. Our path parted, I joined the newly established Centre for European Legal Policy in Bremen, Udo remained in Hamburg and began building up his own institute, outside the university, as a legal self-standing and self-financing body.
The ‘Verbraucher und Recht’ functioned as a stable link for the next 20 years. Norbert Reich brought us together: Udo Reifner (consumer credit), Klaus Tonner (travel law), Fritz Bultmann (Unfair terms), Walter Stillner (unfair commercial practices and myself – Unfair terms). Doris Schneider-Zugowski from the Deutsche Gewerkschaftsbund provided the seed money and Ingrid Burghardt-Falke guaranteed a powerful commitment of Luchterhand to get the new journal of the ground. The first two decades of Verbraucher und Recht were stamped by the constant search for money in order to finance the editorial work. Managing editorship went through different responsibilities and transformations, from Klaus Tonner to myself and from there to Udo. Each of us three had his own vision of where the focus should be. For Udo it was consumer finance, what else could it be! The different jackets of Verbraucher und Recht document different periods of leadership, from a smaller to a bigger format, from white jacket to a read one, from changing categories around which the content was built.
After Udo and I had left the Verbraucher und Recht, there was no longer an established forum of intellectual exchange. We met occasionally on conferences, ever more outside Germany. Our last meeting took place in Porto Alegre in 2017 within the frame of the International Association of Consumer Law. I presented my view on the tri-partite consumer image, the vulnerable, the confident and the responsible, each of the three being associated to particular legal substantive and procedural requirements. Udo disagreed loudly and firmly. Breaking down the consumer into different categories implies, this was his argument, a weakening of the consumer status. The consumer must be seen as a class, just as the working class. This was exactly one of our first discussions when we got to know each other. Who is the consumer, legally speaking and how can he or she be defined, conceptualized? is there a parallel between the worker and the consumer, the working class and the class of consumers? A debate which is back on the political agenda not only via the ongoing legal fragmentation but also through the sharing economy and the new model of the prosumer.
Udo and I disagree on the notion of the consumer, maybe also on the role and political function in consumer law. I assume that in Udo’s eyes I have become ever more conservative since I left the Hochschule für Wirtschaft und Politik in 1982. Udo stood firm over all these years. His trilogy on ‘money’ demonstrates like a red thread where Udo sees consumer law and policy to be placed. Maybe we are too old to fight. However, Udo and I had many fights and what I appreciate most, it is possible to disagree with Udo, even in strong language, but then the controversy ends with a joint dinner in a wonderful and pleasant atmosphere.
Udo, I wish to pay my deep respect for your lifelong commitment to consumer law and policy. We owe you so much and I owe you many wonderful debates which helped me to clarify my own position.
Who is the consumer?
Comment by Udo Reifner
Our early acquaintance and friendship was embedded in the political struggles in Hamburg and Berlin between 1975 and 1986 which strange enough for today had its repercussions in a legal debate on consumer law. At this time doctrine still assumed that consumer law as an own legal discipline was unthinkable. The rule of law would be endangered if one group of people in society would be preferred to another. Social purpose of action should not affect the meaning of the law. Consumption was no legal and not even an economic concept. It was the buyer in the sales contract and the demand side in retail business which defined what was needed to organise a market economy which was supposed to be just in itself. Consumption was seen as a sociological category pointing out to procedures which happened outside the market mechanisms.
Due to the important role critical theory of the Frankfurt School had played in 1968 consumer law was also identified with left political thought. The first generation of consumer law activists like Norbert Reich, Thierry Bourgoinie, Ewould Hondius, Nik Huls, David Trubek, Jean Calay-Aulois and Bernd Stauder were all close to sociology of law when they laid the foundations of what today is generally accepted as consumer law. Norbert Reich wrote his dissertation at the University of Frankfurt on Sociological Jurisprudence and his habilitation on Socialism and the Law. His project leading to the book “Consumer and the Law” at the School of Economics and Politics in 1976 reflected the sociological orientation.
In a special issue of the Journal Democracy and Law (DuR) published in 1976 two fellows of Hans in Norbert Reich’s group of assistants, Klaus Tonner and Hartmut Wegener, together with Enzo Roppo (Italy) and myself published concepts of what could be a consumer in the law. It was no surprise that labour law was taken as a preferred example. It had developed outside the traditional canyon of civil law concepts. It shared dependency and lack of market power. Collective agreements in labour were similar to standard contract terms which Carl Llewellyn and Ludwig Raiser had long before denounced for the sellers’ lack of respect for the individual will of buyers. Hans rightly described them too as collective law which only this year I have introduced into our handbook on consumer credit.
Roppo and Tonner remained closest to labour concepts evoking a concdept of consumers similar to workers. My own contribution was on consumer credit. For me consumers were defined only by the purpose of their activity: consumption. Unlike dependent wage workers they did not form a class. Everybody can be a consumer. I doubted that consumption is such a strong motivation that it will form the personalities and induce them to act jointly. I made this clear in my 1978 dissertation and since then in especially recent publications. The core element of my consumer theory remained the “social purpose” consumers have when they acquire the use of a good or a service for ever (sales contract) or temporarily (rent contract) If this purpose was frustrated by reasons stemming from the lender’s sphere I argued the risk should not be carried solely by the consumer. (see Thomas Wilhelmson in this Festschrift)
With our project on life time contracts (see Luca Nogler’s contribution) we developed a new inside into the relation between labour and consumer law. Its resemblance does neither stem from the qualities of the persons involved nor from the similarities of their purpose. It is mainly the relation which consumption and labour have with Life Time of those who use means of production as well as of consumption made available by its capitalist owners. In my Sociology of Money I spend some time on Karl Marx Insights and Misconcepts especially with regard to his class theory. The personalization of interests confounds collective action and other identifications of people as consumers like either as a community, a class, a role or through the invention of a special group of “vulnerable consumers”. Personalising labour as worker, consumption as consumers creates the fiction of a feudal community which then only needs a leader who defines its interest. It was exactly this which the socialist part of the bourgeois revolution wanted to replace by collective action. Communal action is inadequate in a globalised economy. Hierarchy, hostility and subordination are linked to this personalisation which presently becomes so important in the nationalist movements all over the world.
Consumers are we all, all equal. Defining what we assume to be our good life individually makes us free. Consumption is the only human interest which corresponds to a total equality. The more we are able to identify the substantive elements of consumption the closer we can be to the ideals of 1789.
In 1978 such insight was not so easy to defend. Citing Marx in my dissertation earned me the label Marxist and exposed me to a delay of one year in the process of access to my second job. (see the contribution of Ulrich Krüger) I then withdrew my application on habilitation advised that otherwise I would face a nationwide stigma from political rejection. The same I did with the application for a chair in Hamburg where I was already placed first. I had a vice. I was on the famous list issued by the Bund Freiheit der Wissenschaft which had been distributed to all potential job provider for academia in Germany. People may know from the more famous US McCarthy list that if you once got on it you stay there forever. But did those freedom fighters know anything about Marx? I doubt it. They knew that Marx represented evil and that class in German (Klasse) led to class struggle and to communist dictatorship. How could you object? I learned from my research into the prosecution and murder of Jewish lawyers in Germany supported or tolerated by the pairs I had to be very sensible maybe more than necessary.