Law of Portugal
The Law of Portugal is part of the family of the civil law legal systems, based on Roman law. As such, it has many common features with the legal systems found in most of the countries in Continental Europe.
Along its history, the law practiced in Portugal started to be based in the customary law of the indigenous peoples that initially occupied the region, that was latter influenced by the Roman and Visigothic laws. From the 13th until the 18th centuries, the main influence was the Justinian and Canon laws. In the 18th century, the main influence started to be the natural law.[1]
In the 19th century, the
The Law of Portugal is the basis or, at least, influences more or less sharply the legal systems of the several countries of the Community of Portuguese Language Countries and of some other territories that were once part of the Portuguese Empire. Therefore, these legal systems share many common features which, occasionally, makes them to be considered as a separate branch (Lusophone Legal System) in the scope of the wider family of civil law legal systems.
The main Portuguese laws include the
History
As in most other European medieval countries, Portugal did not have centralized political institutions with the means to enact laws to regulate everyday legal issues. Both the wars against Castile and the Reconquista turned the Crown and the Court into an army permanently on the move. Some Portuguese legal historians claim that in the first two centuries after the Treaty of Zamora in 1143—in which the León recognized Portuguese de facto sovereignty—the kingdom's political power was that of a "Warrior-State" that neither could, nor did, direct its resources to the organization of administrative institutions or to the productions of laws.[2]
An exception to this fact were the three laws enacted by King Afonso II in 1211 during the Cortes of Coimbra.
During most of Portuguese legal history, Portugal and its colonies had an ancient legal system based on a double foundation of medieval local
The Ordinations
However, following the
This strength allowed the centralization of power and an increase of the legal authority of the central State. One of the expressions of this authority was the creation of the compilations of the laws in use in the Kingdom referred as the "Ordinations" (Ordenações). These attempts to codify the law were not only a way to unify and bring together the local legal traditions from the whole Kingdom, but also to correct some customs that the Crown thought to be unreasonable.
The first of these Ordinations started to be created by the initiative of King Edward, under the lead of the Doctor of Law Rui Fernandes. Their first draft was presented in 1446, but they were only definitively reviewed and approved in 1454, already in the reign of Afonso V, so becoming known as the Ordenações Afonsinas.
The several Portuguese ordinations were the following:
- Ordenações Afonsinas, 1446 (formally approved only in 1454) - under King Edward and Duke Peter of Coimbra (regent in the name of King Afonso V, while he was a minor of age);
- Ordenações Manuelinas, 1512–1520 - under King Manuel I. They suffered modifications in 1526, 1533 and 1580;
- Ordenações Filipinas, 1603 - under King Philip II. As these were established during the period of the Iberian Union, they suffered some influence of the Spanish law.
The Ordinations of 1603 continued to be used in Portugal and throughout the Portuguese Empire until the first Portuguese Civil Code came into force in 1867. In Brazil, they continued to be in force after its independence in 1822 and constituted the framework of the civil law of this country until 1916, when the first Brazilian Civil Code was introduced.
The process of codification
Following the establishment of the
The first Portuguese Civil Code closely followed the model of the Napoleonic Code, being approved by the charter of law of 1 July 1867 and entering in force on 22 March 1868. It is referred as the "Code of 1867" or as the "Seabra's Code" due to the important collaboration of the jurist António Luís de Seabra (Count of Seabra) in its making.
Although formally in force for 100 years, the Code of 1867 suffered many modifications during its history. These included the amendments made since the beginning of the 20th century in order to tilt the Portuguese civil law towards the approach of the German legal system, by the influence of the ideas defended by the legal theorists of the University of Coimbra, headed by professor Guilherme Alves Moreira.
The Civil Code of 1867 was also applied to the then Portuguese overseas territories. In the
The second and current Civil Code was established on 25 November 1966, entering in force on 1 June 1967. It is referred as the "Civil Code of 1966" or as the "Vaz Serra's Code" in honor to Adriano Vaz Serra, who presided the commission that created it. This new Code followed the model of the German Civil Code (Bürgerliches Gesetzbuch) and was the culmination of the successive transformations of the previous Code of 1867 that made it to move away from the Napoleonic model and approach the Germanistic model of civil law.
The Code of 1966 was applied both to Portugal and to the reminiscent Portuguese overseas territories at that time. It continued to be in force until today in
Modern era
After the
The sharp increase of the number of lawyers and judicial state-employees throughout the following decades did not produce increased efficiency in the legal system. The proliferation of both private and public law schools created a massive increase of
Legislative system
Legislative process
Accordingly, with the Portuguese Constitution, the
The legislative process is led either by the Assembly of the Republic, by the Government or by the legislative assemblies of the autonomous regions, depending on the matter to be legislated and the corresponding respective competence of each body. The ordinary laws issued by the Assembly of the Republic are named "laws", those issued by the Government are named "decree-laws" and those issued by the regional legislative assemblies are named "regional legislative decrees".
