The Capability Approach and Labour Law: Identifying the Areas of Fit

The goal of this chapter is to assess to what extent the Capability Approach (CA) can be useful for labour law theory. It begins by asking, what is the purpose of looking for a purpose for labour law? The chapter distinguishes between legal purposes (such as purposive interpretation) and non-legal purposes (for example, defending the law against economic and libertarian critiques). It argues that, for legal purposes, there must be a ‘fit’ between the proposed normative theory and existing laws. It then distinguishes between three different strands in the literature regarding what do we want people to be capable of: whatever they want (‘substantive freedom’); specific capabilities (justified by another theory); or effective ability to enjoy labour laws (that require separate justifications). The chapter argues that the first two strands can be used to justify some specific laws—notably, workplace equality, health and safety, and working time law—but certainly not the entire field. The third strand can be used as a ‘supplementary device’ to justify specific means that will make the laws effective—but does not provide the primary justification for the laws themselves.