As discussed in the previous subsections, Hayek’s and Sen’s theories can provide different perspectives on the consumer law discourse. This section argues that another dimension is added by theories on human rights.
A consideration of human rights is present in the works of both Hayek and Sen. While the topic is rather marginal in the theory of the former, described in section 3.1, human rights play an important role in Sen’s framework. Sen identifies a link between these rights and positive freedoms, arguing that human rights, seen as articulation of ‘social ethics’ or ‘ethical demands’, are entitlements to substantive freedoms. Sen stresses that these rights are not confined to ‘coercive legal rules’ and ‘judicial enforcement’ (which are still important to make human rights effective), but they can also be expressed and
promoted in alternative ways, such as through social monitoring and support by NGOs.
Furthermore, Sen is a strong proponent of including economic and social rights among human rights, even if these are not practically enforceable in a given economic and political situation. To explain this position, which contrasts with the approach of some human rights scholars (e.g. Cranston) discussed in Chapter 3, Sen argues that the potential difficulty of implementing a right does not eliminate the utility of declaring such a right. On the contrary, the formal recognition of these rights contributes to their feasibility and realization in the future. After all, Sen argues, civil and political rights may also be difficult to realize in practice, but this does not mean they should not be acknowledged as human rights. Sen’s arguments thus provide a justification to integrate and recognize the value of economic and social rights, and may serve as a lens to interpret existing fundamental rights. For example, the express provision in the Charter to protect consumers as a ‘solidarity’ objective may receive a new raison d,etre: although drafted as a policy goal and not as a subjective right, this provision may be regarded as an intermediate step towards a social-focused consumer law and policy model.
A different view is expressed by Joseph Raz. This legal philosopher distinguishes between moral and human rights, arguing that human rights are such only when an authority declares and actively protects them. It then follows that human rights which lack an explicit promotion and enforceability do not fully qualify as human rights. Raz laments a proliferation of rights which are erroneously called ‘human’, while being (only) ‘moral’, for lack of implementation by impartial and effective institutions.
These conclusions contrast with Sen, who instead sees a value in declaring human rights even just as a matter of principle, in order to promote their future realization. Another point of disagreement between Sen and Raz stems from the fact that, for Raz, certain human rights (e.g. the right to privacy) cannot be regarded as freedoms, while for Sen, human rights are inextricably connected, and even to a certain extent emanate from the right to substantive freedoms.
Despite these differences, Raz’s emphasis on the importance of active realization of human rights brings him close to Sen’s idea of empowerment. Raz argues that human rights play an important role not only as they bring to the fore the issue of human life; but, just as importantly, because, in a globalized world, they empower individuals in the face of powerful governments, international organizations, and large corporations. Raz is acutely aware of the international dimension of human rights; perhaps as a reflection of this, he stresses that human rights are not absolute (in the sense of abstractly identical across states), but need to be adapted to different cultural contexts, and be balanced with other objectives.
Yet another perspective on human rights is that of Sandra Fredman, who argues that human rights are not limited to individual freedom and opportunities, but also embed wider societal objectives such as care, dignity, and the promotion of responsible behaviour. As we have seen, the idea that human rights may include obligations (e.g. to promote responsible actions) is also present in Sen’s agency concept, and it neatly dovetails with recent trends in modern consumption, while of course addressing the ever-pressing issue of sustainable consumption. In conclusion, from a theoretical point of view, there seems to be disagreement on whether economic and social rights, relevant in a consumer law context, can be fully seen as human rights. However, because social considerations are becoming increasingly relevant in consumer policy and law, it seems likely that human rights and consumer law will become progressively more intertwined.
In practice, the entry of human rights in the field of consumer law will provide a strong defence or tool of empowerment of the ‘weak party’, in particular in an international context. Moreover, the trend of framing consumer protection as a matter of fundamental rights could be regarded as an ethical or moral complement to the market integration focus in the EU. However, the issue of enforcement and actual implementation of these rights may remain an open question and could, in the extreme, undermine the credibility of a legal system. In turn, a discourse on the enforcement and realization of human and consumer rights leads to the topic of procedures, which are discussed in the next section.
-  As seen previously, Hayek rejects the recognition of economic and social rights as human rights.
-  A. Sen, ‘Human Rights and the Limits of Law’, (2006) 27(6) Cardozo L. Rev., p. 2916.
-  A. Sen, ‘Human Rights and Capabilities’, (2005) 6(2) J. Human Development, p. 152.
-  Sen, ‘Human Rights and the Limits of Law’ (n 70), pp. 2916-19; A. Sen, ‘Elements of a Theoryof Human Rights’, (2004) 32(4) Phil. & Pub. Affairs, pp. 319-28: see also Sen, Idea of Justice(n 54), p. 364.
-  Sen, ‘Human Rights and the Limits of Law’ (n 70) p. 2924.
-  Cranston contests the usefulness of economic social rights in poor countries which do nothave sufficient financial means to guarantee them. See M. Cranston, Are There Any Human Rights?(1983) 1 12 Daedalus, p. 1; see also the broader academic debate on social human rights and international consumer rights described in the previous chapter.
-  Sen, ‘Human Rights and the Limits of Law’ (n 70), p. 2924.
-  J. Raz, ‘Human Rights in the Emerging World Order’, (2010) Transnational Legal Theory, pp.31-47. J. Raz, ‘Human Rights Without Foundation’, in S. Besson & J. Tasioulas (eds), The Philosophyof International Law (Oxford: OUP, 2010), pp. 321 et seq.
-  Raz, ‘Human Rights in the Emerging World Order’ (n 76), pp. 31-47.
-  Raz, (n 76), pp. 31-47.
-  S. Fredman, Human Rights Transformed: Positive Duties and Positive Rights (Oxford: OUP, 2008), pp. 15-16.