The process of creation of the laws of the Assembly of the Republic starts with a bill either proposed by members of parliament (named "projects of law") or by the Government (named "proposals of law"). If approved by the Assembly, the bill starts to be designated "decree" and is sent for the promulgation by the President of the Republic. The promulgation is the act by which the President solemnly testifies the existence of a rule of law and intimates its observation. The President may however decide not to promulgate the act and to veto it with a political or legal justification. The veto can be exceeded if the bill is voted and approved by of more than two-thirds of the members of parliament, in which case the President is obliged to promulgate it. After the promulgation, the act is sent to the Government for a ministerial referenda and then is published in the Diário da República (official journal) as a law.
The process for the creation of decree-laws by the Government has two ways. The first one is the way of successive signatures, by which the bill is separately signed by each of the responsible
Effectiveness of the laws
In Portugal, the mandatory of a law appears with its publication in the Diário da República, but its effectiveness does not start in the day of the publication. The time interval between the date of publication and the date of effectiveness is the vacatio legis. This interval can be defined by the legislator as being from one day to one year. If the date of effectiveness is not expressly defined in the law, a vacatio legis of five days is assumed by default.
Portuguese laws can lose their effectiveness either by expiry or by revocation. The expiry can result from a clause in the own law (saying that the law is only effective during a given time or while a given situation occurs) or can result from the disappearance of the cause that originated the creation of the law. Regarding revocation, this results from the demonstration of a new will from the legislator against the previous will. The revocation can be partial (with only some dispositions of the old law being revoked by the new one) or total (with the revocation of the whole old law). The revocation can also be classified either as express (when a new law expressly declares the revocation of an old one) or as tacit (when it results from the incompatibility of the dispositions of a new law with the dispositions of an old one).
Hierarchy of the laws
The several types of laws, acts and statutes of Portugal constitute a hierarchic legislative system, with several ranks. The laws of the lower ranks have to comply with the laws of higher ranks. The hierarchy has the
1st rank - Constitutional laws, namely:
- Constitution (Constituição);
- Loose constitutional laws (leis constitucionais avulsas);
- Constitutional revision laws (leis de revisão constitutional).
2nd rank - International laws, namely:
- Rules and principles of the general or common international law;
- Norms of international conventions duly ratified or approved;
- Decisions adopted by the competent bodies of international organizations of which Portugal is a part;
- Provisions of the treaties governing the European Union and the decisions adopted by its institutions in the exercise of their respective powers.
3rd order - Ordinary laws, namely:
- Laws (leis);
- Decree-laws (decretos-lei);
- Regional legislative decrees (decretos legislativos regionais).
4th rank - Acts with the force equivalent to that of laws, including:
- Adoption of conventions, treaties or international agreements;
- Constitutional Courtdecisions of unconstitutionality or illegality with general binding;
- Collective labor agreements and other instruments of collective regulation of labor;
- Case laws (assentos) of the Supreme Court of Justice and of the Court of Auditors.
5th rank - Regulatory acts, including:
- Regulatory decrees (decretos regulamentares);
- Regulations (regulamentos);
- Decrees (decretos);
- Regional regulatory decrees (decretos regulamentares regionais);
- Resolutions (resoluções) of the Assembly of the Republic, of the Permanent Commission of the Assembly of the Republic, of the Council of State, of the Council of Ministers and of the regional legislative assemblies;
- Regiments (regimentos) of the Assembly of the Republic, of the Council of State and of the regional legislative assemblies;
- Ordinances (portarias);
- Normative orders (despachos normativos);
- Police regulations of the civil governors (regulamentos policiais dos governadores civis);
- Municipal by-laws (posturas);
- Municipal regulations (regulamentos autárquicos).
Specific legislation
Main laws of Portugal
From the countless loose legislation, stands out a number of
The principal law of Portugal is the
Regarding the other major branches of the law, they are mainly covered by the following codes:
- Criminal and criminal procedure - the Penal Code (1982), the Penal Procedure Code (1987), the Military Justice Code (2003) and the Sentence and Custodial Measures Execution Code (2009);
- Civil and civil procedure - the Civil Code(1966), the Civil Procedure Code (2004) and the Civil Register Code (1995);
- Labour law - the Labour Code (2003) and the Labour Procedure Code (1999);
- Administrative law - the Administrative Procedure Code (1991), the Public Contracts Code (2008), the Administrative Courts Procedure Code (2002) and the Administrative Code (1945, still partially effective but now largely obsolete);
- Commercial law - the Commercial Register Code (1986) and the Commercial Code (1888, still partially effective but now largely obsolete);
- Corporate law - the Commercial Societies Code (1986);
- Tax law - the Tax over Added Value Code (1984), the Tax over Single Persons Income Code (1988), the Tax over Collective Persons Income Code (1988) and the Tax Courts Procedure Code (1999);
- Entertainment law - the Advertisement Code (1990);
- Transport law - the Road Code (2005);
- Intellectual property law- the Industrial Property Code (1995) and the Copyright and Related Rights Code (1985).
