Le général et le particulier. Perspective analytique et praxéologique sur la règle de droit

• Main Author: Baudouin Dupret
• Format: Article
• Language: fra
• Published: ENS Éditions 2018-07-01
• Series: Tracés
• Subjects: legal rule; characters of the legal rule; jurisprudence; praxeology of law; legal practices; Islam in France
• Online Access: http://journals.openedition.org/traces/7916

The legal vulgate holds generality as constitutive of the rule. This widely repeated and sometimes criticized definition refers to the formal properties of the rule and not to the rule as it is formulated, read and applied in the concreteness of its practices. The article intends to operate this “re-specification” of the question of the rule, starting from its conceptual constituents, to grasp the relation of reference and use that those who invoke it can have in context. The general and the particular are therefore transformed into categories of practical reasoning, that is, into the achievements of those who resort to the rule in the course of their public, political or judicial actions. In order to deal with the relation of the particular to the general in the practice of law, the article will, first of all, deal with the conception of the rule and its general and abstract character in the doctrine and theory of law. It will then take up the issue from the perspective of practitioners and users of the law. Finally, it will study the so-called “burkini” case to examine how the issue is deployed, in a contingent manner, on a three-tiered level: that of “opinion”, that of the administrative authority, and that of the authority that judges.