Comments to Luís Duarte d’Almeida’s “What Is It to Apply the Law?”

Abstract

I present a critical review of Luís Duarte D’Almeida’s article “What Is It to Apply the Law?”. I begin by reviewing the main arguments against the so-called “legal syllogism” developed by the author in a previous paper, entitled “On the Legal Syllogism”, within the framework of which the article under comment is inscribed. I criticize his objections to the legal syllogism that are based on the claims that it does not withstand confrontation with judicial practice and that the judicial arguments should be reconstructed by means of second-order statements. I consider the distinction between an inferential aspect and a pragmatic aspect in the judicial decision to be correct, but I maintain that the explanation of the so-called “inferential application” is not intelligible and that no criteria are presented to distinguish between a decision that applies the law and one that does not.