Capability Theory and Labour Law

Del Punta, Riccardo (2014). 'Capability Theory and Labour Law' Paper presented at the annual conference of the HDCA, 2-5 September 2014, Athens, Greece.

The paper intends to examine, from a labour lawyer's viewpoint, how and up to what extent the Capability Approach can furnish a fresher and more fruitful foundation for Labour Law, which is going through a profound crisis of identity. That does not mean, in my opinion, that Capability Theory requires a complete revision of Labour Law, and hence an abandoning of its protective mission on behalf of the workers, but merely offers a new and more modern way of conceiving and directing it. 

Within the framework offered by the Capability Theory several institutes of Labour Law could be revisited and finalised not to a mere protection of the employee as affected by a disparity of power with the employer, but to the development of employer's capabilities inside and outside the employment relationship.

In particular, it is widely recognised (see e.g. the EU call for 'flexicurity') that a updated concept of protection must include the development of the worker's capacity in the labour market, so as to make easier the transition from a job to another. All this area, which is crucial in order to find efficacious remedies against unemployment, could greatly benefit from the recourse to the Capability Approach.

In a more general and theoretical perspective, Capability Theory could allow Labour Law to become reconciled with the socially-oriented strand of liberal thought (event though this point should be seen much more in depth) without abandoning the egalitarian tradition which has long been Labour law's natural environment, but merely specifiying and refocusing the latter on the parameter of individual capabilities. The result could be a productive regeneration of a discipline which is so crucial for the future of labour in advanced economies and which is currently captured in a deep crisis whose outcome is not predictable, as it also could be a complete surrender to a neoliberal evolution.

Therefore Capability Theory could give an important contribution in order to give Labour Law studies a new vitality.

Of course all these connections would be explored in more analytical terms through the paper which has been briefly presented here.

This analysis could also contribute to a better clarification of the role of work inside the Capability Theory, which requires, in my opinion, some further exploration. .





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