An anthology of the most important historical sources, classical and modern, on the subjects of presumptions and burdens of proof In the last fifty years, the study of argumentation has become one of the most exciting intellectual crossroads in the modern academy. Two of the most central concepts of argumentation theory are presumptions and burdens of proof. Their functions have been explicitly recognized in legal theory since the middle ages, but their pervasive presence in all forms of argumentation (...) and in inquiries beyond the law--including politics, science, religion, philosophy, and interpersonal communication--have been the object of study since the nineteenth century. However, the documents and essays central to any discussion of presumptions and burdens of proof as devices of argumentation are scattered across a variety of remote sources in rhetoric, law, and philosophy. Presumptions and Burdens of Proof: An Anthology of Argumentation and the Law brings together for the first time key texts relating to the history of the theory of presumptions along with contemporary studies that identify and give insight into the issues facing students and scholars today. The collection's first half contains historical sources and begins with excerpts from Aristotle's Topics and goes on to include the locus classicus chapter from Bishop Whately's crucial Elements of Rhetoric as well as later reactions to Whately's views. The second half of the collection contains contemporary essays by contributors from the fields of law, philosophy, rhetoric, and argumentation and communication theory. These essays explore contemporary understandings of presumptions and burdens of proof and their role in numerous contexts today. This anthology is the definitive resource on the subject of these crucial rhetorical modes and will be a vital resource to all scholars of communication and rhetoric, as well as legal scholars and practicing jurists. (shrink)

When we speak, we mean more than we say. In this book Stephen C. Levinson explains some general processes that underlie presumptions in communication.

In earlier work on limitarianism, I argued that setting an upper limit to the amount of wealth that people can permissibly have is justified when decision-makers are unaware of or disagree about the appropriate distributive criterion or if they are unaware of people’s relevant features (or both). Robert Huseby has raised several powerful objections to this presumptive argument for limitarianism. Some of these objections call for a revision of my defence of presumptive limitarianism while others call for clarification, both of (...) which I aim to do in this chapter. I will argue that unless decision-makers have substantive reasons to suggest otherwise, they must act as if there is an upper limit to the amount of wealth that people can permissibly have. (shrink)

This paper joins the voices warning against hasty transference of legal concepts of presumption to other kinds of argumentation, especially to deliberation about future acts and policies. Comparison of the pragmatics which respectively constitute the illocutionary acts of accusing and proposing reveals important differences in the ways presumptions prompt accusers and proposers to undertake probative responsibilities and, also, points to corresponding differences in their probative duties. This comparison has theoretically important implication regarding the norms governing persuasive argumentation. The paper (...) is based on a broadly Gricean account of speech acts. (shrink)

Although in some contexts the notions of an ordinary argument’s presumption, assumption, and presupposition appear to merge into the one concept of an implicit premise, there are important differences between these three notions. It is argued that assumption and presupposition, but not presumption, are basic logical notions. A presupposition of an argument is best understood as pertaining to a propositional element (a premise or the conclusion) e of the argument, such that the presupposition is a necessary condition for the truth (...) of e or for a term in e to have a referent. In contrast, an assumption of an argument pertains to the argument as a whole in that it is integral to the reasoning or inferential structure of the argument. A logical assumption of an argument is essentially a proposition that must be true in order for the argument aside from that proposition to be fully cogent. Nothing that is both comparable and distinguishing can be said about presumptions of arguments. Rather, presumptions of arguments are distinctively conventional; they are introduced through conventional rules (e.g., those that concern how to treat promises). So not all assumptions and not all presuppositions of arguments are presumptions of those arguments, although all presumptions of arguments are either assumptions or presuppositions of those arguments. This account avoids making the (monological) notion of presumption vacuous and dissolving the distinction between assumption and presumption, which is a vulnerability of alternative views such as Hansen’s and Bermejo-Luque’s, as is shown. (shrink)

