Is the Capability Theory an Adequate Normative Theory for Labour Law?

Abstract

Abstract The chapter argues how the capability approach, taken essentially as a normative theory, can contribute towards providing a new and updated foundation for labour law. The conditions on the basis of which a political theory may be relevant to labour law are first discussed, while acknowledging that a unique theory cannot provide a justification for all labour law but, rather, for specific laws. As regards the discipline’s classical core, which is aimed at compensating the inequality of power inherent to the employment relationship, that is, at reducing (although never eliminating) the level of the employer’s domination over the employee in Pettit’s perspective, it is argued that these norms can also be interpreted in terms of the capability theory, provided that the latter goes beyond its methodological individualism and deals with the dimension of power inside social relationships. However, the theoretical gains provided by this interpretation do not seem decisive. Instead, it is argued that the latest generation of labour laws has proposed new regulatory perspectives that can be seen as aimed at promoting the workers’ capabilities. Several examples are made with regard to European labour law, which are characterized by a new philosophy of protection that goes beyond a merely paternalistic approach and aims at enhancing the worker’s autonomy and responsibility. In conclusion, the chapter suggests that the capability view could give a remarkable contribution to the renewal of the fundamentally social-democratic background of labour law in a perspective of advanced social liberalism.