Portuguese Legal System: A Comprehensive Overview

Posted on Sep 8, 2024 in Law & Jurisprudence

STATE BUILDING:

The Constitutional text was drafted on April 2, 1976, and has undergone multiple amendments, called revisions, in 1982, 1989, 1992, 1995, 2001, 2004, and 2005.

Ombudsman (“Provedor de Justiça”):

The Ombudsman receives all complaints from Portuguese citizens against the government and Portuguese public administration.

Allows persons (individuals and collective entities) to complain about the public administration and the legal system in general.
The current Ombudsman is José de Faria Costa.
Complaints may be made free of charge.
Individuals and companies may use the Ombudsman as a (less costly) alternative to litigation.
Complaints carry a reputational sanction (at least) for the body complained against.
The Ombudsman makes non-binding recommendations.

“Citizens may submit complaints against actions or omissions by the public authorities to the Ombudsman, who shall assess them without the power to take decisions and shall send the competent entities and organs the recommendations needed to revert or make good any injustices.”

Entities Exercising Sovereignty:

The President of the Republic, the Assembly of the Republic, the Government, and the Courts are entities that exercise sovereignty. The formation, composition, competences, and modus operandi of these entities are defined in the Constitution.

President of the Republic:

The President of the Republic:

Keeps the balance of the country.
Individual access to the President of the Republic is “less immediate” than to the Ombudsman.
Answers before the Supreme Court of Justice for crimes committed in the exercise of his functions. He is judged by the Supreme Court if his crimes are related to his job.

Competences of the President:

To exercise the functions of Commander-in-Chief of the Armed Forces.
To enact laws, executive laws, and regulatory decrees and order their publication, and to sign both resolutions of the Assembly of the Republic that approve international agreements and the rest of the Government’s decrees.
To submit important issues of national interest, as laid down in Article 115, and those referred to in Articles 232(2) and 256(3), to referendum.
To declare a state of siege or a state of emergency, in compliance with the provisions of Articles 19 and 138.

Council of State:

The Council of State is chaired by the President of the Republic and is composed of the following members:

The President of the Assembly of the Republic
The Prime Minister
The President of the Constitutional Court
The Ombudsman
The presidents of the regional governments
Former Presidents of the Republic who were elected under the Constitution and were not removed from office
Five citizens appointed by the President of the Republic for the period of his term of office
Five citizens elected by the Assembly of the Republic in harmony with the principle of proportional representation, for the period that corresponds to the duration of the legislature

Assembly of the Republic:

The Assembly of the Republic shall have a minimum of one hundred and eighty and a maximum of two hundred and thirty Members, as laid down by electoral law. Save for the restrictions that electoral law lays down in relation to local incompatibilities or the exercise of certain offices, all Portuguese citizens who are registered to vote are eligible for election.

Government:

The Government comprises the Prime Minister, the Ministers, and the Secretaries and Under Secretaries of State.

The Government may include one or more Deputy Prime Ministers.
The number, designation, and responsibilities of the ministries and secretary of state’s offices and the forms of coordination between them shall be decided in each case by the decree appointing the respective officeholders, or by executive law.
Each prime minister can define all the offices.

Constitutional Court:

The Constitutional Court is composed of 13 judges:

10 elected by the Assembly of the Republic (by a two-thirds majority)
3 elected by the already elected judges

Supreme Courts:

Each Supreme Court has a specific function.
The Supreme Court of Justice handles courts of law of the 1st and 2nd instance.
The Supreme Administrative Court handles the remaining administrative and tax courts.

Art 204: Compliance with the Constitution:

In matters that are submitted for judgment, the courts may not apply norms that contravene the provisions of the Constitution or the principles enshrined therein.

Categories of Courts:

In addition to the Constitutional Court, there are the following categories of court:

The Supreme Court of Justice and the courts of law of first and second instance
The Supreme Administrative Court and the remaining administrative and tax courts
The Court of Auditors

LITIGATION:

Definition:

Litigation is an action brought in court to enforce a particular right. It is the act or process of bringing a lawsuit and engaging in a judicial contest or dispute. Litigation is an economic decision.

Plaintiff: The person who initiates litigation (from the French “porter plainte”: the complainant).
Defendant: The person who has to defend himself from the accusation.

Litigation (for the plaintiff) is an economic decision made when the expected return is greater than the costs.

