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Capitalist global processes of production and consumption are unjust. Social movements have been claiming this for decades. Production for private consumption requires an extensive use of natural and finite resources, which we are depleting. Many goods we consume in the European Union are primarily produced outside of the Member States in a manner few would not regard as morally wrong (e.g., exposure to toxic chemicals and excessive heat for workers, sexual harassment by employers, and long working hours). If we extend our often anthropocentric perspective beyond the human-animal sphere, then it is difficult not to acknowledge that our consumption of animal products involves equally morally troubling practices. Supranational institutions and organisations, like the European Union and the United Nations, have decided to address these issues by promoting sustainable production and consumption.

My argument here is that capitalist production and consumption processes are structurally unjust and that EU consumer law has traditionally supported and entrenched this structural injustice by favouring commodity exchange over social justice concerns. The EU agenda on sustainable consumption continues along these lines. Centring on consumers’ individual responsibility and choices, EU consumer law maintains at its core freedom of contract and the expansion of the market. The focus on individual actions betrays a failed understanding (or deliberate neglect) of the structural dimension of the injustice of production and consumption processes. Keeping in mind the structural nature of the problem, it becomes evident that the responsibility to remedy injustice cannot be limited to consumers’ individual sphere but needs to become institutional by radically rediscussing European private law.

I. Structurally unjust production and consumption processes

When I say that capitalist global production and consumption processes are structurally unjust, I mean that the injustice is not (only) caused by individual wrongs but rather by the existence of an unjust structure and that, for this reason, it cannot be remedied by individual actions.

In her consequential book Responsibility for Justice, Iris Marion Young presented the most developed account of structural injustice. Young explains that structural injustice results from the cumulative action of individuals and institutions. Their actions are not voluntarily directed at creating injustice; instead, they are morally and legally accepted for the most part (Young 2011, 52). In other words, they are considered normal within a certain society and not to be deviating from accepted norms. Irrespective of this, in conditions of structural injustice, these actions contribute to strengthening social processes that systematically subject some groups to oppression and domination. People’s social positions within a structure––influenced, for instance, by gender, race, ability, class, and, importantly, their intersection––in fact, determine one’s vulnerability to oppression and domination.

To sum up, in conditions of structural injustice, we cannot identify a single action that caused a structure to be unjust because injustice originates from the functioning of a whole system. Two things follow from the above: First, individual actions cannot remedy structural injustice––It is necessary to collectively change unjust structures through institutions. Second, doing structural injustice critique means that accepted background conditions are rediscussed.

Looking at consumption and production through the lens of structural injustice (the same example used by Young), it results that consumers do not act out of an unconscionable desire to oppress and dominate workers or harm nature. As further discussed below, unrestrained consumption is morally uncontested in our capitalist society; it does not deviate from the norm. Instead, it is institutionally encouraged, and the law plays a crucial role in strengthening this understanding and providing instruments for consumers to pursue their morally irreprehensible limitless desires. Consumers’ actions are socially influenced and (somewhat) constrained: they are a physiological part of a production-driven capitalist society that relies on consumption (Marx 1857). The prerogatives and advantages we have under capitalism are the background conditions within which individuals act. My aim in considering consumption from this structural perspective is to highlight that EU consumer law’s focus on consumers’ responsibility is ill-placed. A structural lens, with its focus on social positions, for instance, illuminates that while represented as a rather undiversified category, consumers themselves occupy different social positions that may limit their ability to change their behaviour. But even when consumers can change their habits (e.g., they can afford to), the question arises: Is consumers’ individual responsibility the morally and politically right way to remedy structural injustice?

II. Yesterday: EU consumer law supports structurally unjust processes

One may point out that the problem of structural injustice is that it does not attribute liability for having caused the injustice to anyone in particular. Consumers contribute (for the most part) unintendedly to structural injustice in global production and consumption processes. The same cannot be said about private law, which is created by political institutions pursuing specific objectives. I submit that European private law supports structures of injustice (cf. Mantouvalou 2023) and not that it is one among the many “acts” with unintended consequences that pertain to a structure. The law cannot be mistaken ontologically as something with no authors or addressees. I said that EU consumer law has traditionally supported structurally unjust production and consumption processes. Fundamentally, I mean that the law has invariably given precedence to commodity exchange over social justice concerns, and by doing so, it provides the instruments through which structures of injustice can continue existing.

Let me concretise this statement with one example.

While the main objective of EU consumer law is consumer protection in B2C relationships, the underlying rationale expressed by its legal basis (114 TFEU) is that its rules will allow the internal market to expand (i.a., Bartl 2015 and 2018; Collins 2018; Hesselink 2007; Micklitz 2009; Weatherill 2016). Because the regulation of consumption is seen as an instrument to further the market, it follows rather naturally that one of its main characteristics is to put minimal restraints on the circulation of goods. Consumerism is encouraged because it builds the market. In fact, while EU consumer law limits businesses’ freedom of contract, it would be a mistake to understand EU consumer law as the reign of limited freedom of contract for consumers. I am referring, in particular, to the lack of rules on invalidity and voidability of contracts on the basis of immorality in EU consumer law (cf. Tjon Soei Len 2017a; Tjon Soei Len 2017b; Tjon Soei Len 2015). Consumers’ freedom is limited by rules on immorality of national legal systems of private law (cf. Colombi Ciacchi and Mak 2020), but I find that a shared understanding of consumption practices which may be considered immoral should have a place at the EU level. The lack of general private law competence has not, after all, prevented the EU legislator from pervasively intervening in the substantive control of the contractual content of consumer contracts (see UCTD). Excluding the moral limitations emerging from national legal systems of private law, in the absence of norms limiting the circulation of goods for reasons of morality, under EU consumer contract law, a consumer can enter the market to obtain virtually any goods, irrespective of its origin in terms of production or its impact on nature. With this, I do not mean that there are no rules on the origin of products (cf. also Psagot) or––relevantly, in recent times––on their environmental and social sustainability. Instead, I am saying that a consumer’s substantive freedom of contract is not impaired.

