Administrative inertia as a violation of the principle of the rule of law in Portugal

• Pages: 237-257
• Author: António Malheiro De Magalhães

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ADMINISTRATIVE INERTIA AS A VIOLATION OF THE

PRINCIPLE OF THE RULE OF LAW IN PORTUGAL

ANTÓNIO MALHEIRO DE MAGALHÃES



University of Coimbra. Portugal.

SUMMARY: 1. DEMOCRATIC AND SOCIAL STATE UNDER THE LAW AND

DIGNITY OF THE HUMAN PERSON. 1.1. The enshrinement of the prin-

ciple of the Democratic Rule of Law in the Portuguese Constitution of

1976. 1.2. Human Dignity as a founding value of Portuguese Basic Law.

1.3. The “Anthropological Axiom” and the triple constitutional charac-

terization of the Portuguese state: Rule of Law, Democratic and Social.

1.4. The Democratic and Social state (of Law) as a specific “constitutio-

nal formula” of a state of Substantive Law. 2. REGULATORY ADMINIS-

TRATION AND IMPLEMENTATION OF THE PRINCIPLE OF THE SOCIAL

RULE OF LAW. 2.1. Material privatization of “Public Services” and Regu-

latory state. 2.2. The paradigm of the “new social state”: regulation and

regulatory bodies. 2.3. Powers of Regulation/Supervision and Pursuit

of Public Interests as the scope/task of the Administration of the “New”

Social state of Law. 3. INERTIA OF THE REGULATORY ADMINISTRA-

TION AND VIOLATION OF THE DEMOCRATIC AND SOCIAL STATE OF

LAW – “REMEDIES TO COMBAT”. 3.1. Failure to exercise the functional

powers legally assigned to the Regulatory Administrative state for the

fulfilment of its duties. 3.2. Generic proposals for the implementation

or legal formulation of appropriate remedies to combat administrative

“inertia”. 3.3. The Subjective Right of Citizens to the “Public Action” of

the Regulatory state. 4. A FUNCTIONALLY ACTIVE REGULATORY ADMI-

NISTRATION AND POSTPONING INERTIA TO SAFEGUARD THE DEMO-

CRATIC AND SOCIAL STATE OF LAW. 5. CONCLUSION.

ANTÓNIO MALHEIRO DE MAGALHÃES

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1. DEMOCRATIC AND SOCIAL STATE UNDER THE LAW AND DIGNITY

OF THE HUMAN PERSON.

Since we passed through the “Iron Gate” of the ancient University of

Coimbra – in traditional Coimbra parlance, “Porta Férrea” – some forty-two

years ago to begin our Law Degree course, we have heard and internalized,

from the very beginning, through the learned words of our beloved Master and

distinguished Constitutionalist, Professor Gomes Canotilho – who, in addition to

the obligation that falls upon us, we will always be proud to praise – that Portugal

is a “democratic state under the Law”.1 This is, in fact, a “key concept” of the

Portuguese Constitution, albeit a “complex” one, given, at the very least, the

requirement for coordination/compatibility of its two components: the rule of

law and the democratic state.2 In this regard, Jorge Miranda recalls, following

the thinking of Jürgen Habermas, that “the democratic principle and the principle

of the rule of law are co-originary principles. One is not possible without the

other, without, therefore, imposing restrictions on the other”.3

1.1. The enshrinement of the principle of the Democratic Rule of

Law in the Portuguese Constitution of 1976.

Although in its original text, the expression “rule of law” “only” appeared

in the Constitution’s Preamble,4 it would be fair to say that, in fundamental

legal and normative terms, Portugal effectively came under it with the entry

into force of the Portuguese Constitution of 1976, which will celebrate its 50th

anniversary next year. This, despite the seven revisions to which it has been

subjected since, which, in our view, are highly commendable, precisely because

they aimed, in one way or another, at improving and establishing the democratic

statehood of law and its corollaries in concrete terms, such as the enforcement

1 This “dimension of the rule of law ” is revealed in the Basic Law of 1976 through a

“complex of principles and rules dispersed throughout the constitutional text” that concretize its

“core idea”, i.e. “the subjection of power to legal principles and rules - guaranteeing individuals

and citizens freedom, equality before the law and security”. See GOMES CANOTILHO, J. J., 

Constitucional e Teoria da Constituição, op. cit., pp. 230 and 231.

2 See GOMES CANOTILHO, J.J. e MOREIRA, Vital, Constituição da República Portuguesa

Anotada, Coimbra Editora, vol. I, 4th Edition, 2006, p. 204.

3 Cf. MIRANDA, Jorge,  , Almedina, Coimbra, 3rd Edition, October

2020, pp. 266-269.

4 Ibidem, p. 204. According to Jorge Miranda, although this reference is “merely” a

preamble, the Constitutional Commission did not fail to recognize “legal value” in some judgments.

It should be noted that the Constitutional Commission functioned as an auxiliary body of the

Revolutionary Council, which, in the original version of the 1976 Constitution, i.e. before the creation

of the STF, also through the constitutional revision of 1982, exercised the function of controlling the

constitutionality of norms. See MIRANDA, Jorge, , op. cit., p. 261, note 625.