ABSTRACT
The conference at which these papers were first presented challenged its participants to consider how the private law should react to the reduced role the Welfare State is likely to play in the future in protecting the vulnerable and promoting social justice. Most contributors were seeking ways to relate market principles to the end of social justice. Some directly embraced the market and sought to use market exchanges as a way of ‘socialising the economy’ (Reifner, 1998) by sending signals which favoured the just use of resources or placed faith in privatised solidarity through the insurance mechanism. Others had faith that the inherent dynamics of the private law could produce just results (Teubner, 1998). The organiser found solitude in a few instances of liability laws at least providing mechanisms for important social issues to be debated (Wilhelmsson, 1998). Much of the debates would have confirmed an impression of a society in crisis and a post-modern vision of law as reflecting pluralist and frequently contradictory values. Of course, as that reflects the organiser’s viewpoint (see, inter alia, Wilhelmsson, 1992 and 1995), the result was no doubt considered a success. It will become obvious that I can only produce a similar patchwork of solutions in my assigned area of consumer credit. This gives further credence to the postmodernist thesis, but leaves me profoundly depressed. I desperately hope that a more rational basis for legal, economic and social policy can be developed. In the United Kingdom the recent change of Government has permitted one to start to have a rational debate about the respective roles of the market and regulation. However, one can only go so far, before 438reaching the limit of what the law can achieve by itself. One is still faced with the reluctance of governments to confront the need for income transfers through the tax and social security system. They believe this will not be acceptable to the middle classes, the affluent and corporations. In order to promote social justice without these wealth transfers one is forced to suggest private law solutions which one would not defend as rationale if tax and social security systems could perform their proper functions. Thus when the organisers asked me to produce ‘Utopian solutions’ it must be understood that these represent a second-best utopia in which it is conceded that radical changes to the tax and social security system cannot be contemplated.
