1 Introduction and overview
2 From Hobbes to Buchanan
2.1 Hobbesian natural law
In discussing an original constitution or improvements in an existing constitution, we shall adopt conceptual unanimity as a criterion … First, only by this procedure can we avoid making interpersonal comparisons among separate individuals. Secondly, in discussing decision rules, we get into the familiar infinite regress if we adopt particular rules for adopting rules. To avoid this, we turn to the unanimity rule, since it is clear that if all members of a social group desire something done that is within their power, action will be taken regardless of the decision rule in operation. (1962/1999, vol. 3, p.15).
it is precisely at this level that profound and ultimately dangerous confusion emerges about the role of the state in making constitutional law and in modifying the whole set of legal arrangements, including the assignment of individuals’ rights and claims. In its most blatant form this confusion emerges in the form of legal positivism, which states that ‘the law’ is what the state determines it to be and that individual rights are, and must be defined, by the state and, as a consequence are necessarily dependent on the state. (Buchanan, 2001a, vol.18, p. 176)14
2.2 Unanimity as basic democratic requirement
3 Bukantianism
3.1 Unanimity as expressive of political Kantianism
‘The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.’ This is the fundamental problem of which the Social Contract provides the solution. ((Rousseau, 1762/1923), chap VI, „The social compact”.)