The pale shade of legality: the resilience of arbitrary criminal iudicia after the era of revolutions − the Portuguese case

Abstract

The most common historiographical narrative stresses the importance of liberal revolutions in the evolution of both criminal policy and criminal law—under the old regime, harshness and arbitrariness; after the revolution, humanitarianism and legality. Both assessments are seemingly mistaken—at least for southern European countries. Grace and mercy—a crucial element of royal rule and the proper judicial enforcement of law—moderated the ruthlessness of formal law. While judges were invited to temper the rigor legis with the merciful tuning of general legal provisions according to the doctrinal standards of an exquisite casuistic equity, during the 19th century personal security against arbitrary criminal prosecution was considered a basic pillar of liberalism. However, criminal policy largely reduced the range of formal (legal-judicial) criminal penalties, leading to a harsh and socially biased police practice in the handling of common criminality. With the exception of France, criminal codification only expanded by the mid-19th century; thereafter, criminal doctrine combined references to formal law with philosophical, political and even literary, ingredients, reshaping legality according to a romantic concept of immanent law.