Feminist Antitrust – Kluwer Competition Law Blog
In 2021, an insightful interviewer asked Margrethe Vestager,
In a recent paper
Feminist social science approaches
By drawing on feminist legal theory
I argue that by adopting a feminism-grounded analytical lens competition law could not only be more gender inclusive but also make an opening to other types of inclusion.
The power of feminist social science approaches lies in their objective to uncover the hidden, silenced and invisible experiences women and marginalized communities
Despite increasing attention from academics
Remarkably, a similar blind spot exists in the diverse strands of feminist social science research, notably feminist legal and economic scholarship that has already been applied to various legal fields including constitutional law, international law, family, contract and labour law, but has engaged less thoroughly with the legal frameworks structuring market processes. Therefore, competition law has been a blind spot in these investigations so far.
By going beyond gender equality issues
Feminism is an interdisciplinary approach that analyses issues of equality and equity based on gender, and gender identity, as understood through social theories and political activism. Feminism is a multi-faceted project
Far from being a ‘unitary project’, the feminist research method is distinctive
The complexity of the economy
Importantly, feminists take a contextualized lens and draw attention to the complexity of the economy
Feminist approaches go beyond adding gender to the analysis and investigate the deeper layers of legal rules, economic models and enforcement practices that entrench gendered power structures, dynamics, and institutional arrangements and (re)produce various forms of inequalities. By investigating markets’ embeddedness in social relations
Feminists’ analytical lens is, in fact, intimately related to the analytical lens of competition law. The focus of their analysis concerns power structures and dynamics, and they investigate how various social and economic actors are impacted by these power inequalities and strive to control excessive power and change existing social, economic, and political structures. However, the site and scope of their analysis differ. Competition law is concerned with market processes, economic structures, and activities and with economic power and its consequences on the competitive process. Feminists, however, repeatedly and forcefully called attention to those activities, processes and arrangements that lie outside of the market and the economy
As women’s experiences (often fundamentally) vary, and their social positions are shaped by multiple forms of injustice at the intersection
Feminist competition law
These perspectives provide an opportunity to broaden the legal and economic inquiry currently applied in competition law, and to rethink its role in markets and society and its relationship with the state and society. Feminist social science is one way to re-imagine how competition law and policy could become more inclusive in its analysis, and enforcement and ultimately, contribute to inclusive and sustainable growth in societies.
Feminist approaches help to unpack the wide diversity of roles and functionalities that markets and the process of competition may have in human society. By critiquing a universal concept of the market, and regulation of competition, they reveal the existence of multiple forms of “market competition” and, that (competition) law does not lie in a particular ‘sovereignty’ but in pluralism
By taking a contextualised lens and by drawing attention to the complexity of the economy, economic activities and the embeddedness of markets in broader social, economic and political contexts, feminism provides a novel methodology to reassess allegedly “neutral” and objective competition rules, economic models and enforcement practices. Through its multidimensional and pluralist analytical lens, with a strong focus on human diversity and agency, feminists challenged mainstream economic accounts of markets and market actors and emphasised the importance of social norms in affecting both the process and the outcome of economic processes. In contrast to neoclassical economists, feminist economists have underlined the embeddedness of markets
From such feminist perspectives, market competition and the logic of the ideal market economy system, are assumptions based on economic rationality as gender-neutral, preferences as given and stable, and not as cultural constructions, and the trust in markets to solve gender inequalities.
By criticising these standard behavioural assumptions in mainstream economics, they reject the assumption that economic agency is fully driven by the rational economic man
Feminists’ critique of the gender-biased assumptions of neoclassical economic theory and its central principle of efficiency, which also permeate the consumer welfare standard, resulted in condemning many neoliberal policies, for example in the course of EU integration
In the analytical framework of competition law and policy, gender can play a role at various stages of the competition law analysis and enforcement, as well as in institutional matters such as the composition of competition authorities. Its most direct implementation can take place through investigating the identity of consumers and what relevance the preferences, choices and behaviour of consumers fulfil in competition law. The consumer has different, but important functions at various phases of the competition law assessment and enforcement. Starting with market definition when consumer preferences play a key role in establishing demand substitutability and in defining relevant markets and analysing competitive effects, market investigations where gender or other factors affect prices and consumer purchasing decisions, implications for investigating market power and effects of competition, distortions, and lastly, priority setting and case selection.
In my paper, I set out how the consumer welfare standard as the first and most common notion that includes the consumer could be revisited and explain how new measurements of welfare and well-being explicitly implement gender as an indicator. By relying on the idea of human diversity, I explore how competition is likely to impact distinct individuals, who have multiple overlapping social, economic and political roles and identities, for example concerning mergers in health care or in the food sector. Finally, I suggest pathways to implement a gender lens in enforcement practices, such as case selection and (third party) participation in decision-making processes.
Feminist social practices within the competition law community
Feminism is, however, not just an academic endeavour, but also a social movement aimed at interrogating and changing the economic, civil, and ideological disparities between men, women, and those who identify outside of the gender binary.
As such, it also interrogates our own social practices within the competition law community. These social practices define the structure and nature of our community and have relevant implications for the body of knowledge, which is being produced. These social practices are today, still, profoundly gender-biased, producing knowledge largely from the male perspective and dominated by discourses and understandings of competition regulation as developed in the Global North over the course of the past century.
While feminism provides pathways for exploring diverse understandings of the social, economic, and political realities, that surround competition laws and their enforcement, and helps to generate new questions, theories, methods, and findings, a change in our social practices is needed to empower female competition practitioners, and scholars to regard themselves as authoritative constructors of knowledge. Such an approach makes women’s (and other marginalized groups’) actions, achievements, and concerns visible and validates the voices and experiences of all the members of the competition law community.
Empowering women means adding new voices and perspectives while enriching the field of competition law, policy, and scholarship. This requires a reflection on our own social practices in ways that contribute to women acquiring epistemic authority in competition law and policy. Such changes must start early and address social practices during the first encounters with the field, probably in higher education and continue along whichever career path one chooses in this community. It is a challenge that we need to take and address together in every corner of this community. The corner closest to my current position is the academic environment where we educate the next generations and form together an academic community producing a significant part of competition law scholarship. For those of us in this environment, the reflection should start with the learning and teaching environment we create for our student communities, and with the academic activities we participate in, or organize as well as what we read and write. We must reflect on the diversity and inclusiveness of all these activities, including our curriculum, courses, learning activities, lecturer teams and importantly the references and citations we use and the compulsory reading materials we prescribe. We must ask ourselves who are the role models (academics, enforcers, policymakers, practitioners) we show and introduce to our students. If these elements of our higher education and academic life lack inclusion and diversity, then we cannot expect our graduates to adopt other social practices later on in their professional careers. That the situation is alarming, should not come as a surprise.
For example, in the country I live and work in, in the Netherlands, another shocking report was published at the end of 2023, on how a decrease is taking place in the growth of the share of female professors
The “feminist imaginary” of competition law and its community
Competition law is one of the key legal areas that influence the construction and structuring of markets, by shaping power relationships between market actors and ensuring an economic order that contributes to the benefit of all societal groups. It also influences who has access and under what conditions to goods and services, and who can participate in markets. The “feminist imaginary” of competition law and its broader community may at the moment be an uneasy thought and pathway, but fortunately and thanks to many who have acted, written and spoken before me in this field, we have already departed on this path and there is no turning back.