Alfonsine Ordinances

The Alfonsine Ordinances (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).

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

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. To rectify this confusion at least in part, John I of Portugal (r.1385–1433) ordered with a carta régia[pt], dated 18April 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. With this declaration, JohnI 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.

To rectify this, JohnI later commissioned the first systematic compilation, reformulation and updating 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. After a revision of the compilation by a commission, the work was completed in July 1446 and given to King AfonsoV, who had succeed JohnI and Edward as king of Portugal. Despite lending the ordinances its name, King AfosoV 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.

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. Their diffusion into Portugal proved, however, difficult, as they were completed before the invention of the printing press.

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

Content

General content and structure

Legal scholars consider the Alfonsine Ordinances to be the first codification of Portuguese law and the foundation for its development for centuries afterwards. 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. 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. The structuring of the Ordinances into five books might have been influenced by the 1234 Decretals of Gregory IX.

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.

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. 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 (bookII, title9). 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 (bookII, title9).

Restrictions on Jews and Muslims

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: bookII, title86; for Muslims: bookII, title103). Other examples were that Jews were generally not allowed inside the house of a Christian woman when her husband was absent (bookII, title67), and when Jews or Muslims disguised their identity "with the intention of sinning with Christian women" they would be punished by enslavement (bookV, titles25 and 26).

Preservation and editions

Manuscripts

The original manuscript of the Alfonsine Ordinances, which was deposited in the royal chancery, is lost. It is presumed that it must have been deliberately discarded as "useless" after a calligraphic Leitura Nova copy was done in the early 16th century.

However, seven direct copies done by hand survive that were made shortly after promulgation, probably all in the third quarter of the 15th century; none of those complete. An eighth manuscript, made in the first half of the 16th century, completes the set, with later copies providing no further insight. The manuscripts, which were given a siglum in the 1984 edition, are:

Printing

The edition of 1792

The Alfonsine Ordinances were never printed while in force. Their first printing under the title Ordenaçoens do Senhor Rey D. Affonso V. was done in 1792 by the University of Coimbra as a part of the Collecção da Legislação Antiga e Moderna do Reino de Portugal, established by a royal resolution dated 2 September 1786. The exclusive right to print the Ordinances, which had belonged to the Monastery of São Vicente de Fora, had beforehand passed to the University by a royal charter dated 16 December 1773. The editor of the 1792edition was Luís Joaquim Correia da Silva.

As a basis for booksI, II, IV and V of this edition the manuscript TT/CP was chosen because it was considered to be most accurate and least incomplete. For bookIII, however, the editor used manuscript TT/LN as its basis. Although it was the original intent of the edition to preserve the archaic and inconsistent spelling and grammar of the manuscripts, the edition in the end included modifications to both while preserving the content faithfully.

• Collecçaõ de legislaçaõ antiga e moderna do reino de Portugal. Parte I. Da legislaçaõ antiga (in Portuguese). Coimbra: University of Coimbra. 1792. OCLC.

The 1984 reprint

In 1984, the Calouste Gulbenkian Foundation produced a facsimile edition of the 1792edition, accompanied by new introductory matter surveying the surviving manuscripts and assessing the quality of the 1792text. Before the production of the 1984 reprint a new, critical edition was considered as an alternative, but rejected as too slow and costly.

• (PDF) (in Portuguese). Vol.I. Lisbon: Calouste Gulbenkian Foundation. 1984.
• (PDF) (in Portuguese). Vol.II. Lisbon: Calouste Gulbenkian Foundation. 1984.
• (PDF) (in Portuguese). Vol.III. Lisbon: Calouste Gulbenkian Foundation. 1984.
• (PDF) (in Portuguese). Vol.IV. Lisbon: Calouste Gulbenkian Foundation. 1984.
• (PDF) (in Portuguese). Vol.V. Lisbon: Calouste Gulbenkian Foundation. 1984.

Citations

Sources

• Almeida Costa, Mário Júlio de (1984). "Nota de apresentação". (PDF) (in Portuguese). Vol.I (Facsimileed.). Lisbon: Fundação Calouste Gulbenkian. pp.5–11.
• Borges Nunes, Eduardo (1984). "Os manuscritos das Ordenações afonsinas e a edição de 1792". (PDF) (in Portuguese). Vol.I (Facsimileed.). Lisbon: Calouste Gulbenkian Foundation. pp.13–23.{{cite book}}: CS1 maint: ref duplicates default (link)
• Campbell, Gordon (2005). "Alfonsine ordinances or (Portuguese) Ordenações Afonsinas". The Oxford Dictionary of the Renaissance. Oxford University Press. doi:. ISBN9780198601753.
• Castillejo, Jean-Pierre (2024). (PhD thesis). Universidade Aberta. hdl:.
• Disney, Anthony R. (2009). A History of Portugal and the Portuguese Empire. Vol.1. Cambridge University Press. doi:. ISBN978-0-521-60397-3.
• Herzog, Benjamin (2014). Anwendung und Auslegung von Recht in Portugal und Brasilien [Application and Interpretation of the Law in Portugal and Brazil. A Comparative Legal Examination from a Genetic, Functional and Post-modern Perspective]. Rechtsvergleichung und Rechtsvereinheitlichung (in German). Vol.26. Mohr Siebeck. doi:. ISBN978-3-16-160932-9.
• Schmidt, Jan Peter (2009). Zivilrechtskodifikation in Brasilien: Zivilrechtskodifikation in Brasilien [The Codification of Private Law in Brazil. Structural Issues and Regulatory Problems from a Historical and Comparative Perspective]. Studien zum ausländischen und internationalen Privatrecht (in German). Vol.226. Mohr Siebeck. doi:. ISBN978-3-16-151411-1.
• Soyer, François (2007). . Brill. doi:. ISBN978-90-04-16262-4.

Further reading

• Costa, Mário Júlio de Almeida (2019). "Ordenações Afonsinas". História do Direito Português (in Portuguese) (5ed.). pp.305–312. ISBN978-989-40-0058-7.
• Domingues, José (2008). . Ventos da História (in Portuguese). Sintra: Zéfiro. ISBN978-972-8958-66-4.
• Domingues, José; Pinto, Pedro (2017). "A fragment of the Reforma das Ordenações de D. Afonso V". Tijdschrift voor Rechtsgeschiedenis. 85 (3–4): 522–539. doi:.

External links

• Media related toAfonsine Ordinancesat Wikimedia Commons
• . University of Coimbra. Archived from on 28 February 2021. The text of the Alfonsinas Ordinances.