The Historical Origin Of The Wrong Doctrine Enshrined In The Portuguese Constitution Regarding The Fundamental Rights Regime

Abstract

Pursuant to what the prevailing Portuguese legal scholarship sustains, the Portuguese Constitution would have enshrined different legal regimes according to the different categories of constitutional fundamental rights: the regime of civil liberties (“direitos liberdades e garantias”), the regime of social, economic and cultural rights (“direitos económicos, sociais e culturais”) and the regime of fundamental rights analogous to civil liberties. This would mean that prior to solving any legal problem dealing with fundamental rights, both the category of fundamental right at stake, as well as the applicable legal regime, would have to be ascertained. This paper aims at determining the historical origin, which has up to now been left unquestioned and unclear, of this rather disturbing constitutional system: a unique system in the landscape of Constitutions promoting the rule of law.