The Presence of Discricionarity with Legal Interpretation: The Lack of Space of Public Claim in Criminal Matters in Risk Societies

This article is a result of total disrepute with the substantial alteration of the dogmatic concepts inherent in criminal matters, which distort its primary mission, which is the minimum intervention. Fundamentals inherent in public outcry that alone justify pre-trial detention go directly against the precautionary principle in the risk society. The legislative abyss in which the term “public order”, inserted in art. 312 of the Brazilian Criminal Process Code, has long been synonymous with a prison arrest warrant, although it may prove to be incompatible with criminal procedural protection.
The great gap is in the absence of a control under the judicial decisions, which are based on subjectivism, without observing the real objective of criminal law, which is not the general security, but the imputation of a fact punishable to a person by limits imposed by established constitutional principles. Key words: risk society – judicial interpretation – justification – criminal law.