Bazele constituționale ale ordinii publice
Constitutional Bases of Public Order

Author(s): Iulian Nedelcu
Subject(s): Law, Constitution, Jurisprudence, Administrative Law
Published by: Universul Juridic
Keywords: principle of proportionality; public administration; public order; fundamental rights and freedoms; positive law;
Summary/Abstract: The public administration through coercion and through the administrative police intervenes to avoid disturbances to public order, to maintain social discipline. But it is not simply a matter of the order necessary for the functioning of any community, whatever it may be. It is a finalized, bound order, as shown in French doctrine1 of the construction of the liberal state. Not of a totalitarian order, of an order for order, but of an indispensable order to guarantee the rights, to defend the freedoms proclaimed in the Declaration of Human Rights and especially in the constitutions of the democratic states. Therefore, public order is a valuable constitutional objective. Public order can be general or special. The general public order corresponds to a minimum of conditions that appear as indispensable to guarantee the exercise of fundamental freedoms and rights. Therefore, related to the primary function of the public authority, the general public order can and must be ensured by it, even outside any express authorization. But its content retains a contingent and relative character, which varies according to social situations and conceptions; released, in the absence of texts that are never necessary in this field, of jurisprudence. Currently, in positive law, four purposes of public order can be identified: security, sanitation, peace and a certain form of public morality. The first three, which deal with good material order, are moreover expressly enshrined in the legislation on the activities of public administration authorities.

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