Shortly before his death in 2010, historian Tony Judt published the book "Ill Fares the Land," in which he argued that people have lost their ability to speak in moral terms. The economic narrative is omnipresent, Judt argued, and increasingly dominates discourse about human rights and public good.

In a New York Review of Books article about his book, Judt observed:

We know what things cost but have no idea what they are worth. We no longer ask of a judicial ruling or a legislative act: Is it good? Is it fair? Is it just? Is it right? Will it help bring about a better society or a better world? Those used to be the political questions, even if they invited no easy answers. We must learn once again to pose them.

Evidence for Judt's thesis is easy to find. Last week the European Commission announced that it expects large corporations to have 40% women on their boards. This was a watered-down version of the initial proposal by EU Commissioner Viviane Reding, who initially proposed a legally enforceable quota. Notably, Reding enthusiastically referred to research by McKinsey, the Boston Consulting Group and Credit Suisse, who all argue that more women on corporate boards is beneficial for companies and the economy as a whole. This reasoning clearly undermines the normative value of her argument. What if other studies qualify or reject these results? What is left of Reding’s argumentation if a study finds that there is a negative net-effect on company performance? Will she propose a 100% men's quota? And if more women would indeed benefit corporations, why didn't they do something about it? In making the economic argument as her primary case, rather than an argument based on fairness, justice, or equality, she ignores – or worse, denies – the inherent worth of a measure aimed at promotion of those social values.

Also last month, the Economist published a 'special report' on inequality. There are a lot of good moral reasons why we should indeed worry about inequality – especially where the values of justice and fairness are concerned. Further, empirical research has shown a strong correlation between inequality and human rights abuses. A 2009 study found that: “Income inequality and land inequality have negative and significant effects on human rights protection. Of the two, income inequality has a stronger correlation.” The Economist, however, provides the following reason for devoting 20 pages to the issue: “Inequality has reached a stage where it can be inefficient and bad for growth.” In the face of strong and abundant public good and human rights cases against inequality, the neoliberal economic argument triumphs again.

By avoiding clashes between social values and economic arguments, the independent value of human rights is obfuscated. Stripping reasoning of its connection to ethics erodes our ability to provide moral justifications for social policy and human rights, and denies the power of an inherent authenticity that reaches beyond economics. In my next post, I will discuss the role of legal methodology in this regard, as also academic legal scholarship increasingly relies on non-normative sciences and perspectives.