At the turn of the epochs. Beginning of the “modern state” in Portugal

Abstract

Portugal has a rich tradition in establishing the democracy. This tradition dates back to the 19th century and first Portuguese Constitution which was adopted in 1822. The Constitution, founded on the liberal principles, on the one hand referred to the experiences of the leading countries, which became constitutional models in Europe, and on the other, referred to the constitutional concepts characteristic of Portugal itself. Special importance should be attributed to the “Lei da Boa Razão” Act (Act on the principle of equity), adopted in 1769, during the kingship of Joseph I and reign of his prime minister marquis de Pombala. According to its provisions, equity has become a criterion in recognizing the validity of legal norms. The new law initiated a reform of the sources of law and was essential for the formation of the liberal state. In particular, it allowed to establish a “universal public law”, as it ordered the application of the law of “Christian, civilized and political nations” in “modern” fields, i.e. economy, trade and shipping. This law consolidated a trend to create law in writing and of general application. It also strengthened importance of the national law. Though, as the Portuguese law regulated family relationships only fragmentarily, and as “Lei da Boa Razão” was very vague, the application of law was left to the judges, who had to take into account the so-called subsidiary law. In consequence, the role of judges was particularly important. The same applies to the role of the doctrine. Although, the Constitution of Portugal from 1822 did not regulate the issue of the sources of law, it introduced the principle of subordination of the judges to the Constitution and the Law. The term Constitution involved in this case not only the Constitution itself but also sources of law, which were applicable by virtue of “Lei da Boa Razão” and findings established by doctrine of the civil law and public law. Constitution did not provide any remedy that would serve the judges to reject the law, when it would be in contradiction to the constitutional norm. Control of constitutionality in the modern sense has been established in Portugal eventually by the Constitution in 1911. It was a model of judicial review. Sources of law in Portugal, “Lei da Boa Razão”, Constitution from 1822, judicial review in Portugal.