The Law of Portugal is part of the family of what in English-speaking countries are sometimes called the "civil law" legal systems, referring to legal systems that developed at least in conversation or close ties with systems influenced by the ius commune medieval European tradition of Roman law (however, Scandinavian legal systems are often counted as such, despite the former not penetrating in influence, as opposed to local North Germanic customary 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 later 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.CAETANO, Marcello, «História do Direito Português», 1944
In the 19th century, the French civil law was the main influence in the Law of Portugal. However, since the early 20th century, the major influence has been the German civil law. This growing of the Germanistic influence was mainly driven by works on civil law developed by legal theorists of the University of Coimbra under the leadership of professor Guilherme Alves Moreira, who published his decisive Instituições de Direito Civil from 1906 to 1916. European Union law is now a major driving force in many respects, such as corporate law, administrative law and civil procedure.
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 Constitution (1976, as amended), the Civil Code (1966, as amended), the Penal Code (1982, as amended), the Labor Code (2003, as amended) and the Commercial Societies Code (1986, as amended). The Commercial Code (1888, as amended) and the Administrative Code (1945, as amended) used to have a high importance in the past, but are now largely obsolete and partially replaced by new legislation.
History As in most other European medieval countries, Portugal did not have centralized political institutions that would enact statutory law on an everyday basis. 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.Nuno Gomes da Silva, História do Direito Português,4.ª edição, FCG, p. 155
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 customary law and Roman law, mostly derived from the Corpus iuris civilis.
What would be the Portuguese law has its roots in the laws that were applied in the Far Western region of Europe that would become Portugal. These included the customary law of the Indo-European and Celtic peoples that originally lived in the area (including the Lusitanians and the Gallaecians), the Roman law applied after the annexation of the region by the Roman Empire, the German law introduced by the Germanic invaders (including the Visigoths and Suebi) and the Canon law applied after the adoption of the Christianity and the increased influence of the Church.Ernesto Fernandes e Anibal Rêgo, História do Direito Português (Súmula das lições proferidas pelo Prof. Marcelo Caetano), Lisboa, 1941
After the establishment of independent Kingdom of Portugal in 1143, the historical evolution of its law can be generically divided in the following periods: 12th–13th century – Use of the customary and custumal law, with a strong Roman, Germanic and Canonical influence; 13th–15th century – Roman-Byzantine (Corpus iuris civilis) and Canon-derived law; 15th–18th century – Roman-Byzantine and Canon derived law, compiled in the Ordinances; 18th century to 1832 – Introduction of the natural law and the increasing influence of the Liberalism; 1832–1926 – Strong influence the liberalism and individualism and introduction of the codification of the law; 1926–1974 – Strong influence of corporatism; Since 1974 – Modern era, with socialism influence, latter tilted to the Neoliberal and European law influence.
Ordinances
However, following the 1383–85 Crisis, the beginning of the age of Portuguese Discoveries and the establishment and growing of the overseas empire, the Kings of Portugal were able to grow politically stronger.
This strength allowed the centralization of power and an increase of legal authority of the central State. One of the expressions of this authority was the creation of compilations of laws in use in the Kingdom referred as the "Ordinances" (). 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 were unreasonable.
The first of these ordinances was created by the initiative of King Edward, under the lead of Doctor of Law . 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 Alfonsine Ordinances ().
These ordinances included: Alfonsine Ordinances, 1446 (formally approved 1454) – under King Edward and Duke Peter of Coimbra (regent in the name of King Afonso V, while he was a minor); Manueline Ordinances (), 1512–1520 – under King Manuel I. They were modified in 1526, 1533 and 1580; (), 1603 – under King Philip II. As these were established during the period of the Iberian Union, they were influenced by Spanish law.
The ordinances of 1603 continued to be used in Portugal and throughout the Portuguese Empire until the first came into force in 1867. In Brazil, they continued to be in force after independence in 1822 and constituted the framework of civil law until 1916, when the first Brazilian Civil Code was introduced.
The process of codification
Following the establishment of the Constitutional Monarchy, Portugal applied deep reforms in its legal system that included a wide process of legal codification. This process led to the creation of a number of codes of law, including the constitutions themselves (Constitution of 1822, replaced by the Constitutional Charter of 1826), the Administrative Code (1842), the Penal Code (1852, after a failed initial attempt in 1837), the Civil Code (1867) and the Commercial Code (1883).
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 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 Portuguese India, it was introduced in 1870, suffering a major local adaption in 1880 to contemplate the usages of the local Hindu community. With the amendments and adaptations suffered until then, the Code of 1867 was in force in the territories of Portuguese India when the Republic of India invaded them (Dadra and Nagar Haveli in 1954 and the rest of the territories in 1961), with the Code of 1966 never being applied here. The Portuguese legal system was kept in place and the Code of 1867 is still in force in what is now the Goa state – where it is referred as the Goa Civil Code or the Goa Family Law – and also in what is now the union territory of Dadra and Nagar Haveli and Daman and Diu.
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 Angola, Cape Verde, Guinea-Bissau, Mozambique and São Tomé and Príncipe, even after the independence of these countries in the period of 1974–1975. In Timor-Leste, it was replaced de facto (although not de jure) by the Indonesian Civil Code (itself based in the Dutch Civil Code of 1838) when Indonesia annexed this country in 1976, following its invasion in the previous year. After regaining independence in 2002, Timor-Leste adopted its own Civil Code in 2011, which follows closely the Portuguese Code of 1966. Macau continued under Portuguese administration until 1999 and, in this last this year, replaced the Code of 1966 by its own Civil Code which effectively amounts to a revision of the previous Code, prepared under the influence of Portuguese jurists, especially from the Faculty of Law of the University of Coimbra.
Modern era After the Carnation Revolution in 1974, the Portuguese legal system was changed due to the new political and civil demands. The new Constitution approved in 1976, was written under a myriad of communist and socialist-inspired ideologies and bias 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. 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.