Pascal McDougall (Harvard University, Law School) has posted Capabilities, Utility, or Primary Goods? On Finding a Conceptual Framework for (International) Labour Law (in Brian Langille, ed., The Capabilities Approach to Labour Law 180-201 (Oxford: Oxford University Press, 2019)) on SSRN. Here is the abstract:
This chapter argues, against both advocates and critics of the capabilities approach (CA), that applying the CA to labour law makes little substantive difference, because it does not provide answers to first-order questions that were not already available. The chapter surveys the main alternatives to the CA: (1) utility/welfare, (2) Rawlsian primary goods, (3) Ronald Dworkin’s “resources,” and (4) GA Cohen’s “access to advantage.” It claims that all these conceptual frameworks can accommodate roughly the same array of positions as to how to maximize and/or equalize the things that make a life good. The chapter then introduces my proposed first-order approach to the regulation of employment. That approach, left legal realism, essentially asserts that labour laws on collective bargaining and employment standards are not deviations from competition, freedom of contract, and private property, but are mere reconfigurations of those abstract ideas from one possible instantiation to another. Relying on this “bundle of rights” approach to property and contract, the chapter then provide the briefest of sketches of a set of normative ideals, which revolve around “altruism” and redistribution along class, gender, and racial lines.
Highly recommended.