The unrestrained consumer contract, therefore, is one of the instruments through which structural injustice in global production and consumption is sustained. The oppression and domination of a young girl working under exploitative and degrading conditions are, for instance, legitimised and sustained also by these contracts supporting consumers’ daily actions (cf. Tjon Soei Len 2017a). Similar considerations would apply to the legitimisation of harmful effects on nature. My aim here is to point out that not only does EPL support these injustices, but it also contributes to making them structural by emptying processes of production and consumption of any justice concern. It legitimises and, in fact, encourages consumerism as a morally unproblematic background condition. When we claim that something is structurally unjust, for Young, ‘we are saying precisely that at least some of the normal and acceptable background conditions of action are not morally acceptable’ (Young, 107). The law contributes to the creation of this normalcy and acceptability of capitalism’s injustices.

III. Today: (Still) capitalistic EU sustainable consumption strategy

From 2019, the EU has implemented policy strategies and legislation to limit the adverse consequences of ‘rising consumption worldwide’ (New Deal for Consumers, 15; see New Consumer Agenda; Circular Economy Action Plan). This shift in focus on sustainable consumption must be welcomed. And yet, the measures proposed betray a flawed understanding of why and how production and consumption processes unjustly impact the world: according to this understanding, empowered individual consumers equipped with better information are the main instrument to address the impact of consumption. My brief reflection is based on the Directive Empowering Consumers for the Green Transition (amending UCPD and CRD). The choice to amend Directives 2005/29/EC and 2011/83/EU discloses a clear rationale: to achieve change through individual responsibilisation obtained with better information. Consumers’ individual choices are seen as essential to the creation of ‘more [socially and environmentally] sustainable consumption patterns’ (para 1). Only if pre-contractually informed and not misled about a product’s environmental or social characteristics (e.g., work environment safety, fair wages), can consumers be empowered to make better purchasing choices. Individual responsibilisation is key, and consumption is still perceived as crucial to growth and not to be restrained. It is, in other words, not problematised nearly enough. Internal market rationale (Bartl 2015 and 2018; Micklitz ex multis 2019) thus remains at the centre of the sustainable consumption agenda: the extensive circulation of goods within the market is a priority the EU is unwilling to sacrifice for a more sustainable present and future. I see two obvious implications of this approach. First, the consumers making use of their rights will most likely be those who are already rather aware and responsible and who understand their consumption’s impact on the world. Thus, the strategy seems to be potentially very ineffective. Second, the reliance on individuals to remedy the structural injustices emerging from capitalism very much invites the question of whether that is just towards the people at whom responsibilisation is directed. Should individuals be burdened by moral obligations they are unable to comply with because of the structural dimension of the injustice they are being asked to remedy? This question becomes even more relevant if we consider that by not intervening with substantive controls on the object of the contract and by claiming that the proper functioning and growth of the market remains its main goal, the law maintains the centrality of commodity exchange unaltered. This is one of the reasons why I call this strategy capitalistic, but there is another one. I find that reliance on individuals’ efforts to keep capitalistic culture going is one of capitalism’s crucial characteristics (cf. Fraser 2016). In capitalism, individual effort is portrayed as crucial to achieving things, including change. This portrayal conceals the structural dimension of capitalism and, in turn, rather hampers change. Similarly, it seems to me that the focus on consumers’ actions distracts attention from a more radical (and structural) rethinking of European private law’s rules. Perhaps these rules should be based on a different rationale and should be truly aimed at achieving that “social justice” that the Union is committed to (Article 3 TEU).

IV. Two objections: “Consumers off the hook?” and “But this is only consumer law”

“Consumers off the hook?”

Structural injustice critique, as I presented it, could be mistaken for inviting the deresponsibilisation of individuals. Am I claiming that we, as consumers, should wash our hands off what our consumption does? No. Structural injustice instead roots our political responsibility to remedy it through the collective push for institutional change. In unjust, non-ideal conditions, though, I also think those who can should use their privilege and alter their habits. But this cannot be what institutions (through the law) rely on to achieve change.

“But this is only consumer law; other fields deal with some of the problems you mentioned”

It is true. The EU is tackling structurally unjust production and consumption processes diffusely (e.g., Forced Labour Proposal; Corporate Sustainability Reporting Directive). My point is that, in non-ideal conditions, demands for structural social justice also belong to consumer law. It plays too much of a crucial role in contributing to structural injustice for it to be excluded from the scope of its demands.

Art by Tomoko Nagao
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