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

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