"Public order" as grounds for precautionary detention

a jurisprudential view

Abstract

This study seeks, through jurisprudential analysis, to identify a concept for the expression "public order" contained in article 312 of the Code of Criminal Procedure, attempting to stratify it spatially and temporally and verifying the role of the Federal Supreme Court in this framework. By examining court decisions since the enactment of the Code, distinguishing jurisprudence, understood as a body of cohesively upheld values, from mere isolated decisions, only faint approximations of the concept are found, linked to notions of trust in the judiciary, application of criminal law, dangerousness, seriousness of the offense and public outcry, besides a single negative parameter concerning civil debts. It is concluded that, after fifty years of the Code's validity, the courts have not built value-based guidelines to delimit public order, the theme remaining subject to arbitrariness, which should serve as a warning to the legislator regarding the adoption of empty expressions in precautionary measures.