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

The Capability Approach and the Legal Regulation of Employment: A Comment on Deakin

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

The Capability Approach and the Legal Regulation of Employment: A Comment on Deakin

Article excerpt

Introduction

Sen's capability concept has become increasingly influential and has been applied in a variety of contexts that have extended its utilisation well beyond the original formulation in the context of economic development. It is clearly a versatile concept, capable of a variety of interpretations and applications. As the papers in this special issue illustrate, one area where the capability approach provides a valuable analytical tool is the analysis of human capability in the workplace, a topic which itself is multi-faceted. Within developed economies, the workplace and employment are central, either directly or indirectly, to the economic security of the great bulk of the population who are completely or substantially dependent on the return from their own labour. It might be expected that, given its underlying premises, the capability concept would have much to offer to the analysis of labour relations generally as well as to its separate components, in this case the law.

The paper contributed by Simon Deakin illustrates the capability concept's potential for providing a theoretical foundation for rethinking much of our approach, not only to employment law but also the various systems of law that provide economic and legal security for workers generally. The paper focuses on issues surrounding the "duty to work" in labour and social security law. The idea of a duty to work is, of course, one that has a long history and the legal enforcement of that duty has varied over time. In the main, the duty to work has always had a strongly punitive element although modern systems of social welfare have ameliorated that aspect to some degree. Deakin' s paper, taking into account a number of academic developments in Europe, and particularly the work derived from Supiot, discusses the idea that the foundation of an individual's active participation in the labour market must be found in clear social rights. While Deakin's paper was written in 2005, the ideas in it have a particular contemporary resonance, given the current economic recession and the resulting unemployment. It is in periods such as this that the structures of the social welfare systems providing economic security to workers come more clearly into the political spotlight and the embedded assumptions, such as a duty to work, come under greater scrutiny. The ideas covered in Deakin's paper and the work from which it is derived make an important contribution to the debate on social security and welfare systems and their interface with the labour market.

The law and capability

Legal rules, as Deakin points out, are an important institutional characteristic of society and can act either to promote or constrain capabilities. Although Sen has not sought to develop a juridical theory which might give some institutional shape to the capability concept, others have begun to formulate such a theory. In his article, Deakin refers to the work of Supiot with whom he has collaborated (Deakin, 2005, p.1). Supiot's work has been particularly influential in Europe and has provided the foundation for a major research programme within the European Union (see Supiot, 2001 and the references in Deakin). Deakin refers to the visionary intentions of the proponents of the capability concept; the intention that the capability approach should come to serve as a new conceptual cornerstone for social law (Deakin, 2005, p. 16). Whether or not such a radical vision can be realised remains to be seen. Even if the debate on the capability concept only has the effect of providing a new lens through which employment law can be viewed, it may still make a major contribution to the theoretical debate on the structure and breadth of labour law and to the direction of and motivation for legal reform. As is suggested in Deakin' s paper, a credible theory that presents an alternative to the new-right's neo-liberal orthodoxy is a welcome development. This paper and the work it refers to begin that task for labour law. …

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