Presumption is a remarkably versatile and pervasively useful resource. Firmly grounded in the law of evidence from its origins in classical antiquity, it made its way in the days of medieval scholasticism into the theory and practice of disputation and debate. Subsequently, it extended its reach to play an increasingly significant role in the philosophical theory of knowledge. It has thus come to represent a region where lawyers, debaters, and philosophers can all find some common around. In Presumption and the (...) Practices of Tentative Cognition, Nicholas Rescher endeavors to show that the process of presumption plays a role of virtually indispensable utility in matters of rational inquiry and communication. The origins of presumption may lie in law, but its importance is reinforced by its service to the theory of information management and philosophy. (shrink)

When we use a word, we face a crucial epistemic gap: we ground our move on the fact that our interlocutor knows the meaning of the word we used, and therefore he can interpret our dialogical intention. However, how is it possible to know the other’s mind? Hamblin explained this dialogical problem advancing the idea of dialectical meaning: on his view, the use of a word is based on a set of presumptions. Building on this approach, the use of (...) a word in a dialogue can be analyzed in terms of presumptive reasoning, while the manipulative strategies based on slanted or loaded terms or redefinitions can be conceived as forms of conflicts of presumptions. A presumptive approach to meaning can also ground different dialectical strategies to solve misunderstanding or definitional disagreements, or tactics to undermine the interlocutor’s arguments by advancing charges of equivocation. (shrink)

Standards and norms for reasoning function, in part, to manage epistemic risk. Properly used, modal qualifiers like presumably have a role in systematically managing epistemic risk by flagging and tracking type-specific epistemic merits and risks of the claims they modify. Yet, argumentation-theoretic accounts of presumption often define it in terms of modalities of other kinds, thereby failing to recognize the unique risk profile of each. This paper offers a stipulative account of presumption, inspired by Ullmann-Margalit, as an inferentially generated modal (...) qualifier, “presumably, p,” distinguishing it from other, particularly epistemic modalities, e.g., standing commitments, assumptions, assertions, suppositions, hypotheses, and defeasible claims. By avoiding the tranching of inferential instruments of qualitatively different bona fides and risk profiles, this account provides a more accurate risk-rating system that better manages epistemic risk in inference, as well as contributing to the normative theory of the operation of presumption in reasoning and argument. (shrink)

This paper shows how reasoning from best explanation combines with linguistic and factual presumptions during the process of retrieving a speaker’s intention. It is shown how differences between presumptions need to be used to pick the best explanation of a pragmatic manifestation of a dialogical intention. It is shown why we cannot simply jump to an interpretative conclusion based on what we presume to be the most common purpose of a speech act, and why, in cases of indirect (...) speech acts, we need to depend on an abductive process of interpretation. (shrink)

In this article, I assess the prospects for the limitarian thesis that someone has too much wealth if they exceed a specific wealth threshold. Limitarianism claims that there are good political and/or ethical reasons to prevent people from having such ‘surplus wealth’, for example, because it has no moral value for the holder or because allowing people to have surplus wealth has less moral value than redistributing it. Drawing on recent literature on distributive justice, I defend two types of limitarian (...) principles of justice. First, limitarian midlevel principles draw on the limitarian thesis to specify normative commitments for guiding institutional design and individual actions. Second, the limitarian presumption draws on that thesis to specify what a just allocation of wealth requires under epistemic constraints. Such a presumption says that without substantive reasons to the contrary, we should regard a distribution as unjust if some people’s wealth exceeds the limitarian threshold. Furthermore, I will argue that we must reject a possible but implausible interpretation of limitarianism as an ideal distributive pattern. Yet both as a midlevel principle and as a presumption, limitarianism can play an important role in theorizing about justice in the real world. (shrink)

The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed, historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due process, as developed throughout English and US. Colonial history leading up to the formation of (...) the US. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred. (shrink)

Within contemporary metaethics, it is widely held that there is a “presumption of realism” in moral thought and discourse. Anti-realist views, like error theory and expressivism, may have certain theoretical considerations speaking in their favor, but our pretheoretical stance with respect to morality clearly favors objectivist metaethical views. This article argues against this widely held view. It does so by drawing from recent discussions about so-called “subjective attitude verbs” in linguistics and philosophy of language. Unlike pretheoretically objective predicates (e.g., “is (...) made of wood”, “is 185 cm tall”), moral predicates embed felicitously under subjective attitude verbs like the English “find”. Moreover, it is argued that the widespread notion that moral discourse bears all the marks of fact-stating discourse is rooted in a blinkered focus on examples from English. Cross-linguistic considerations suggest that subjective attitude verbs are actually the default terms by which we ascribe moral views to people. Impressions to the contrary in English have to do with some unfortunate quirks of the term “think”. (shrink)

