The Dictatorship of Doctors

Legalism is not a term immediately associated with Portugal. Relegated as it now is to backwater status in the European arrangement, Portugal is not a country most would expect to have achieved its present borders through meticulous formalizations by royal charter of small-scale land appropriations under mobile bands of knights-errant engaged in the Reconquista. These presúrias grew into noble estates or municipalities, which were granted forais, emphasizing codified rights and obligations, fostering a culture of contractual governance. This matured into a sophisticated legal apparatus during the Age of Discovery backed by religious fervor, earning exclusive rights for navigation and trade from papal bulls, extending the realm of jurisdiction from land to sea. Discovery and occupation created prescriptive rights, turning entire swathes of water such as the Indian Ocean into regulated domains where the cartaz license and the quinto (royal fifth) enforced the monopoly of the Crown in the Mare Clausum, the Closed Sea between Portuguese Hormuz and Malacca. It was precisely this concept and de jure stranglehold that Hugo Grotius responded to with his assertion of Mare Liberum, for the benefit of his ascendant patria, Holland, setting the precedent for the development of a truly planetary horizon of maritime law, and so the modern law of the sea began as a rebuttal of Lisbon.

At home the same instinct produced the Mesa da Consciência e Ordens (Board of Conscience and Orders), established in 1532 by King João III as a royal tribunal composed of lay jurists and officials given oversight of Church-related affairs. In 1551, the Mesa took over the administration of the once-famed Orders of Christ, Aviz, and Santiago, now integrated into one as a royal department within the Padroado (regalist) system. Rome’s authority on ecclesial matters in the empire was consigned to mere confirmation of its spiritual primacy. Until 1790, the Board governed the University of Coimbra, which, like the other ancient universities of Europe such as the Sorbonne and Oxford, possessed a quasi-magisterial authority in ecclesial matters. Catholic spirituality and institutions lending moral authority to a secular-legal order embody a pragmatic Portuguese synthesis that endured until the Carnation Revolution in 1974.

But this all raises the question: whatever happened to that self-conscious class of public law professors who governed the country? A discussion with an old acquaintance and a fellow “Tuga” patriot on the ground produced an interesting recommendation that promised answers: Oscar Ferreira’s L’Universitaire au pouvoir. Le discours juridique du professorat salazariste (1926–1974), published in 2023 by Classiques Garnier as part of its “Histoire du droit” series. The French-language monograph, spanning a hefty 570 pages, delves into the intricate web of legal discourse crafted by Portuguese law professors before and during the Estado Novo (New State) under António de Oliveira Salazar, which he himself referred to as the “dictatorship of doctors.” Ferreira, a full professor at the University of Burgundy in Dijon, brings his expertise in legal history and comparative law to bear on this understudied facet of the Portuguese regime. The book posits that the Estado Novo legal doctrine was not merely a veneer on military rule nor a mere instrument of it but a coherent, anti-parliamentary theory of the state, elaborated by a self-conscious academic caste that survived the regime it built and was quietly channeled into the democratic order that replaced it. It was, in the author’s own words, a cathedocracy, a portmanteau of cathedra, the professor’s chair, and kratos, power. Professor catedrático is the Lusophone equivalent of full professor. The term has gained currency in French historiography of the Portuguese regime since the release of the book, a testament to Ferreira’s depth of research. The author focuses particularly on the cadre from Coimbra and later Lisbon also, which justified the 1926 military coup d’état before rallying behind one of their own and constructing a sophisticated counter-revolutionary legal apparatus.

Largely from the generation born in the 1880s and 1890s, the professoriate naturally originated from the Faculty of Law of the University of Coimbra, which held a monopoly on legal education in Portugal until 1911. This generation was influenced by the political intellectuals of Action Française and dealt with the same questions raised by the French thinkers on the crisis of the state, or the effect of the degeneration of traditional political constitutions on social structure. The resurgence of legal Thomism became relevant as a reaction to the developments of 1910, when Portugal’s monarchy was abolished to make way for the First Republic on French lines, and to the legal positivism emanating from sections of Coimbra’s faculty that formulated the new Republican constitution. In the opening chapter, “Morality and Political Law: Conceptualizing Total Constitutionalism,” Ferreira dissects how the professoriate came to propose the wider integration of social forces into the organism of the state while retaining the constitutional heritage bestowed on it by the historic monarchy. For instance, Salazar’s own writings, rooted in his Coimbra lectures on finance and economics, evolved into a juridical vision of the state as a moral entity, countering the “ochlocracy” (rule by the mob) of republicanism that preceded the 1926 coup. One quotation that stands out is from a particularly respected doyen of the class, the historian and legal philosopher Luís Cabral de Moncada: every Portuguese person was to become, “without even knowing it, a little Thomas Aquinas”—a deliberate riff on the famous German phrase that every German carries within him a little Kant. This section highlights the professors’ anti-parliamentary stance, portraying the 1933 Constitution as a “total” framework that integrated Catholic social doctrine, inspired by papal encyclicals like Rerum Novarum and Quadragesimo Anno.