Stakes of the case (X): The global value of the case, representing the damage suffered by the plaintiff due to the defendant’s fault.
Probability of the Plaintiff (P) winning (M): Ranges from 0 to 1, reflecting the uncertainty of the judge correctly valuing the damage.
Expected gross return: M x X
Costs of Litigation: Plaintiff’s Costs (Cp) and Defendant’s Costs (Cd)
Case profitability: The plaintiff will go to court if M x X > Cd; otherwise, they won’t.

The Positive Case of Litigation:

Solves the plaintiff’s liquidity constraint.
Motivates the lawyer’s effort (solves the moral hazard problem).
Risk aversion is very important because the plaintiff shares risk with the lawyer.

The Negative Case of Litigation:

Asymmetric information seems to be a good thing (lawyers’ monopoly): the lawyer knows best if a case is good or not and how good the case is.
However, the lawyer (who also has asymmetric information on judicial uncertainty) has an incentive to settle too quickly.

OVERSUIT:

Oversuit occurs when a plaintiff contemplates bringing a suit considering only their own costs and not taking into account the defendant’s costs or the State’s costs that the suit will engender. This may lead to suits being brought even when the total costs associated would make it undesirable. An example is strict liability in car accidents.

UNDERSUIT:

Undersuit occurs when the plaintiff does not treat the social benefits flowing from a suit, notably its deterrent effect on the behavior of injurers, as a benefit to themselves. They only consider their personal gain from prevailing. Examples include cases where serious harm occurs but rules on evidence are very restrictive (e.g., flagrante delicto necessary/tapings and recordings are not allowed unless the defendant knew they were being taped) (US).

Social welfare = expected value of reversal – costs of appeal.

PROPERTY:

Ownership:

Ownership is the epicenter of our social organization. The manner in which the law defines and protects this exclusive right is an important marker of the nature of society. The law always has something to say on this subject, either:

Conferring absolute rights of property
Recognizing collective rights
Adopting a position in between

When is an owner an owner?

Determining who has the strongest long-term right to control the thing in question.
Important for transactions: normally the right of ownership includes the right to transfer ownership to another.
In the case of land, one may not know whether the seller is the legal owner.
Reason for public land registration: to enable prospective buyers to establish who the genuine owner is.

How does the law protect this “long-term right to control”?

The law may be called upon to settle a contest between the owner and the possessor of a thing.
While the owner is the person with the strongest long-term claim to the possession of a thing, sometimes these two positions are severed.

Ownership vs. Possession:

Suppose I rent my villa to you for a year. You currently possess the property, and while I have an ultimate right to possess it, some legal systems favor the right of the tenant over the owner, while others prefer the owner.

Liability Rules (“Responsabilidade Civil”):

“If someone breaks a window or breaches a contract, he gets sued for damages (MONEY) roughly equal to the cost he has imposed on the victim.”
A liability right to something means that if it is taken, the taker is punished in a fashion intended to make it in his interest not to have taken it: damages equal to damages done.
Conclusion: The right of performance of a contract or the right not to have your property accidentally damaged is a liability right, protected by Civil (Contract and Tort) Law.

Property Rules:

“If a person steals a car and is caught and is convicted, he ends up in jail (NOT ALL ABOUT MONEY)”
Damages high enough always to deter.
Conclusion: The right to possession of your car is a property right, protected by Criminal Law.

CONTRACT:

According to Friedman, contracts are meant to be performed. It is a question of word, honor, and trust. Breach or non-performance entitles the injured party to protection under a liability rule (damages = damages done).

Three Main Problems with Contracts:

Paternalism: Courts believe they know better what the terms should have been.
When is an agreement a contract?
Meaning of words: We use the theory of interpretation to help us.
How much detail is necessary? Incompleteness of contracts theory; we use remission to help us.

FREEDOM OF CONTRACT:

Freedom of Contract is the opposite of Judicial Paternalism.

Contract (according to Wacks): A Classical Liability Rule View

Agreements are an indispensable element of social life.
When you agree to meet me for a drink, borrow a book, or give me a lift to work, we have entered into an agreement.
However, the law will not compel you to turn up at the bar, return my book, or pick me up in your car.

Why the Need for Contract Law?

These social arrangements, while their breach may cause considerable inconvenience, distress, and even expense, fall short of a contract as understood by most legal systems.
Remission.
Two theories help distinguish social arrangements from law: (i) Doctrine of Consideration (ii) Concept of Detrimental Reliance.

Freedom of Contract:

One of the hallmarks of a free society is the autonomy it affords its members to strike the bargains of their choice, provided they do not harm others.

y do not harm others.