An employee slips on a wet floor in a warehouse. To determine if the employer has committed a fault, the judge can compare their behavior to that of a “normally diligent” employer or examine what this specific employer could reasonably have done in this particular situation. This choice of method, far from being theoretical, changes the direction of the trial and its outcome.
Civil Fault: The Choice of Reference Model Changes Everything
When discussing in abstracto assessment, the disputed behavior is compared to that of a reasonable person placed in the same general conditions. The judge does not consider the personal abilities of the author of the damage. They construct a model-type, a standard, and measure the gap between this standard and the actual conduct.
The in concreto assessment proceeds in the opposite manner: the judge takes into account the age, gender, health status, technical skills, and all the particular circumstances of the person involved. A ruling from the Nîmes Court of Appeal illustrates this mechanism in terms of compensation for violence, where the judge considered the victim’s actual loss of income and personal condition to determine the compensation.
To delve deeper into legal assessment in abstracto and in concreto, it is beneficial to examine how these two modes are articulated in daily judicial practice rather than in textbooks.
The distinction has direct consequences on the evidence to be provided. In in abstracto mode, the claimant must demonstrate that the defendant deviated from the expected behavior of a “normally prudent and diligent” person. In in concreto mode, it is necessary to produce elements regarding the individual situation: medical certificates, job descriptions, professional history.
In Abstracto and In Concreto Assessment in Criminal Law: An Often Ignored Role
This distinction is spontaneously associated with civil law. Criminal law, framed by the principle of legality of offenses and penalties, seems to exclude any value judgment on individual behavior. The reality is more nuanced.
A thesis defended at the University of Bordeaux (Valérie Malabat, supervised by Philippe Conte) has shown that in abstracto and in concreto assessment fulfills a dual role in criminal law. On one hand, these methods serve to evaluate the consequences of an act on the victim, and thus the threshold of criminal protection granted. On the other hand, they allow for determining whether the behavior of the offender, although prohibited by a text, remains reprehensible given particular circumstances (justifying facts, for example).
In practical terms, this means that two reference models coexist:
- An average model, used to measure the severity of the harm suffered by the victim (in abstracto)
- An individualized model, mobilized to assess the reprehensibility of the author’s conduct while considering their personal situation (in concreto)
- A combination of both, frequent in unintentional offenses where the judge evaluates both the foreseeability of the damage and the actual diligence of the author
This duality allows the criminal judge not to apply a text mechanically without considering the facts. We are far from the image of a purely automatic criminal law.
Proportionality Control: The Distinction as a Recent Methodological Tool
Since the mid-2010s, the Court of Cassation and the Council of State have systematized a new use of the in abstracto / in concreto distinction, this time within the framework of proportionality control in light of the European Convention on Human Rights.
The in abstracto control consists of verifying whether a norm, taken in its generality, is compatible with the requirements of the Convention. The in concreto control goes further: it examines whether the application of this norm to the specific case of the applicant produces a disproportionate result.
Work from the Law Theory Laboratory at Aix-Marseille University highlights that this distinction now functions as an autonomous methodological tool for French judges, particularly in administrative police and disciplinary sanction disputes. The judge no longer merely checks the conformity of a text: they confront its effects with the individual situation of the litigant.
On the ground, this changes the way a case is constructed. For a lawyer, arguing disproportionality in concreto requires very precise documentation of the client’s personal situation (family life, health status, economic consequences of the contested measure). The burden of proof becomes much heavier, but the chances of success increase when the case is solid.
Vague Notions and Legal Standards: Where the Assessment Method Swings the Decision
Fault, force majeure, hidden defects, legitimate belief, significant imbalance, foreseeability of damage: all these notions are legal “standards.” They require the judge to compare a behavior or situation to a reference model to determine whether this behavior is normal or not.
The choice between in abstracto and in concreto is not left to chance. It depends on:
- The legal matter (consumer law tends towards in abstracto to protect the average consumer, labor law often uses in concreto to take individual vulnerabilities into account)
- The nature of the standard in question (force majeure is generally assessed in abstracto, error regarding substantial qualities is more often assessed in concreto)
- The evolution of case law, which can shift a standard from one mode of assessment to another over several decades
What makes the distinction operational on a daily basis is its ability to guide litigation strategy. The chosen mode of assessment determines the documents to be produced and the arguments to be developed. A litigant who ignores this mechanism risks constructing a case that misses the question the judge is actually asking.
The boundary between the two approaches remains sometimes blurry in practice, and feedback on this point varies according to chambers and jurisdictions. The judge frequently combines both methods rather than choosing just one, adjusting the slider according to the nature of the dispute and the quality of the evidence produced. Knowing where to place this slider in a concrete case is precisely what distinguishes an effective legal argument from an abstract demonstration that has no bearing on the decision.