Möslein, Florian --- "Behavioural analysis and socio-legal research: is everything architecture?" [2018] ELECD 1301; in Micklitz, Hans-W.; Sibony, Anne-Lise; Esposito, Fabrizio (eds), "Research Methods in Consumer Law" (Edward Elgar Publishing, 2018) 441

Book Title: Research Methods in Consumer Law

Editor(s): Micklitz, Hans-W.; Sibony, Anne-Lise; Esposito, Fabrizio

Publisher: Edward Elgar Publishing

ISBN: 9781785366604

Section: Chapter 13

Section Title: Behavioural analysis and socio-legal research: is everything architecture?

Author(s): Möslein, Florian

Number of pages: 36

Abstract/Description:

References to the ‘architecture’ of European Consumer Law entail the risk of whitewashing potential differences in the conceptual, methodological and normative underpinnings of this field of law. Behavioural analysis has gained remarkable attraction with policy-makers, but it also has also largely replaced socio-legal research which used to accompany the making of European Consumer Law during the first 25 years or so of its existence. These more traditional approaches of social sciences have developed models of behaviour which need to be reconciled with the analytical concepts of behavioral economics. However, the conceptual differences – or similarities – between socio-legal research and behavioural analysis are rarely discussed. After explaining the fundamental importance of models of human behaviour for consumer law, this chapter argues that these two approaches start from fundamentally opposite assumptions: while behavioural analysis is based on the functional rationality of the Homo oeconomicus with its focus on individual choice, socio-legal research roots are in the value rationality of the Homo sociologicus which instead draws attention to social embeddedness. Even if the starting points are different, the question remains whether both models are about to converge or whether their divergences prevail. Owing to the fundamental importance of those two behavioural models, the answer shapes the essential pillars of European Consumer Law’s architecture. It determines nothing less than the architectural style, more precisely whether that style contributes to a coherent, harmonious ensemble, or whether it looks bitty and scrappy.