The subsequent chapter, “Social Regulation Ensured by Corporative Law: Corporatism Against Ochlocracy,” elucidates how social regulation, in the form of corporatism, became the regime’s economic and social linchpin. When, in 1938, Salazar declared, “We have established a popular regime, but not a government of the masses, influenced or directed by them,” he captured the specific conception of a total political society oriented toward the preservation of the divine essence in man for the ultimate end—not, as in the Dieu État of the Fascist neo-Hegelianism of Giovanni Gentile, a society whose end was the state. They called the Italian doctrine “supra-personalist” and rejected it.

Corporative law was the acme of this state as paternal regulator, envisioned not as an annex of political economy as in the rest of Europe, but rather as an intermediate law transcending the fundamental division of public and private law, or, as Ferreira puts it succinctly, “to achieve reconciliation between an overly all-consuming public law and an overly destructive private law.” Key examples include the National Labor Statute of 1933, which professors like Marcelo Caetano (who would succeed an ailing Salazar in 1968) defended as a state-mediated bulwark against the corrosive forces of communism and liberalism on the moral and social order. When, in light of the Second World War, Jacques Maritain began to articulate a reconciliation between Thomistic natural law and liberal democracy—a course that had begun with his distancing from Action Française and grew into a disillusionment with Salazar and a simultaneous affinity for America—the cathedocrats naturally drew swords in defense of the classical understanding of Catholic political thought in what became a schism within the Thomist intelligentsia. Maritain engaged not only with his Portuguese neo-Scholastic contemporaries but also with Portugal’s Thomistic heritage, through a recrudescence of the legacy of the sixteenth-century scholastic John of St. Thomas and a re-evaluation of Francisco Suárez, himself cathedral professor of theology at Coimbra as far back as 1597. Cabral de Moncada’s 1943 pamphlet, concisely titled “Universalism and Individualism in the Concept of State of Aquinas,” emphasized the orthodox conception where constitutionalism tethers the rulers but total corporatism tethers the demands of the amorphous masses for subjective rights, regarded as licentious, which would no longer respect the foundation of human communities like family or corporation. Defenses like these, or those of regime-associated intellectuals like João Ameal, were argued to be perfectly in line with the naturalist conceptual apparatus of St. Thomas in positing natural and supernatural realms with autonomous intrinsic norms, which legitimizes moral legislation to build a natural communitas perfecta.

The second part of the book, titled “Uriel Among Men” and subtitled “A Propaedeutic to the Exercise and Defense of Human Rights and Christian Values,” reinforces precisely the envisioned role of the New State as assuming the mantle of an archangel, but the focus now branches into administrative and penal law. The precise definition of the former is provided by Domingos Fezas Vital, cathedral professor at Coimbra, lecturer in law at Lisbon, and then president of the Corporative Chamber, as “the law regulating the exercise of public power.” Exceptionally, this field was developed more extensively by Lisbon scholars than by those from Coimbra; Marcelo Caetano was its leading figure and the principal drafter of the Administrative Codes of 1936 and 1940. Ferreira uses these to argue against the notion that administrative law under the regime was arbitrary, but he does not shy away from asserting its use as a sophisticated mechanism for discretionary governance. Notably, the author does not take the easy route of equating the regime with contemporary Italy, but rather draws parallels to the plebiscitary Caesarism of Napoleon III. Resolving debates on jurisdictional organization allowed for the theoretical establishment of laws against abuses by the legislature itself. It is noted here that the authoritarianism of Louis-Napoleon and the Estado Novo standardized administrative norms enforced by the courts through legitimation by compelling public acceptance. Popular, but not of the masses.

The final chapter, “Monitoring and Healing: Criminal Law and the Moral Stimulation of the Social Body from the Perspective of Salvation,” is the work’s most innovative component, as it contains a thorough examination of then-contemporary penology. The regime espoused, unusually for its time, a therapeutic rather than retributive view of punishment. The author quotes the French legal expert Pierre Cannat:

We have seen the Portuguese gradually implement a penitentiary reform that certainly testifies to a penal doctrine . . . To the classical conception, they oppose a more spiritual notion of the treatment of the guilty.

