Achilles, the Tortoise and the Application of Legal Rules as a "Particularistic Affair" without Particularism

Abstract

I focus on two aspects of Duarte d’Almeida’s paper “What is it to apply law?” identified as: 1) the legal syllogism is a bad reconstruction of the reasoning that leads to – and also justifies – a judicial decision; and 2) that the inference leading to a judicial decision is of a particularistic nature, not being an universal principle with which judges commit themselves when applying a legal rule. Regarding 1) I show some analogy with Lewis Carroll’s dialogue “What the Tortoise said to Achilles” and draw upon Gilbert Ryle’s conception of inference as a know how. Based on Rylean considerations, I mark the scope of my agreement on 2), and finally I disagree on what is to be involved in what the author calls “pragmatic application” of law.