Capital punishment
In the world, Portugal was a pioneer in the process of abolishment of the capital punishment.[7] It was abolished in stages - for political crimes in 1852, for all crimes except the military in 1867, and for all crimes in 1911. In 1916 Portugal entered in World War I and the capital punishment was reestablished only for military crimes in war time with a foreign country and only in the theater of war.[8] With the new Constitution in 1976, it was again abolished for all crimes.[7][9][10]
The last execution in Portugal took place in Lagos in 1846. A possible execution of a soldier of the Portuguese Expeditionary Corps carried out in France during World War One remains poorly documented.[7][9]
Life imprisonment
In 1884, Portugal became the first country in the world to abolish the life imprisonment. Presently, no person can be in prison for more than 25 years.
Besides having abolished the life imprisonment, Portugal is the only country in the world that considers that this type of punishment—both for minors and majors, with or without the possibility of parole - is a violation of the human rights.
LGBT legislation
In the
A new Law of Gender Identity come into effect in 2011. Being considered the most liberal of its kind in the world, it allows for transsexual people to change their name and sex in legal documentation.
In 2015, the full equality in parenting for LGBT couples was authorized by law. The LGBT-parenting single adoption was already previously allowed, joint adoption by the couple is legal since 2016.
Drugs legislation
Portugal was a pioneer in the approach to the drug abuse as a health issue, instead of the traditional criminal approach, implementing a new drug legislation in July 2001 that largely decriminalized drug use. In the world, the Portuguese drug policy and legislation is being used as a case study for other countries that desire to reform their policies and laws on this matter.[12]
The new legislation maintained the status of illegality for using or possessing any drug for personal use without authorization. However, the offense was changed from a criminal one, with prison as a possible punishment, to an administrative one if the amount possessed was no more than ten days' supply of that substance.
Influence in other countries
The Portuguese variant of the civil law is used or is the basis of the law of various other countries and territories around the world, mostly former territories of the Portuguese Empire.[14]
Angola
The Law of Portugal was applied in Angola until its independence in 1975. Many Portuguese laws effective before 1975 are still in force, namely the Portuguese Civil Code of 1966 with changes made in some matters. The new commercial law created after the reestablishment of the market economy in Angola is also still very influenced by the Portuguese one, with the Angolan Code of Commercial Societies of 2004 being based in the Portuguese similar Code of 1986.
Brazil
The Law of Portugal was applied in Brazil until its independence in 1822. After the independence, the Portuguese laws continued in force, gradually being supplemented or amended by the laws of the Empire of Brazil and latter by the Brazilian republican laws. Although already separate, having an independent development and receiving other influences, the Law of Brazil continued to be very influenced by the Law of Portugal, given the cultural affinities between the two countries, the high number of Portuguese residents in Brazil and also the fact that many Brazilian jurists received their training in law in the University of Coimbra. The Portuguese Ordinances of 1606 continued to be the frame of the civil law of Brazil until 1916, when the first Brazilian Civil Code entered in force. This Code was based in the German Civil Code (Bürgerliches Gesetzbuch or BGB), what coincided with a trend that was also being followed in Portugal of an approach to the Germanistic system of law. The present Brazilian Civil Code is that of 2002, being also inspired in the BGB, but also with a marked influence from the Portuguese Civil Code of 1966.
The constitutional law of Portugal also has a marked influence in Brazil, with the Portuguese Constitution of 1976 and the works on constitutional law developed by the Portuguese legal theorist José Gomes Canotilho being the main inspirations of the present Constitution of Brazil.
Cape Verde
In Cape Verde, many of the Portuguese laws effective before its independence in 1975 are still in force. Namely, with some alterations, are still in force the Portuguese Civil Code of 1966 and the Commercial Code of 1888. New Cape Verde laws continue to be very influenced by the Portuguese law.
Guinea-Bissau
Many of the Portuguese laws effective before the independence of Guinea-Bissau in 1974 are still in force. The Portuguese Civil Code of 1966 is still in force with some alterations. In the matter of commercial law however, the Law of Guinea-Bissau is becoming increasingly influenced by the law resulting from the Treaty of Harmonization of the Commercial Law in Africa of 1993, which follows French law.
