The Right to Care in Constitutional Perspective: A Preliminary Essay toward a New Understanding

Human beings are born with a vulnerability that necessarily requires the care of others at certain stages of the life cycle. For human beings, care should not be regarded as charity or a one-sided sacrifice, but rather as an essential element of life; it is a necessary condition for living a life of dignity. The essential conditions for a dignified life can be described as the “central capabilities” emphasized by Martha Nussbaum, and these capabilities constitute the content of rights. Therefore, care must be capable of being constituted as a right. This study examines the constitutional dimension of care-related rights through the lens of the Capability Approach. Investigating the capability failures of both persons in need of care and caregivers helps to concretize the content of constitutional rights, and can serve as a starting point for discussing fundamental rights related to care that could be guaranteed under the Constitution. To this end, the study first explores the basic concepts of the Capability Approach and its significance within constitutional discourse, and discusses how this framework can be used to derive unenumerated rights. It then attempts to constitutionally justify the rights of caregivers and care recipients from the perspective of the Capability Approach. Finally, it considers key issues that must be taken into account in relation to specific policy measures.