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The Many Concepts of Social Justice in European Private Law

The Many Concepts of Social Justice in European Private Law

Edited by Hans-W. Micklitz

This insightful book, with contributions from leading international scholars, examines the European model of social justice in private law that has developed over the 20th century.

Chapter 16: Social Justice in the Office of Fair Trading versus Commutative Justice in the Supreme Court

Chris Willett

Subjects: law - academic, european law, private international law


Chris Willett 1 1.1 INTRODUCTION Basic Arguments This chapter considers the pattern of social justice in key parts of UK consumer law. Ultimately, it seeks to highlight (i) how general principles and preventive enforcement (in significant part brought about by Europeanisation) have laid better foundations for the promotion of social justice values in UK consumer law; but (ii) the institutional tension that may have arisen in the UK between values of commutative justice that are favoured at the highest judicial level and values more oriented to social justice that are promoted by the key regulatory body, the Office of Fair Trading (OFT). The argument is set out as follows. The remainder of this first section sketches the issues that arise in business–consumer relationships (that is, in relation to freedom of choice and substantive outcomes) and the broadly different attitudes to these issues that might be taken from perspectives prioritising self-interest and self-reliance and (on the other hand) perspectives prioritising fairness and protection. Then these issues are set in the context of ideas of commutative and social justice. Essentially, the key points here are (i) the specifically protective normative reference point of social justice, in contrast to the lack of a particular normative reference point in the case of commutative justice, and (ii) the distinction between the focus of social justice on the collective dimension and the focus of commutative justice on the individual dimension. Section 2 then highlights a shift (driven by Europeanisation) from the traditional UK model of...

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