Judicial Review of Legislation in Portugal: A Brief Genealogy

Abstract

The standard model of constitutional justice in Europe comprises three main features: (i) judicial review of legislation is exclusively assigned to a specialized constitutional court; (ii) issues of constitutionality may be brought to the constitutional court through ‘abstract review’ or ‘preliminary review’; and (iii) the decision to strike down a law on constitutional grounds has an erga omnes effect. The Portuguese system departs from this standard model in a number of significant respects: (i) although there is a specialized constitutional court, ordinary courts are empowered to strike down unconstitutional laws; (ii) incidental control does not take the form of preliminary review but of appeals to the Constitutional Court from the decisions of ordinary courts on constitutional issues; and (iii) in the context of incidental control, the decision of the Constitutional Court has a strictly inter-partes effect. What accounts for these differences between the Portuguese system and the standard European model? Conventional wisdom points to a Portuguese tradition of judicial review of the diffuse variety going back many decades before constitutional courts were created or even imagined in Europe. The Portuguese system is thus supposed to have been produced by the encounter of that native tradition with the concentrated model that flourished in Europe post-1945. However, recent research paints a far more nuanced and complicated picture, and sits much better with what we know about the history of constitutionalism in Europe. Under that novel light, the Portuguese system is the outcome of a series of historical accidents and is relatively lacking in theoretical coherence.

Keywords: Judicial Review, Mixed System, Genealogy