India
Historically, the former Portuguese India contributed to Portuguese legal science with a number of important jurists and legislators, including the goan Luiz da Cunha Gonçalves.
The Portuguese civil law system still prevails in the last territories of the former Portuguese India (corresponding to the present
The Portuguese legal system was maintained after the occupation, although rapidly becoming altered by the influence of the English common law applied in the rest of India. This process was accelerated by the forced cut of relations with Portugal and the restrictions to the use of the Portuguese language, which reduced the number of jurists and other persons able to read and understand the Portuguese laws. However, the Portuguese Civil Code of 1868 is still in force, being known in India as the "
Macau
Macau was under Portuguese administration until 1999, with the general Portuguese laws being applied to that territory. The agreements between Portugal and China regarding the handover of the administration of Macau state that the Portuguese legal system would continue in force in the territory for 50 years. In the last years before the handover, the Portuguese Administration initiated a process of improving the Law of Macau, creating specific laws for the territory, although still very influenced by the Portuguese Law. One of the most important of these is the Macau Civil Code—an improvement of the Portuguese Civil Code of 1966, including a Chinese official version—that became in force in the last year of the Portuguese Administration.
Mozambique
The Portuguese Civil Code of 1966 and other Portuguese laws effective before the independence of Mozambique in 1975 are still in force, but with modifications. A new Commercial Code was adopted in 2005, replacing the Portuguese Code of 1888. A revised Penal Code came into force in 2015, replacing the Penal Code of 1886.
São Tomé and Príncipe
The Portuguese Civil Code of 1966 and other Portuguese laws effective before the independence of São Tomé and Príncipe in 1975 are still in force, but with modifications.
Timor-Leste
The Portuguese Law was in force in
Education, training and research in law
Portugal has a number of both public and private schools of Law. The oldest is the Faculty of Law of the University of Coimbra, which dates back to the 13th century.
Both the faculties of Law of the
The School of Law of the
In the 1990s, the offer of law degrees in Portugal became widespread across the entire country through both public and private university institutions. By 2010, lower selectiveness and academic integrity levels, including in law schools previously known for its reputation and prestige, debased the average teaching of law in Portugal according to the head of the
See also
References
- ^ CAETANO, Marcello, «História do Direito Português», 1944
- ^ Nuno Gomes da Silva, História do Direito Português,4.ª edição, FCG, p. 155
- ^ a b (in Portuguese) Estágio: Bastonário diz que Ordem vai recorrer de decisão de tribunal administrativo, ""Bater-me-ei com todas as minhas forças contra o facilitismo e bater-me-ei pela dignificação desta profissão. Queremos escolher os melhores e não os maus licenciados que tiram os cursos quase por correspondência ou porque pagam propinas", garantiu na ocasião."
- ^ a b (in Portuguese) "Universidades abandalharam ensino do direito" Archived 2 June 2012 at the Wayback Machine, Diário de Notícias (9 April 2012)
- ^ Insight: Rushed Portugal justice reform risks more error than trial, Reuters (19 Sep 2012)
- ^ "Legislation Portugal (Lexadin)". www.lexadin.nl. Retrieved 28 June 2023.
- ^ a b c "The end of capital punishment in Europe", Capital Punishment UK
- ^ "Law 635: Amendment to the Portuguese Constitution of 1911, Article 3 - Exception on the Death Penalty Article" (PDF). Diário do Governo da República Portuguesa (in Portuguese). República Portuguesa. 28 September 1916. Archived from the original (PDF) on 29 March 2014. Retrieved 29 March 2014.
[Translation]: The Death Penalty (...) cannot be reestablished in any case (...) # with the exception, about the Death Penalty, only in case of war with a foreign country (...) and only in the theater of war.
- ^ a b "Document - Death Penalty Statistics 2006", Amnesty International
- ^ "Constitution of the Portuguese Republic: Article 24º, Nº2" (in Portuguese). Retrieved 29 March 2014.
- ^ "Diário da República" (PDF). dre.pt (in Portuguese). 31 May 2010. Retrieved 28 June 2023.
- ^ "Drug laws around the world - does anyone get it right?". www.telegraph.co.uk. Retrieved 28 June 2023.
- ^ "EMCDDA:Drug policy profiles, Portugal, June 2011". Emcdda.europa.eu. 17 August 2011. Retrieved 27 July 2014.
- ^ "Ordem dos Advogados - Actualidade". www.oa.pt. Retrieved 28 June 2023.
- ^ Noronha, Frederick (9 June 2014). "Goa's Civil Code has backing of BJP, but it's not truly Uniform". Scroll.in. Retrieved 28 June 2023.