Law of Portugal
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The Law of Portugal is the legal system that applies in Portugal. The Portuguese legal system is a civil law or continental legal system, based on Roman law. It is similar to other civil law legal systems found in other European countries such as France, Italy, Spain and Germany. Up to the end of the 19th century French law was the main influence, but since the decisive works of Guilherme Moreira on Civil Law (Instituições de Direito Civil, published from 1906 to 1916) the major influence has been German law. EU law is now a major driving force in many respects, such as corporate law, administrative law and civil procedure. The main laws include the Constitution (1976, as amended) the Civil Code (1966, as amended) and the Penal Code (1982, as amended). Other relevant laws are the Commercial Code (1888, as amended) and the Civil Procedure Code (1961, as amended).
As in most European 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. 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 custumary law and Roman law, mostly derived from the Corpus iuris civilis.
However, with the age of discoveries and a growing empire, Portuguese kings also grew politically stronger and managed to impose centralizes legal authority by creating several compilations of law. These attempts to codify law were not only a way to unify and bring together local legal traditions from the whole country, but also to correct some customs the Monarch thought to be unreasonable. These legal compilations were the
- Ordenações Afonsinas 1446 (formally 1454 by Pedro, Duke of Coimbra)
- Ordenações Manuelinas 1512-1520 - under Manuel I; modified in 1526, 1533, 1580
- Ordenações Filipinas 1603 (during the Philippine Dynasty, some Spanish laws were incorporated)
These Ordenações were used throughout the Portuguese empire until the first Civil Code came into force in 1867. The first Civil Code is usually referred to as "Seabra's Code", due to the collaboration of the Count of Seabra in its making.
The second and current Civil Code was enacted in 1966; it is still in force in various former colonies, but not in Macau, where it was superseded by the territory's Civil Code enacted in 1999, which effectively amounts to a revision of the 1966 Code, prepared under the influence of Portuguese jurists, especially from the Faculty of Law of the University of Coimbra.
After the Carnation Revolution in 1974, the Portuguese legal system was changed due to the new political and civil demands. The new Constitution was written under myriad communist/socialist-inspired ideologies and bias in order to replace the previous regime's system. For a number of years, the country bounced between socialism and adherence to the neoliberal model. Land reform and nationalizations were enforced; the Portuguese Constitution (approved in 1976) was rewritten in order to accommodate socialist and communist principles. Until the constitutional revisions of 1982 and 1989, the constitution was a highly charged ideological document with numerous references to socialism, the rights of workers, and the desirability of a socialist economy. The sharp increase of the number of lawyers and judicial sate-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 numerus clausus vacancies for new law students across the whole country year after year, together with lower admission selectivity and a downgrade of academic integrity. Already internationally known for decades as excruciatingly slow and inefficient for European Union and USA standards, Portugal's justice system was by 2011 the second slowest in Western Europe after Italy's, even though it has one of the highest rates of judges and prosecutors, over 30 per 100,000 people, a feature that plagued the entire Portuguese public service, reputed for its overcapacity, useless redundancies and a general lack of productivity as a whole. After the collapse of the Portuguese public finances and banking system in 2011 amid the larger European sovereign debt crisis that impelled Portugal to European Union-International Monetary Fund state bailout, many reforms were put in place and measures to cut down costs and increase productivity were enforced across the entire public service. The number of district courts were slashed to 23 from 320, pooling their work in larger centers and closing courts in rural areas where the population has shrunk since the system was established in 1837. Courts were also reorganized to specialize to deal with labor or trade issues.
In the past decade (2000–2010) Portugal has increasingly become one of the most LGBT-friendly countries in the world, with many pro-LGBT legislation and bans on LGBT discrimination, including one of the few Constitutions in the world that protects on grounds of sexual orientation. LGB are allowed to serve openly in the military and also legally allowed to donate blood. On 31 May 2010, Portugal became the sixth country in Europe and the eighth country in the world to legally recognize same-sex marriage on the national level. The law came into force on 5 June 2010. The new Law of Gender Identity that will allow for transsexual people to change their name and sex in legal documentation is expected to come into effect in 2011, and it is considered the most liberal of its kind in the world. Although full equality in parenting is not yet legal, LGBT-parenting single adoption is allowed and biological LGBT-parenting will also be legal with the new Law of Gender Identity (re-opening the social debate for full rights in parenthood).
Influence in other countries
The Portuguese variant of civil law legal systems is used in various countries and territories around the world, mostly former Portuguese colonies, including:
- India (only in the union territories of Dadra and Nagar Haveli and of Daman and Diu and the int state of Goa)
- Cape Verde
- Brazil (to a lesser extent)
- São Tomé e Príncipe
Education, training and research in law
There are several Law Schools in the Portuguese universities. The oldest is the Law School of the University of Coimbra, which dates back to the 13th century. The Law Schools at the Lisbon University and the University of Coimbra are nowadays the most reputed by the number of highly distinguished alumni and professors linked to it. Lisbon's is linked to personalities such as Marcelo Caetano, Marcelo Rebelo de Sousa, António de Menezes Cordeiro, Jorge Miranda, António Vitorino, José Manuel Barroso, Adriano Moreira and Mário Soares. Coimbra's is linked to personalities like António de Oliveira Salazar and Almeida Santos. The law degrees offered by the Portuguese Catholic University at Lisbon are also reputed since the school achieved notability by its academic publications, the curricula of its teaching staff and the number of well-connected alumni it harbors. Both the Law Schools of the New University of Lisbon and Minho University are considered modern law schools with an increasingly higher reputation. 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 selectiviness 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 Ordem dos Advogados Marinho Pinto.
- Nuno Gomes da Silva, História do Direito Português,4.ª edição, FCG, p. 155
- (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."
- (Portuguese) "Universidades abandalharam ensino do direito", Diário de Notícias (April 9, 2012)
- Insight: Rushed Portugal justice reform risks more error than trial, Reuters (Sep 19, 2012)