GoJIL Vol. 15, No. 1 (2025)
Capabilitarian Social Justice in EU: Care, Dependency, and the Conception of the Person
Elisabeth Schöyen
Abstract
While the European Union (EU) is nominally committed to the promotion of social justice by virtue of Article 3 of the Treaty on the Functioning of the EU (TFEU), the substantive meaning of this objective remains an open question. By first presenting an ideal of social justice for the EU, and then comparing it to the acquis, this paper hopes to make a small contribution to a (necessarily larger) debate about the substantive content of the social justice objective and about the place of political philosophy within legal scholarship more broadly. To do so, Martha Nussbaum’s capabilities approach (CA) is used as a starting point. Nussbaum proposes a list of ten central human capabilities, all of which must be ensured (at least) at a threshold level in order for a given polity to be considered minimally just. Rather than considering the individual capabilities, the analysis focuses on the conception of the person underlying Nussbaum’s CA, contrasting it with the conception which emerges from the analysis of the legal subject in EU law. It argues that the latter is not only unrealistic but unjust. Focusing on the construction of the disabled legal subject, as well as its intersections with the statuses of ‘worker’ and ‘migrant’, the paper contrasts EU law and policy with Nussbaum’s normative ideal. It finds that the conception of the person underlying the construction of the EU legal subject is insufficiently receptive to care and vulnerability as constitutively human traits, and moreover struggles to conceive of personhood outside of a productivity framework.
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