Analyses of theories by professors like José Beleza dos Santos and the aforementioned Fezas Vital demonstrate the unique blending of criminology with theology. The former’s particular emphasis on indeterminate sentences and reformatories is highlighted. Continued doctrinal engagement with Thomism, such as the reception of Romano Guardini’s bioethics in view of the concept of right by Manuel Duarte Gomes da Silva in a 1964 essay for the Lisbon Law Faculty Review, also illustrates this. Further noted is the influence of Portuguese legal theory on French legislation both in Vichy and after the Liberation, such as the 1945 Amor reform for penitentiary reform. Where the author sees a disjunction from the penal humanism is that the same discourse justified the repressive apparatus of the PIDE (Polícia Internacional e de Defesa do Estado), the secret police, and the tendency toward “carceral despotism” in which communists and later African nationalists were excluded from social life, often in camps like Tarrafal.

The book has one weakness, and it is methodological. Ferreira’s methodology is discourse analysis: legal texts are read for the power relations they construct, and the state emerges as an institutional integration of additive relations of power. A deconstructive framework that implies this state, or any, is a mere institutional integration of additive power relations fails to account for qualitative hierarchies as anthropological constants. But Ferreira is clear that the professors understood the via coactiva/via directiva legal distinction and did not seek merely to instrumentalize the capacity of doctrine but saw themselves as scientific authorities reading the norms of nature and preserving eternal laws. The concluding sections contain a substantial bibliography and indices for practical reference, which demonstrate the extraordinary undertaking on Ferreira’s part.

But what of the fate of this elite? Necessarily, when assessing the legal history of the regime, there will be a reference to what succeeded it. In the second chapter Ferreira evokes the criticism, by Afonso Rodrigues Queiró of the second generation of cathedocrats, of the Constitution of April 1976, which formalized the regime change of the Carnation Revolution. For Queiró, it was not the establishment of a democratic state that was impermissible, but rather that the conformation of its pouvoir constituant relied on majoritarian presuppositions that made it indubitably sectarian and “ephemeral by nature.” The point is decidedly anti-Rousseauan and authoritative when it comes to the opinion of this class on the discontinuity of legal tradition. It is worth mentioning that later Salazarist administrators and public law professors only found a political home in the new regime in the bosom of the Centro Democrático Social (CDS).

The regime under Caetano, advertising its program as “Evolution in Continuity,” was undergoing liberalization and modernization, heralded by the 1971 constitutional reforms, deemed necessary by technocrats aligned with “Marcelismo” on questions of economics and federalization. But owing to the personal weaknesses of the man, who failed to confront hardliners and thus alienated the reformists, who failed to stand up to the Americans when they pestered him for refueling rights for delivering aid to Israel during the 1973 Arab–Israeli war, and who failed to assuage junior officers on the front line in Africa, the new benign vision was doomed. Arab oil producers slapped an especially damaging embargo on Portugal, and resentment in an already radicalized military led to the silent coup, which produced great turmoil in its aftermath. Salazar would certainly not have suffered such humiliation; he fiercely kept America at arm’s length on the issue of basing rights after the Suez Crisis and the shift in American policy against Portugal in Africa, asserting European interest and cozying up to de Gaulle’s Fifth Republic, another state with a democratic framework and an unusually powerful adjunct secret service (SDECE.) Caetano suffered ignominy, but the backlash to the communist violence and nationalizations during the Verão Quente (Hot Summer) of 1975 from the traditionalist and entrepreneurial north and moderate socialists promised restoration of some normalcy and rehabilitation of reformist regime elements.

The new constitution was clearly written in red ink and enshrined a mandatory aim to transition gradually to socialism. The only deputies in the Assembly who did not vote for its ratification were the sixteen from the Centro Democrático Social, to the jeers of “reactionaries” from the rest of the chamber. A survey of founders and early leaders of the party lays this bare, prominently Diogo Freitas do Amaral, a cathedocratic professor at Lisbon, and Adriano Moreira, also from the Lisbon law faculty and once the overseas minister under Salazar and touted as a possible successor. That Ferreira recognizes that this class of professors has not suffered a damnatio memoriae in the way the regime itself has in establishment circles is proof enough that the legalist elements and their tradition underwent a democratic re-channeling. But to what effect? The CDS has survived only in alliance with the larger Partido Social Democrata (PSD), as the junior and more right-wing partner in coalitions of convenience, rewarded from time to time with a significant ministry. Its leader, Nuno Melo, at the time of writing, is minister of national defense. It has also remained Euroskeptic and restrictive on immigration longer than its Christian democratic counterparts elsewhere in Western Europe. But the rapid rise of a populist alternative in Chega (itself a PSD breakaway) has eroded its base of support, probably terminally. Should the threadbare European arrangement to which Portugal’s elites have committed so much of their energies ever falter, the refinement and legal nous of this moribund class will be missed; Ferreira has at least ensured that it will be remembered.