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Incrementalism and Complexity

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.