Constitutionalizing Leviathan : A Critique of Buchanan’s Conception of Lawmaking

This article examines James Buchanan's conception of lawmaking, with specific respect to the institutional features he proposes in order to promote individual liberty. Buchanan's constitutional framework is based on his perception of the nature of lawmaking and the sources of law. This paper argues that Buchanan's often implied assumptions concerning the lawmaking process severely limits the theoretical strength of his constitutional framework and ultimately undermines the effectiveness of the institutional promoters of liberty he proposes. More specifically, Buchanan's rigid legal positivism, combined with his peculiar form of political contractarianism, stifles his view of the sources of law; therefore, he is unable to provide a satisfactory normative account of the complex relationship between the lawmaking process and individual liberty within the constitutional order