Despite far‐reaching historical and political differences, and despite legal systems that reflect altogether different traditions, the United States and Austria manifest striking similarities where some aspects of their respective development of constitutional review are concerned. For example, on the constitutional review of federalist issues (competing claims of federal and state law), the review power was there from the beginning in both countries. And both countries developed a power of constitutional review reaching to the enactments of the federal legislature. In a (...) brief sketch of aspects of the early development of constitutional review in both countries, the author looks, in particular, to the kinds of arguments made on behalf of constitutional review in the American and Austrian legal systems. (shrink)

In the Social Contract Rousseau gives what could be called a philosophical rule of recognition for law in Modernity: a law is law if and only if 'the whole people rules over the whole people'. Thus, he defines self-legislation as, at bottom, collective intentional action. I will first map out the speech act structure [LEX] underlying self-legislation on this account. In particular, I argue for a first person plural counterpart of the reflexive structure inherent to intentions generally: the notion of (...) a collective self. Then I take issue with Bratman's analysis of shared intentional activity in terms of mutuality, submitting that it misses out on the specifically political presupposition involved in 'doing something together'. I will show why 'mutuality' requires representation of the unity of a polity, and how this representation can take form without either external authority or mutual responsiveness. (shrink)