Restraining the Hand of Law: A Conceptual Framework to Shrink the Size of Law

Abstract

There is a fierce ideological struggle between two warring camps: those who rally against expansive government and those who support it. Clearly, the correct balance must be struck between the extremes of legislative over-invasiveness and the frightening total absence of legal structure. This paper articulates a framework that allows for legislative parsimony — a way to scale back state law in a way that avoids lurching to unnecessary extremes. I assume the libertarian premise that law should strive to encroach as minimally as possible upon social order, yet I argue that we must do this in a highly selective fashion, employing a range of legislative techniques. I call this approach legislative minimalism. The strength of legislative minimalism is its pragmatic flexibility: different situations will allow for different degrees of minimalism. The paper creates a taxonomy of legislative strategies, outlining five distinct strategies. This taxonomy provides a conceptual foundation to help guide policymakers faced with the question of how best to legislate — or more accurately, how much to legislate.