The problem of incrementalism emerges from the common practice of limiting certain rights only to groups on certified lists.' Section I reviews this problem of the list, and how the failure of lists to include gay men and lesbians profoundly impacts their daily lives. Possible strategic responses to this problem (such as doing nothing, interpreting the current list to include us, eliminating the list altogether, or expanding the list to include us explicitly) are considered in Section II, concluding by focusing on a special kind of gradualism, list incrementalism. List incrementalism occurs when a right is extended to new groups by merely adding them to the relevant list. Presumably, the longer and more detailed the list, fewer groups would be experiencing systematic discrimination on that particular issue. The addition of a new group is often justified in terms of taking a step toward realizing the ultimate goal of protections for all, thereby raising the issue of "human rights."
Subsequent sections scrutinize list incrementalism from three different perspectives: the formal, the practical, and the philosophical. The formal analysis (Section III) considers whether, given the inherent imprecision of language, the quest for legal exactitude may not make matters worse. I contend that the addition of details by creating new lists and expanding existing lists, although done with the intent to clarify the law, instead introduces uncertainty.
The practical analysis in Section IV balances the actual costs of implementing an incrementalist strategy against the benefits the strategy is expected to yield. In contexts where incrementalism seems most reasonable, the costs are demonstrably very high and the benefits few, so that society is worse off in the long run. Section IV discusses the prototypical example of the list of inclusion: the list of groups against whom employment discrimination should be expressly prohibited.
The two analyses address the first question regarding the prima facie validity or desirability of the incrementalist strategy. As usually presented, the choice between incrementalism and radical wholesale strategies can be influenced by many factors-political, economic, even psychological-but the options do not differ on their underlying concept of human rights, the purported end goal. This assumption is probably wrong. The philosophical analysis in Section V critiques the assumption that incrementalist and wholesale strategies are merely different paths directed toward the same objective of universal human rights.
These three analyses illustrate that the assumption that rights incrementalism is intellectually unproblematic and a reasonable alternative strategy is false. All things considered, incrementalism is extraordinarily difficult to justify as a deliberate strategy to effect rights reform. Perhaps it should not be justified at all. Section VI parries the objection that the rejection of incrementalism as a credible strategy will lead to destructive dogmatism in the political arena.
|Original language||American English|
|Journal||California Western Law Review|
|State||Published - Oct 1 2001|