Capabilities Approaches and Labour Law through a Relational and Restorative Regulatory Lens

This chapter examines the question of whether the law should prohibit or prevent jobs that are robotic in the nature of their performance against two normative frameworks: first, the framework of human rights and, secondly, the framework of human capabilities. These two frameworks justify controls, albeit not necessarily the same, over the sorts of jobs that are available on the labour market. The chapter finds that both frameworks recognize the value of work as an important interest and an element of human flourishing, and both frameworks impose duties as to the content of work. The duties that human rights impose include the creation of work opportunities and the prohibition of exploitation at work, rather than the creation of meaningful work. Working like a robot, or like a cog in a machine, is not necessarily incompatible with human rights. However, it appears to be incompatible with Nussbaum’s account of human capabilities. It undermines both architectonic capabilities of practical reason and affiliation, the exercise of which affects all other capabilities. Even though boring and monotonous work is incompatible with this approach, it is less clear whether there should be a state duty to prohibit it, according to the theory of human capabilities. This is because work, even if boring and monotonous, may still be conducive to human flourishing for it is good for the enjoyment of several human capabilities. This lack of clarity as to the duties imposed in this area is a weakness of the capabilities approach.

Work, Human Rights, and Human Capabilities

This chapter examines the value of work and the requirements of the content of work against two normative frameworks: first, human rights, and second, human capabilities. Its main question is whether working like a robot should be prohibited. The chapter identifies certain overlaps in the requirements imposed by the two frameworks, such as a duty to create opportunities to work and the prohibition of being forced to work. When it comes to the content of work, both frameworks prohibit workers’ exploitation, and both recognize the value of self-development in the workplace, up to a certain extent. The overlap is justified given that there are connections between human dignity and human flourishing, both values that are also linked to human rights. However, the chapter also suggests that capabilities theory, as a theory of human flourishing, requires the promotion of meaningful work for everyone. This requirement is more demanding than the duties imposed by human rights, which are primarily about identifying and addressing moral wrongs. Whether boring and monotonous jobs should be prohibited as a moral wrong, though, is not specifically addressed within capabilities theory. The lack of specificity as to the duties imposed is a weakness of the capabilities approach.

Labor Law and the Capabilities Approach

Labor law scholars often discuss the “Capability Approach” as if it were a single thing with clearly defined content. However, it is best seen as a family of approaches. This paper first clarifies what the different versions of the approach have in common: a commitment to replacing measurement of well-being by gross domestic product (GDP) per capita by a focus on a group of substantial freedoms or opportunities for choice. It then goes on to clarify some deep differences between Amartya Sen’s version of the approach and that used by Nussbaum. Nussbaum’s version is intended to supply a basis for political principles in a pluralistic society, and thus, eschews on grounds of equal respect for persons any commitment to a comprehensive doctrine of freedom or autonomy, given that in a pluralistic society citizens, religious and secular, differ about these values. It also avoids, in consequence, a commitment to maximizing freedom. Even though Sen distinguishes maximizing from optimizing and allows for plural conceptions of the good, he goes further than Nussbaum in prioritizing autonomy and reason-based conceptions. And because he does not endorse a list his maximizing exercise seems fully general; by contrast, Nussbaum’s the political goal is understood to be to secure to all citizens, by constitutional right, an ample threshold amount of (only) ten central opportunities or capabilities as a partial conception. She defends this approach, in terms of Rawlsian “political liberalism,” as more consonant with equal respect for persons. In further clarifying these ideas, the paper also discusses the role of feminist economics in developing the approach, and recommends a focus on the informal economy and the political assignment of financial value to women’s unpaid domestic work.

What Can Sen’s Capability Approach Offer to Labour Law?

In response to modern questions about traditional justifications for the need for labour law, the chapter explains that such a justification must be a theory of justice. The chapter argues that Sen’s capability approach cannot, contrary to Langille’s claims, provide such a theory of justice for three reasons: the approach endorses relatively unregulated markets, its goal-based approach cannot justify adequate institutional foundations for labour law, and it fails to recognize distributive justice as a key aim of labour law. Nevertheless, Sen’s capability approach can throw light on the justice of particular aspects of labour law such as affirmative action and the importance of flexibility, learning, and autonomy at work.

