Elaborating a new paradigm of fault of the legislative power and the correspondent criterion of judgment: A problematic analysis in the field of state liability for legislative activities

Abstract

This paper aims to study critically the concept and the criterion for judgment of fault introduced by doctrine and adopted by the courts in the scope of state liability for legislative activities. Firstly, we intend to inquire the role of fault in this state liability; after that, we perform a critical argumentation against the present paradigm of fault of the legislative power almost consensually adopted under Portuguese Law and try to achieve the objective of elaborating a new paradigm which is (in our perspective) dogmatically more rigorous to this aim; finally, we investigate the methodological repercussion that the specialty of the state liability for legislative activities has upon the criterion for the judgment of the fault of the legislative power.