…is from page 14 of the 3rd edition of Bruno Leoni’s 1961 book Freedom and the Law:
Subsituting legislation for the spontaneous application of nonlegislated rules of behavior is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. This preliminary assesment is unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. My humble suggestion is that their implication that a law (even a bad law) is better than nothing should be much more suppored by evidence than it is.
JMM: Note that Leoni’s comment is not the same as doing a cost-benefit analysis, a requirement of current legislation in the United States. It’s an even higher bar to clear than that: legislation is, essentially, the only way to accomplish something, not that it is merely a way to accomplish something.
The application of legislation, because it requires coercion and, therefore, forces all members of the group to abide by it, should be used as sparingly as possible. Negative thou shalt not legislation (eg, thou shalt not murder) is preferable to positive thou shall legislation (eg, thou shall give preference in manufacturing to Americans or pay a fine). Negative legislation has the advantage of being less oppressive; so long as you do not break the rule, you are free to do as you wish. Additionally, it has the advantage of being general. For example, the rules of justice are negative: thou shalt not harm another person. These rules are followed in a million different ways: staying in bed, reading a book, holding a door open, being a recluse, driving defensively (and aggressively), etc. They do not constrain behavior to a significant degree.
The bar for legislation should be set high, indeed very high, given its potential for abuse. Negative legislation, as opposed to positive, should be preferred.