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Alfonsine Ordinances

The Alfonsine Ordinances[1] (Portuguese: Ordenações Afonsinas) were a complete restatement of Portuguese law, enacted in 1446 or 1447 during the reign of the Portuguese King Afonso V (r. 1438–1477).

Alfonsine Ordinances
Afonso V of Portugal
Territorial extentPortuguese Empire
Enacted byAfonso V of Portugal
Enacted1446 or 1447
Repealed1521
Repealed by
Manueline Ordinances
Status: Repealed

The five books of the Ordinances were the first codification of Portuguese law and established a legal hierarchy between Portuguese royal laws, Roman law and Canon law.

In 1521, they were succeeded by the Manueline Ordinances (Ordenações Manuelinas) of Manuel I.

History

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In the beginning of the 15th century, Portuguese law was in a state of confusion, even the courts were unsure which royal laws were still valid and should be applied to a case. Furthermore, the legal hierarchy between these royal laws and Roman and Canon law was unclear.[2] To rectify this confusion at least in part, John I of Portugal (r. 1385–1433) ordered with a carta régia [pt], dated 18 April 1426, what counted as "Roman law" before Portuguese courts. He decreed that Roman law as stated in the Corpus Iuris Civilis should be applied and, when it contained no answer to the issue in question, the annotations on the Corpus Iuris Civilis contained in the glossa ordinaria by Accursius should be used. When even the glossa ordinaria was of no help, the commentary on the Corpus Iuris Civilis by Bartolus was to be given precedence.[2] With this declaration, John I only clarified how the secondarily applicable Roman law was to be understood; he did not clarify the legal hierarchy between royal Portuguese, Canon and Roman law.[3]

To rectify this, John I later commissioned the first systematic compilation, reformulation and updating[4] of the primarily applicable Portuguese law. This commission was given to João Mendes (the corregador da corte) and, after Mendes death, to Rui Fernandes [pt], who finished it on 28 July 1446.[3] After a revision of the compilation by a commission, the work was completed in July 1446 and given to King Afonso V, who had succeed John I and Edward as king of Portugal.[5] Despite lending the ordinances its name, King Afoso V had little influence on them as they were completed during his minority – he was born in 1432 – and the regency of his uncle Peter, the Duke of Coimbra.[6]

Due to a court document of August 1447, which references the Alfonsine Ordinances, legal scholars assume that they entered into force at the end of 1446 or the beginning of 1447.[5] Their diffusion into Portugal proved, however, difficult, as they were completed before the invention of the printing press.[6]

In 1521, the Alfonsine Ordinances were succeeded by the Manueline Ordinances (Ordenações Manuelinas) named after King Manuel I.[7][1]

Content

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General content and structure

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Legal scholars consider the Alfonsine Ordinances to be the first codification of Portuguese law and the foundation for its development for centuries afterwards.[5][8] They were, however, far from being a complete system of law and scholars speculate that only the Chancelaria Régia [pt] had a complete set of all five books of the Ordinances.[9] Its sources were the royal Portuguese laws, Canon law, the case law of the higher courts of Portugal, the Siete Partidas, Roman law and local customs.[4] The structuring of the Ordinances into five books might have been influenced by the 1234 Decretals of Gregory IX.[4]

The first book of the Alfonsine Ordinances considers the state and its administration. The second book deals with the rights of the Catholic Church, the King and the nobility. The third book contains the rules of civil procedure, while the fourth book states the substantive private law. The final fifth book considers criminal law and procedure.[4]

An important clarification of the Alfonsine Ordinances was the establishment of a clear legal hierarchy in Portuguese law: Firstly, the royal Portuguese laws were supreme. When they contained no answer, a distinction was made between temporal (de ordem temporal) and spiritual questions (de ordem espíritual). In case of the former, Roman law was to be applied, while in case of the later, Canon law was applicable.[9] An exception was, however, stated in the case of "sinful results": If the application of Roman law resulted in resultados pecados (sinful results) than Canon law was again applicable (book II, title 9).[9] Roman law was to be applied according to the glossa ordinaria of Accursius and the opinion of Bartolus. If even these authorities did not help to solve the case than the King himself should decide it (book II, title 9).[9]