Capabilities, Contract, and Causality: The Case of Sweatshop Goods

This chapter presents a legal strategy informed by a capabilities approach to minimum contract justice that challenges the permissibility of consumer contracts for sweatshop goods. It replies to a common objection to this strategy, which posits that consumer contracts are not causally linked to exploitative labor standards and should therefore be considered valid contracts. This chapter argues that the causality objection mistakenly transposes the normative function of causality from questions of liability into the question of contractual recognition. While liability revolves around attribution of responsibility and blame, contractual recognition serves the purpose of protecting the minimum standard of justice as ensconced in the public institutions of society. Deplorable working conditions in global supply chains represent a serious justice concern and within international labor law scholarship it is common to pursue minimum labor standards or mechanisms that seek to restrict corporate conduct on the basis of voluntary commitments (e.g. codes of conduct). Instead, the argument from minimum contract justice offers an alternative legal strategy that questions the permissibility and contractual validity of exchanges the performance of which relies on exploitative production conditions.

(Re)Imagining the Trade–Labour Linkage

This chapter explores the role that international trade law can play in protecting and promoting workers’ rights. Using the capabilities approach to invert the normative foundation of the international trading system, this chapter proposes that the trade–labour linkage should be reimagined with a greater focus on human freedoms and capabilities. It will be argued that the increasingly formalist interpretation of trade rules at the multi-lateral level and in the context of free trade agreements (FTAs) has resulted in the marginalization of labour standards. A critical analysis of the recent Guatemala Labour Dispute, which is the first labour standards dispute to be brought under a FTA, is presented with a view to highlighting how the interpretation of international trade rules can result in the perpetuation of human unfreedoms. This chapter concludes by arguing that the capabilities approach offers an alternative vision for development, but the transformative potential for a just and equitable trade regime can only be realized if there is a meaningful commitment to human agency and participation.

The Constitution of Capabilities

This chapter defends a particular ‘capabilities template’ for freedom of association. It identifies two versions of the capabilities approach. The first version, developed by Sen, has inspired a ‘thin’ account of freedom of association. This thin account of freedom of association is circumspect about the legitimacy of constitutional courts developing a jurisprudence of ‘derivative rights’ and ‘correlative duties’. Its main target has been the judicial elaboration of a constitutionalized right to collective bargaining correlative to a duty to bargain. The second version, developed by Nussbaum, provides the underpinning to a social democratic account of freedom of association. This supports a positive role for constitutional courts, constitutional entrenchment, and a generous approach to ‘derivative rights’. This chapter defends this social democratic account of freedom of association. In so doing, it also suggests some important modifications to Nussbaum’s account, to allow for the direct promotion of human functionings in appropriate circumstances.

What is Labour Law? Implications of the Capability Approach

Creating real capabilities to engage in decent work is a vital social project. Labour law is best conceived of as that part of our law which seeks to remove obstacles to, and to nurture, such capabilities. Labour law’s undertaking is thus part of the larger project of human development—of advancing the cause of substantive human freedom conceived of as the real capacity to lead a life we have reason to value. On this view, the world of labour law is large (it is concerned with all who work) and its mission one which is both important and coheres with our basic values in all aspects of our lives. But labour law has, at present, another account of itself, long successful, but which is narrower and less ambitious. The legal starting point for that view is contract, and labour law’s mission is to control contract power. This is an important but narrower normative vision, which both restricts our understanding of what labour law is and limits its scope of application. Attempts to advance labour law’s self-understanding by appealing to the capability approach have been made, but met with resistance. In this chapter, this encounter is reviewed and assessed by examining the role of the capabilities approach (CA) in constituting labour law as a legal subject. In so doing, this chapter draws attention to another issue—the relationship between the normative narrative underpinning a discipline such as labour law (whatever it may be) and its expression in law.

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.

Labor History and the Clash of Capabilities

This chapter argues that the congruity between the Capabilities Approach (CA) and the American labor movement’s ambitions and tactics has shifted over time. In the early twentieth century, labor activists embraced strong forms of social and economic pressure, rejected minimalism, and disavowed state intervention. Over the course of the twentieth century, however, the American administrative state actively structured the bargaining relationship between unions and employers, and unions surrendered much of their coercive power. In the new legal landscape, it may be plausible to ground labor law in the CA, which combines an emphasis on full equality of freedom of speech and association with support for a strong social safety net. This compatibility, however, is premised on the labor movement’s relinquishment of its most effective historical weapons. That is, the same modifications that have accommodated labor law to the CA have also eroded labor’s strength and accelerated its decline.