The Ambibuities of «Granted Constitutionalism»: A Transatlantic Debate (II)

Abstract

After France, and before Brazil, the second article concerns Portugal. The portuguese legal framework was appropriate to stem the birth of the constituent power. Reconstructed on the basis of an apocryphal transcription of its founding pact, the Cortes of Lamego of 1143, the portuguese public law benefited on top of a written document born in the XVth century, the Ordenações. This double peculiarity, making "iberian liberties" a model of the ancient constitutionalism, explains the reverential respect for these medieval borders and the hatred following Dom Pedro's granting in 1826. In these conditions, and in spite of the program followed by a "granting power" which refuses to define itself as constituent, the granted constitutionalism had to appear as an artificial product, disregarding the cultural, legal, social and religious heritage of the population. Paradoxically, the same criticism will be resumed and adapted by positivists and republicans to denounce the barren presence of the modern constitutionalism ; the future salazarists will make good use of it, to demand the return of the constitutional morality, carelessly lost by these proud innovations born from the "disrupted spirits" of the liberalism.

Enviado el (Submission Date) : 13/02/2107
Aceptado el (Acceptance date) : 22/05/2107