
Contents
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A. Formation and Development A. Formation and Development
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1. Constitutional Review in Portugal and Europe 1. Constitutional Review in Portugal and Europe
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a) Constitutional Review as an Idem Sentire Among European Peoples a) Constitutional Review as an Idem Sentire Among European Peoples
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b) The Portuguese Development as an Isolated Phenomenon b) The Portuguese Development as an Isolated Phenomenon
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2. The Review for Constitutionality as a Self-Evident Practice 2. The Review for Constitutionality as a Self-Evident Practice
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a) The Constitutional Monarchy and Weak Parliamentarianism a) The Constitutional Monarchy and Weak Parliamentarianism
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b) The Discussion in Portuguese Scholarship and Jurisprudence b) The Discussion in Portuguese Scholarship and Jurisprudence
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c) The Impact on the Current System of Constitutional Review c) The Impact on the Current System of Constitutional Review
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3. Constitutional Review in Constitutional Texts 3. Constitutional Review in Constitutional Texts
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a) The Republican Constitution of 1911 a) The Republican Constitution of 1911
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b) The Constitution of 1933 b) The Constitution of 1933
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c) The Original Version of the 1976 Constitution c) The Original Version of the 1976 Constitution
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4. The Founding of the Portuguese Constitutional Court 4. The Founding of the Portuguese Constitutional Court
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a) The First Constitutional Amendment (1982) a) The First Constitutional Amendment (1982)
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b) The Fruit of all Experiences b) The Fruit of all Experiences
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B. The Current Legal Design in Context B. The Current Legal Design in Context
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1. The Constitutional Court as an Institution 1. The Constitutional Court as an Institution
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a) The Constitutional Position of the Constitutional Court a) The Constitutional Position of the Constitutional Court
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b) The Justices b) The Justices
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c) The Internal Make-Up of the Court c) The Internal Make-Up of the Court
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2. The Types of Proceedings 2. The Types of Proceedings
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a) An Overview of the Constitutional Court’s Jurisdiction a) An Overview of the Constitutional Court’s Jurisdiction
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b) General Aspects of the Review of Statutes b) General Aspects of the Review of Statutes
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i. The course of proceedings i. The course of proceedings
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ii. The object of review ii. The object of review
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c) The Types of Judicial Review Proceedings, One by One c) The Types of Judicial Review Proceedings, One by One
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i. A priori judicial review i. A priori judicial review
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ii. A posteriori abstract judicial review ii. A posteriori abstract judicial review
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iii. Concrete judicial review iii. Concrete judicial review
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iv. Establishing an unconstitutional omission iv. Establishing an unconstitutional omission
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3. The Effects in Law of Judicial Review 3. The Effects in Law of Judicial Review
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a) A Priori Judicial Review a) A Priori Judicial Review
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b) A Posteriori Abstract Judicial Review b) A Posteriori Abstract Judicial Review
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c) Concrete Judicial Review c) Concrete Judicial Review
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d) Establishing an Unconstitutional Omission d) Establishing an Unconstitutional Omission
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C. The Role and Functions of Constitutional Adjudication C. The Role and Functions of Constitutional Adjudication
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1. The Relationship with Political State Bodies 1. The Relationship with Political State Bodies
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a) The Significance of A Priori Judicial Review a) The Significance of A Priori Judicial Review
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b) The Authority of the Constitutional Court b) The Authority of the Constitutional Court
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c) Light and Darkness in the Authority of the Constitutional Court c) Light and Darkness in the Authority of the Constitutional Court
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2. Constitutional Adjudication and the Ordinary Courts 2. Constitutional Adjudication and the Ordinary Courts
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a) Concrete Judicial Review and the Authority of the Constitutional Court a) Concrete Judicial Review and the Authority of the Constitutional Court
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b) The Dark Side of Concrete Judicial Review b) The Dark Side of Concrete Judicial Review
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D. Aspects of Evaluation D. Aspects of Evaluation
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1. The Public Perception of the Constitutional Court 1. The Public Perception of the Constitutional Court
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a) A Plethora of Complementary Powers a) A Plethora of Complementary Powers
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b) The Consequences of a Distorted Perception b) The Consequences of a Distorted Perception
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2. Constitutional Adjudication in National Constitutional Scholarship 2. Constitutional Adjudication in National Constitutional Scholarship
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a) The Historical Condition of the 1976 Constitution a) The Historical Condition of the 1976 Constitution
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b) The Academic Context and its Problems b) The Academic Context and its Problems
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c) The Contemporary Fault Lines in the Debate c) The Contemporary Fault Lines in the Debate
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3. The Understanding of the Role Within the European Legal Space 3. The Understanding of the Role Within the European Legal Space
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a) The Receptiveness for the European Legal Space a) The Receptiveness for the European Legal Space
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b) The Relationship with the European Convention on Human Rights b) The Relationship with the European Convention on Human Rights
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c) The Relationship with the Legal Order of the European Union c) The Relationship with the Legal Order of the European Union
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13 The Portuguese Constitutional Court
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Published:March 2020
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Abstract
This chapter covers the Portuguese Constitutional Court. The Portuguese system of constitutional review developed to a great extent independently from the European experience and its issues. The origin of the Portuguese model of constitutional review is rather to be found in the deeply rooted tradition of a general power of review and disapplication. To grasp the current Portuguese system with all its peculiarities, the chapter scrutinizes the beginnings of the courts’ general power of review and disapplication. It shows that the development itself was an isolated one, and to this day its doctrinal classification remains problematic. After an overview of the role and functions of constitutional adjudication in Portugal, the chapter considers several aspects for evaluation. These are: the public perception of the Constitutional Court, constitutional adjudication in national constitutional scholarship, and the understanding of the role within the European legal space.
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