Presumption of Equality requires that individuals be treated equally in the absence of relevant information that would discriminate between them. Our objective is to make this principle more precise, if viewed as a principle of fairness, and to determine why and under what conditions it should be obeyed. Presumption norms are procedural constraints, but their justification can be sought in the possible or expected outcomes of the procedures they regulate. This is the avenue pursued here. The suggestion is that in (...) the absence of information that would discriminate between the individuals, equal treatment minimizes the expected unfairness of the outcome. A related suggestion is that equal treatment under these circumstances also minimizes the maximal possible unfairness of the outcome. Whether these suggestions are correct or not depends on the properties of the underlying unfairness measure. The required properties are specified. The essay also considers the normative status of equal lotteries on unequal treatments. (shrink)

Presumption of Equality requires that individuals be treated equally in the absence of relevant information that would discriminate between them. Our objective is to make this principle more precise, if viewed as a principle of fairness, and to determine why and under what conditions it should be obeyed. Presumption norms are procedural constraints, but their justification can be sought in the possible or expected outcomes of the procedures they regulate. This is the avenue pursued here. The suggestion is that in (...) the absence of information that would discriminate between the individuals, equal treatment minimizes the expected unfairness of the outcome. A related suggestion is that equal treatment under these circumstances also minimizes the maximal possible unfairness of the outcome. Whether these suggestions are correct or not depends on the properties of the underlying unfairness measure. The required properties are specified. The essay also considers the normative status of equal lotteries on unequal treatments. (shrink)

Many distributive egalitarians do not endorse strict equality of goods. Rather, they treat an equal division as having a special status such that departures from equality must be justified. They claim, then, that an equal division is “presumptively” just. Though the idea that equality is presumptively just and that departures from it may be just has intuitive appeal, making a case for this idea proves difficult. I argue, first, that extant “presumption arguments” are unsound. Second, I distill two general philosophical (...) morals: luck egalitarians have not adequately defended the presumption of equality and they face serious obstacles in doing so; Rawls has defended it, but only indirectly via the contract apparatus. This approach narrows the presumption’s appeal. Third, I consider and reject two alternative ways of understanding the presumption of equality that might avoid the problems revealed by my examination of extant views. The first appeals to the idea of value pluralism. The second treats the presumption as a view about the burden of proof. I conclude, ultimately, that it is misleading to think of distributive egalitarianism as typically having the form of a presumption argument. (shrink)

Current practice in logic increasingly accords recognition to abductive, presumptive or plausible arguments, in addition to deductive and inductive arguments. But there is uncertainty about what these terms exactly mean, what the differences between them are (if any), and how they relate. By examining some analyses ofthese terms and some of the history of the subject (including the views of Peirce and Cameades), this paper sets out considerations leading to a set of definitions, discusses the relationship of these three forms (...) of argument to argumentation schemes and sets out a new argumentation scheme for abductive argument. (shrink)

The aim of this paper is to explore the viability of accounting for presumptions as a subtype of verdictives, within the framework of the Austinian approach to speech acts. The available set of felicity conditions is examined and worked out, in order to try and account in particular for a main feature of presumptions, namely, their function in shifting the burden of proof. In order to extend the Austinian framework as required, the notion of pragmatic presupposition accommodation is (...) shown to be a useful device. (shrink)

In this paper a theoretical definition that helps to explain how the logical structure of legal presumptions is constructed by applying the Carneades model of argumentation developed in artificial intelligence. Using this model, it is shown how presumptions work as devices used in evidentiary reasoning in law in the event of a lack of evidence to assist a chain of reasoning to move forward to prove or disprove a claim. It is shown how presumptions work as practical (...) devices that may be useful in cases in which there is insufficient evidence to prove the claim to an appropriate standard of proof. (shrink)

