The justification of preventive detention and some frequent criticisms

Abstract

This paper analyses the justification of the normative premise in judicial decisions applied to preventive detention and examines some frequent criticisms. For this purpose, it firstly reconstructs the dominant doctrinal conception of preventive detention, which some refer to as 'precautionary conception'. Further, it shows that the normative premises on which judges base their decisions embrace this doctrinal conception, which is confirmed in a number of procedural arrangements that in many other aspects are very heterogeneous. Subsequently, it presents some doctrinal criticisms that claim the illegitimacy of this conception of preventive detention.