Did we make a difference?

The Foundation for Law, Justice and Society (FLJS) is an independent not-for-profit institution that aims to promote an understanding of the role of law in society. We identify and analyse issues of contemporary interest and importance, disseminating the insights of decision-makers and experts to a global audience through our extensive online resource of free-to-download Policy Briefings, Opinion Pieces, and multimedia podcasts.

We want to keep our content free at the point of use to all. If you value our work and are able to support it, please make a contribution to enable us to fulfil our educational aims into the future.

 

 

Incrementalism and Complexity

Author: 
Jeff King
Publication date: 
Wed, 15 Jul 2009

Courts are very often required to adjudicate complex social policy disputes, and there is no sign of the tide turning back. Such disputes arise under European Community law, in the private law of tort and contract, in constitutional law questions, and whenever policymakers must decide upon the content of an important new statute or even a bill of rights. 

 
When contemplating the issue, the question for judges and policymakers alike is: ‘should a judge adjudicate this dispute at all, and if so, how?’ 
 
In this policy brief, I argue that judges can adjudicate complex issues, but that they should take an incrementalist approach. Such an approach means that, when faced with substantial uncertainty, judges should take relatively small steps, acting in awareness of their own limited knowledge and the potential need for future adaptation. 
 
This more open attitude means that judges can offer some of the benefits of legal accountability while overcoming their lack of expertise, time, and democratic legitimacy for dealing with complicated social problems.