Academic journal article New Zealand Journal of Employment Relations (Online)

The 'Capability' Concept and the Evolution of European Social Policy

Academic journal article New Zealand Journal of Employment Relations (Online)

The 'Capability' Concept and the Evolution of European Social Policy

Article excerpt

Abstract

Amartya Sen's capability approach has the potential to counter neoliberal critiques of social welfare systems by overcoming the false opposition between security and flexibility. In particular, it can be used to promote the idea of social rights as the foundation of active participation by individuals in the labour market. This idea is starting to be reflected in the case law of the European Court of Justice concerning free movement of persons but its use in the European employment strategy is so far more limited, thanks to the continuing influence of neoliberal 'activation policies'.

Introduction

The concept of 'capability', developed by Amartya Sen in a series of economic and philosophical texts (see 1985, 1999), could play a major role in the reshaping of the European Union's social and employment policies. The prominence of the capability concept in contemporary European debates owes much to the use made of it in the report on the Transformation of Work and the Future of Labour Law in Europe which was prepared for the European Commission by a group led by Alain Supiot (1999). The Supiot Report argued that a capability-based approach would help to overcome the opposition between 'security' and 'flexibility' which had been established in neoliberal critiques of labour law and the welfare state, and provide a basis for 'real freedom of choice' in relation to labour market participation. This analysis was further developed in a paper published in Droit Social by the economist Robert Salais (1999), one of the members of the Supiot group. A research programme was subsequently initiated, designed among other things to explore the potential role of a new 'politics of capabilities' within the wider project of European integration (see: http://www.idhe.enscachan.fr/Eurocap/index.html.).

The present paper aims to contribute to that programme of research by exploring some of the legal aspects of the capability concept. There is no precise juridical equivalent to Sen's notion of 'capability'. However, certain legal concepts undoubtedly bear a certain resemblance to it. This is particularly true of notions of contractual capacity which are recognized in both common law and civilian systems of private law. The task of exploring the links between 'capability' and legal 'capacity' has begun. My aim here is to focus on a different strand of legal thought, namely the set of ideas associated with the duty to work in labour and social security law. The content of the duty to work has shifted over time according to different notions of the capacity or ability of individuals to make themselves available for employment. These in turn have been shaped by particular conceptions of the employment relationship and of the family. To see how this process has occurred is to gain some insight into how the capability concept might operate if, as its proponents intend, it comes to serve as a new conceptual cornerstone for social law.

To this end, the next section explores Sen's definition of 'capability' and the use made of the notion in the Supiot report. The paper then looks at the historical development of legal analogues of capability in the English poor law and law of social insurance. The paper then returns the debate to a European level by considering some ways in which the capability concept is being (or could be) operationalised within the current employment and social policy of the EU.

Sen's notion of capability and its adaptation in the Supiot report

Sen's account of capabilities describes individual well being in terms of a person's ability to achieve a given set of functionings. In this context,

...the 'concept of "functionings"... reflects the various things a person may value doing or being. The valued functionings may vary from elementary ones, such as being adequately nourished and being free from avoidable disease, to very complex activities or personal states, such as being able to take part in the life of the community and having self-respect. …

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