in Undetermined Presumption of Equality enjoins that individuals be treated equally in the absence of discriminating information. My objective in this paper is to make this principle more precise, viewing it as a norm of fairness, in order to determine why and under what conditions it should be obeyed. Presumption norms are procedural constraints, but their justification might come from the expected outcomes of the procedures they regulate. This outcome-oriented approach to fairness is pursued in the paper. The suggestion is (...) that in the absence of information that would discriminate between the individuals, equal treatment minimizes the expected unfairness in the outcome. Another suggestion is that, under these circumstances, equal treatment also minimizes maximal possible unfairness, i.e., it is minimally unfair if ‘worst comes to worst’. Whether these suggestions are correct depends on the properties of the underlying unfairness measure. (shrink)

in Undetermined Presumption of Equality enjoins that individuals be treated equally in the absence of discriminating information. My objective in this paper is to make this principle more precise, viewing it as a norm of fairness, in order to determine why and under what conditions it should be obeyed. Presumption norms are procedural constraints, but their justification might come from the expected outcomes of the procedures they regulate. This outcome-oriented approach to fairness is pursued in the paper. The suggestion is (...) that in the absence of information that would discriminate between the individuals, equal treatment minimizes the expected unfairness in the outcome. Another suggestion is that, under these circumstances, equal treatment also minimizes maximal possible unfairness, i.e., it is minimally unfair if ‘worst comes to worst’. Whether these suggestions are correct depends on the properties of the underlying unfairness measure. (shrink)

In the first part of this paper I consider the Gricean account of communication, as structured by the Cooperative Principle and the four maxims. Several authors, including Jean Goodwin [10], Fred Kauffeld [17], Michael Gilbert [7], Ernie Lepore and Mathew Stone [22], among others, argue that the Gricean view of communication fails in as much as it pretends to offer an account of all such human interactions. As Goodwin and Kauffeld suggest, a more promising starting point is to consider the (...) variety of contextually determined presumptions that we make about speakers and that we rely upon in interpreting utterances. These presumptions are established in various ways, and are dropped, or defeated, in certain conditions. In order to clarify these aspects we need to inquiry into the nature of presumptions. I argue that Kauffeld’s [18], [19], [20] account of presumptions is useful in this context. In the second part of the paper I look at what this account tells us about how, and in what conditions, presumptions in communication are rebutted. (shrink)

This paper responds to Kauffeld’s 2009 OSSA paper, considering the adequacy of his “commitment-based” approach to “ordinary presumptive practices” to sup-ply an account of presumption fit for general application in normative theories of argument. The central issue here is whether socially-grounded presumptions are defeasible in the right sorts of ways so as to pro-duce “truth-tropic” presumptive inferences.

This book identifies 25 argumentation schemes for presumptive reasoning and matches a set of critical questions to each.

The paper considers contemporary models of presumption in terms of their ability to contribute to a working theory of presumption for argumentation. Beginning with the Whatelian model, we consider its contemporary developments and alternatives, as proposed by Sidgwick, Kauffeld, Cronkhite, Rescher, Walton, Freeman, Ullmann-Margalit, and Hansen. Based on these accounts, we present a picture of presumptions characterized by their nature, function, foundation and force. On our account, presumption is a modal status that is attached to a claim and has (...) the effect of shifting, in a dialogue, a burden of proof set at a local level. Presumptions can be analysed and evaluated inferentially as components of rule-based structures. Presumptions are defeasible, and the force of a presumption is a function of its normative foundation. This picture seeks to provide a framework to guide the development of specific theories of presumption. (shrink)

On the standard view, all presumptions share the same deontic function: they asymmetrically allocate the burden of proof. But what, exactly, does this function amount to? Once presumptions are rejected, do they place the burden of arguing, the burden of explanation, or the most general burden of reasoning on their opponents? In this paper, I take into account the differences between cognitive and practical presumptions and argue that the standard accounts of deontic function are at least ambiguous, (...) and likely implausible. As a result, they require qualifications. (shrink)

