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As well as consolidating LMJ’s position as a commentator on jurisprudence, the work was also crucial in systemizing his views as a historian, since he prefaced his Commentary with a brief history of Portuguese law, and complemented it with repeated references to the comparative history of European legislations, taken to be a powerful way of examining juridical topics. In LMJ’s view, “all legislation has a historical and philosophical element; it was for this reason that to theoretical and philosophical development of doctrines we added ancient native and Roman law, as well as the provisions of modern codes, for the undeniable convenience of being able to compare their provisions with those of our own law” (Comentário ao Código Penal Português, p. vi).
By going back to the Visigoths, the Lusitanians, and the Romans, LMJ argued that, as in Humanity, so in Law there could be applied the idea of a poetic age, of ignorance and barbarity, during which instinct outweighed reason and imagination outweighed intelligence. In these periods, justice was understood as a subjective practice, with the true foundation of its legitimacy, accompanied by a rehabilitation of human nature, being developed only in the eighteenth century, the historical stage for the total reform of penal justice. Claiming a clear link with an Enlightenment heritage, LMJ attributes the structuring of bases of the law of punishment and the defining of its boundaries to Voltaire (1694–1778), Rousseau (1712–1778), Beccaria (1738–1794) and Brissot (1754–1793), among others, crediting the French Revolution with the overthrow of the old institutions and the conclusion of the reform of philosophy. These thinkers and these events had triggered reform all across Europe.
LMJ’s work on the Penal Code also resulted in the publication of the important Report on the new project for it, delivered to the government in 1861, which turned it into a bill and presented it to the Cortes in January 1862. This project (which became known as the “Penal Code of D. Pedro V”) had a fundamental influence on the reform law of 1 July 1867, which abolished in Portugal the death penalty for civil crimes and forced labour, resulting in the introduction of a model of cellular imprisonment, on the penitentiary system, and in a wider sense of corrective penal law.