Restrictions on Jews and Muslims

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The Alfonsine Ordinances contained special restrictions for Jews and Muslims, for example forcing them to wear a distinctive symbol or badge on their clothing (for Jews: book II, title 86; for Muslims: book II, title 103).[10][11] Other examples were that Jews were generally not allowed inside the house of a Christian woman when her husband was absent (book II, title 67), and when Jews or Muslims disguised their identity "with the intention of sinning with Christian women" they would be punished by enslavement (book V, titles 25 and 26).[12]

Preservation and Editions

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The original of the Ordinances is long lost.

We do, however, have seven more-or-less contemporary copies made and distributed later in the 15th century, although none are complete. From among them we have 3 copies of Book I (plus 1 partial copy), 4 copies of Book II, 1 copy of Book III, 3 copies of Book IV, and 2 copies of Book V. Not all the copies are of equal quality, as they were all produced by hand, and not all copyists were equally skilled and/or attentive. It is Book III that is in the worst state of preservation, since we have only one from the period and it is not of the best quality.

In addition to the 15th century copies, we also have an (also incomplete) 16th century copy, which is important largely because it gives us the only other copy we have of Book III, even if it, like that of the 15th century, is also not of the best quality, and additionally affected by language changes in the interim, reducing its value. [13]

None of the 15th or 16th century copies were printed, although the means were available through the then newly-invented Gutenberg Press.

After the Afonsine Ordinances were supplanted in 1512 by the Manueline Ordinances, the expected value of printing the now-obsolete Afonsine Ordinances (or even maintaining the inventory of hand-written copies) was drastically reduced.

It was only centuries later, in 1792, that the Crown, as part of an effort of documenting the laws of Portugal, past and present, that the first printing of the Afonsine Ordinances was undertaken. This effort was complicated by the fact that the loss of copies noted above had already taken place, so the editors of the 1792 edition had no better sources than we do today. Although it was the original intent of the editors to preserve the archaic (and inconsistent) spelling, and (lack of) capitalization and punctuation common to old hand-written manuscripts, the editors in the end reversed themselves, and their version included modifications to all of those attributes. While this does not harm study of the contents, it does destroy any paleographic value of the 1792 edition. [14] This edition does have new material not in the originals in the form of an introduction giving a history of the Ordinances: their creation, use, and eventual replacement.

In 1984, the Calouste Gulbenkian Foundation produced a re-print of the 1792 edition, which had become rare, with additional introductory material on the state of the manuscripts. While a new, critical edition was considered as an alternative to a re-print of the 1792 edition, such an effort required more resources than were available at that time. [15]

References

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Citations

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  1. 1 2 Campbell 2005.
  2. 1 2 Herzog 2014, p. 256.
  3. 1 2 Herzog 2014, pp. 256–257.
  4. 1 2 3 4 Schmidt 2009, p. 5.
  5. 1 2 3 Herzog 2014, p. 257.
  6. 1 2 Disney 2009, p. 138.
  7. ↑ Herzog 2014, p. 6.
  8. ↑ Schmidt 2009, p. 6.
  9. 1 2 3 4 Herzog 2014, p. 258.
  10. ↑ Soyer 2007, pp. 65–66.
  11. ↑ Castillejo 2024, pp. 273–274.
  12. ↑ Soyer 2007, pp. 61–62.
  13. ↑ Ordenações afonsinas, 1984, Vol. 1, pp. 13-18
  14. ↑ Ordenações afonsinas, 1984, Vol. 1, pp. 19-22
  15. ↑ Ordenações afonsinas, 1984, Vol. 1, pp. 22-23

Sources

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Further reading

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