By explaining the argument from ignorance in terms of the presumption of innocence, many textbooks in argumentation theory suggest that some arguments from ignorance might share essential features with some types of presumptive reasoning. The stronger version of this view, suggesting that arguments from ignorance and presumptive reasoning are almost indistinguishable, is occasionally proposed by Douglas Walton. This paper explores the nature and limits of the stronger proposal and argues that initial presumptions and arguments from ignorance are not closely (...) connected. There are three main reasons. First, the argument from ignorance, unlike typical presumptive reasoning, is a negative kind of inference. Second, the typical initial presumption is sensitive to a broader set of defeaters and thus assumes a higher standard of acceptability. Third, in dialectical terms, initial presumption and argument from ignorance bring different attacking rights and obligations. I conclude that Waltonian intuition is unsupported or, at best, is limited only to practical presumptions and practical arguments from ignorance. (shrink)

At the beginning of Book X of his last work The Laws Plato turns his attention from violent and outrageous actions in general to the particular case of undisciplined and presumptuous behaviour in matters of religion: “We have already stated summarily what the punishment should be for temple-robbing, whether by open force or secretly. But the punishments for the various sorts of insolence in speech or action with regard to the gods, which a man can show in word or deed, (...) have to be proclaimed after we have provided an exordium. Let this be it: ‘No one believing, as the laws prescribe, in the existence of the gods has ever yet performed an impious action willingly, or uttered a lawless word. Anyone acting in such a way is in one of three conditions: either, first, he does not believe the proposition aforesaid; or, second, he believes that though the gods exist they have no concern about men; or, third, he believes that they can easily be won over by the bribery of prayer and sacrifice”. (shrink)

My topic is Alvin Plantinga’s ’solution’ to one of the many forms that the problem of evil takes: the modal abstract form. This form of the problem is abstract in that it does not deal with the amounts or kinds of evil which exist, but only with the fact that there is some evil or other. And it is modal in that it concerns the compossibility of the following propositions, not any evidential relation between them: God is omnipotent, omniscient, and (...) wholly goodand There is evil in the world. (shrink)

At the beginning of Book X of his last work The Laws Plato turns his attention from violent and outrageous actions in general to the particular case of undisciplined and presumptuous behaviour in matters of religion: “We have already stated summarily what the punishment should be for temple-robbing, whether by open force or secretly. But the punishments for the various sorts of insolence in speech or action with regard to the gods, which a man can show in word or deed, (...) have to be proclaimed after we have provided an exordium. Let this be it: ‘No one believing, as the laws prescribe, in the existence of the gods has ever yet performed an impious action willingly, or uttered a lawless word. Anyone acting in such a way is in one of three conditions: either, first, he does not believe the proposition aforesaid; or, second, he believes that though the gods exist they have no concern about men; or, third, he believes that they can easily be won over by the bribery of prayer and sacrifice”. (shrink)

In this article, I assess the prospects for the limitarian thesis that someone has too much wealth if they exceed a specific wealth threshold. Limitarianism claims that there are good political and/or ethical reasons to prevent people from having such ‘surplus wealth’, for example, because it has no moral value for the holder or because allowing people to have surplus wealth has less moral value than redistributing it. Drawing on recent literature on distributive justice, I defend two types of limitarian (...) principles of justice. First, limitarian midlevel principles draw on the limitarian thesis to specify normative commitments for guiding institutional design and individual actions. Second, the limitarian presumption draws on that thesis to specify what a just allocation of wealth requires under epistemic constraints. Such a presumption says that without substantive reasons to the contrary, we should regard a distribution as unjust if some people’s wealth exceeds the limitarian threshold. Furthermore, I will argue that we must reject a possible but implausible interpretation of limitarianism as an ideal distributive pattern. Yet both as a midlevel principle and as a presumption, limitarianism can play an important role in theorizing about justice in the real world. (shrink)

I argue for the distinction between presuming that p and maintaining that presumably p. In order to make sense of this distinction, I defend a non-inferentialist conception of presumptions and offer an account of the correctness conditions for both presumptions and presumptive inferences. I characterize presumptions as a type of constative speech-act having certain semantic correctness conditions. In turn, regarding presumptive inferences, my strategy is to provide the correctness conditions for the use of an epistemic modal such (...) as “presumably.” This epistemic modal is characterized as a force indicator for speech-acts of concluding in complex speech-acts of arguing involving presumptive inferences. (shrink)

