Government of the Law or Government of the Judges? The First Century of the Supreme Court of Justice in Portugal

Abstract

The installment of High Courts of Justice by the constitutional regimes of the early 19^th century was related, rather than to the provision of a third instance of appeal, to a structural principles of a new political order - the separation and independence of powers, ensuring that neither the executive nor the judicial could encroach the primacy of parliamentary law. let the courts enforce the law. This was the origin of the institute of Cassation. Behind this question of political doctrine, a less doctrinal political issue was at stake, namely the tension between lawyers and politicians in the conformation of law in a democratic State.

The Portuguese Supremo Tribunal de Justiça (1822) arose in this context. Its aim was both to syndicate magistrates charged with misbehavior and, above all, to ensure compliance of administration and justice with the law.

With the whole law, not with parliamentary statute law. With the law – it is meant -, understood with the span coming from the Ancient Regime, a doctrinal and jurisprudential law, based on the diverse constellation of sources of law provided in the Lei da Boa Razão (1769) and in the enlightened University reform of Legal Studies, 1772. Accordingly, far from being a guarantor of the new constitution and of new legality, the new high court could function as a factor of corruption of the new constitutional and legal order, as both the Constitution and laws could be subject to the filter of traditional law. In this way, a State based on popular would turn into a State geared by the body of legal professionals, a situation eagerly coveted by lawyers.

Submission Date: 17/03/2011

Acceptance Date: 4/05/2011