The Capability Approach: A Suitable Theoretical Framework to Improve Legal Protection of Domestic Workers in China

Abstract

Applying the capability approach to analyse the deficiencies in the legal protection for workers in China is in a preliminary stage. Existing research largely uses the fact of whether workers can obtain labour protection as a standard to distinguish whether a worker has adequate legal protection. Although having legal rights is a prerequisite for workers to obtain adequate legal protection, focusing solely on the entitlement of legal rights ignores the enjoyment of legal rights and the diversity of personal preferences. In particular, even if they are given labour protection, domestic workers may be unable to enjoy these legal rights due to the special characteristic of domestic work. The capability approach emphasises not only the entitlement of legal rights but also, more importantly, the enjoyment of those rights. The analysis of legal protection for domestic workers, underpinned by the capability approach, thus reveals not only the inadequate legal rights for domestic workers but also factors that hinder their enjoyment of legal rights. Similarly, developing legal protection for domestic workers based on their capability not only ensures adequate legal rights for them but also contributes to the development of enforceable legal rights. This article argues that the capability approach is a suitable theoretical framework to analyse the inadequate legal protection of workers, particularly that of domestic workers in China. In addition, it analyses the connection between defective legislation and inadequate capabilities of domestic workers regarding obtaining adequate income and rest.