Is There a Middle Ground Between Constitutional Patriotism and Constitutional Cosmopolitanism? The Portuguese Constitutional Court and the Use of Foreign (Case) Law

Giuseppe Franco Ferrari (Ed.), Judicial Cosmopolitanism – The Use of Foreign Law in Contemporary Constitutional Systems, Leiden/Boston: Brill/Nijhoff, 2019, pp. 424-448.

28 Pages Posted: 8 Oct 2019

See all articles by Catarina Santos Botelho

Catarina Santos Botelho

Porto Faculty of Law, Universidade Católica Portuguesa

Date Written: 2019

Abstract

This contribution reflects on the pros and cons of foreign extra-systemic legal elements and highlights the activity of the Portuguese Constitutional Court as one of the most cosmopolitan constitutional courts in the world. The Article is structured as follows: Part I analyses the Portuguese transition to democracy and the creation of a Constitutional Court. Part II examines the relevance of foreign (international) law and foreign case-law given by the Constitutional Court jurisprudence. We identified five types of constitutional borrowing: (a) reinforcing the Constitutional Court’s reasoning; (b) persuasive reasoning; (c) dissenting the majority opinion; (d) alerting to (or demystifying apparent) singularities of some constitutional law solutions; (e) refusing automatic and decontextualised importations of foreign law (nonborrowing decisions). The concluding remarks address the desirability of cross-citations in general and focus on the existence of a possible middle ground between constitutional “patriotism” and constitutional “cosmopolitanism”.

Keywords: constitutional patriotism; constitutional cosmopolitanism; comparative constitutional law; foreign (international) law and foreign case-law; constitutional borrowing

Suggested Citation

Santos Botelho, Catarina, Is There a Middle Ground Between Constitutional Patriotism and Constitutional Cosmopolitanism? The Portuguese Constitutional Court and the Use of Foreign (Case) Law (2019). Giuseppe Franco Ferrari (Ed.), Judicial Cosmopolitanism – The Use of Foreign Law in Contemporary Constitutional Systems, Leiden/Boston: Brill/Nijhoff, 2019, pp. 424-448. , Available at SSRN: https://ssrn.com/abstract=3460624

Catarina Santos Botelho (Contact Author)

Porto Faculty of Law, Universidade Católica Portuguesa ( email )

Rua Diogo Botelho, 1327
Porto, 4169-05
Portugal

HOME PAGE: http://catarinasantosbotelho.com

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