This paper sets out and examines the presuppositions and presumptions of management educators. It is based on an empirical study of 25 management educators from three UK Business Schools who are responsible for management education and development. The aim of the study is not to generalise the findings but to adopt an interpretive methodology to identify and question the hidden and unexamined presuppositions and presumptions of management educators that underlie management programme development and design. The author finds the (...) presuppositions and presumptions problematic, inaccurate and uncritical, and they are responsible for producing and re-producing the practices of management for contemporary organisations and wider society. The author articulates these concerns in a philosophical manner in order to raise questions and challenge the embedded fads and wisdom. This paper concludes by inviting management educators to rethink management education and development and examine their own presuppositions and presumptions underpinning programme development and design. (shrink)

This article is concerned with what constitutes interference with the presumption of innocence and what justifications there might be for such interference. It provides a defence of a theory of the presumption of innocence that suggests that the right is interfered with if the offence warrants conviction of defendants who are not the intended target of the offence. This thesis is defended against two alternative theories. It then considers what might justify interference with the presumption of innocence. It explores the (...) idea that interference is justified if it is necessary in a democratic society and considers the presumption in relation to the aims of the criminal trial. It is concluded that no good grounds have been provided for interference with the right, and that the right should be regarded as inviolable. (shrink)

A comprehensive evidentiary regime that would encompass adaptations, exaptations, spandrels, and constraints requires both a standard to be satisfied and a predesignated default presumption to be maintained before the standard is satisfied. Andrews et al. focus principally on the former component. Some thoughts are here offered on the latter.

Douglas Walton has done extensive and valuable work on the concepts of presumption and practical reasoning. However, Walton’s attempt to model practical reasoning as presumptive is misguided. The notions of “inference” and of the burden of proof shifting back and forth between proponent and respondent are misleading and lead to counterintuitive consequences. Because the issue in practical reasoning is a proposal, not a proposition, there are, in the standard case, several perfectly good reasons on both sides simultaneously, which implies that (...) argument appraisal necessarily contains a subjective element—a fact argumentation theory needs to conceptualize. (shrink)

In this paper I present an argument for a procedural principle of distribution, which is often called the presumption of equality.

This article clarifies and further defends the view that the right to be presumed innocent until proven guilty, protected by Article 6(2) of the European Convention of Human Rights has implications for the substantive law. It is shown that a ‘purely procedural’ conception of the presumption of innocence has absurd implications for the nature of the right. Objections to the moderate substantive view defended are considered, including the acceptability of male prohibits offences, the difficulty of ascertaining intentions of legislatures and (...) the proper role of prosecutorial discretion. (shrink)

Several distinguished philosophers have argued that since the state of affairs where nothing exists is the simplest and least arbitrary of all cosmological possibilities, we have reason to be surprised that there is in fact a non-empty universe. We review this traditional argument, and defend it against two recent criticisms put forward by Peter van Inwagen and Derek Parfit. Finally, we argue that the traditional argument nevertheless needs reformulation, and that the cogency of the reformulated argument depends partly on whether (...) there are certain conceptual limitations to what a person can hypothetically doubt. (shrink)

The starting frame with which jurors begin trials and the approach which they should take toward the presentation of evidence by the prosecution and defense are distinguished. A robust interpretation of the starting frame, according to which jurors should begin trials by presuming the material innocence of defendants, is defended. Alternative starting frames which are less defendant-friendly are shown to cohere less well with the notion that criminal trials should constitute stern tests of the government's case against those it has (...) charged with crimes. The intuitive case for the robust presumption of innocence is supplemented with empirical evidence concerning the psychology of belief formation and preservation. Various objections to the proposed starting frame are addressed. (shrink)

Our conversations about punishment have been constrained by the presumption that crimes ought to be punished. This presumption does not entail that crimes must be punished, but rather that punishment occurs as a natural response to wrongdoing instead of as a conventional creation. As a consequence, the challenges for punishment’s justification have been reduced to the problems of purpose, opportunity and form, leaving unaddressed the question of the authority of a certain polity to impose this form of treatment on a (...) given individual. In order to present and criticize this presumption, the article traces its origins by revisiting the debate about the nature of punishment that took place during the emergence of liberal political philosophy. After evaluating the main arguments of this debate the article concludes by arguing that liberal theories of punishment should give up this presumption. (shrink)