"Free speech" or "cheap talk"? A law and economics approach to human rights

Abstract

The main issue addressed by this thesis concerns the methodological value of economic analysis for human rights research. It inquires if law and economics can be a useful analytical tool to better understand cases that involve value conflicts, and which impose selective measures. Because human rights research adopts a deontological approach as its philosophical background, this work tries to reconcile this trend with elements of a consequentialist approach present in the economic reasoning. In the last chapter, the general methodological analysis is placed in the context of the case law of the European Court of Human Rights on the right to freedom of expression. The economic theory can explain differences in the protection of certain kinds of speech and certain categories of persons by focusing on speech’s external effects. The conclusions reached through the application of economic tools, on how far should the European supervision go, are confronted the options followed by the Court. The analysis shows that the economic theory applied to this right has an explanatory role of many of the decisions of the Court that often reaches similar conclusions by following a different reasoning. However, regarding many of the problems raised by free speech, the Court still has a hesitant case law. Economic analysis can serve an important normative purpose by suggesting the way in which the exceptions laid in Article 10 should be interpreted