Abstract
This paper explores two persistent questions in the literature on presumptions: the place and the nature of presumptions in law and legal argumentation. These questions were originally raised by James Bradley Thayer, one of the masters of the Law of Evidence and the author of the classic chapter devoted this subject in A preliminary treatise on Evidence (1898). Like Thayer, I believe that these questions deserve attention. First the paper shows that the connection between presumptions and argumentation is a constant feature in the literature on presumptions, since its foundation in the Middle Ages to modern times. James Bradley Thayer was probably the last jurist who clearly saw that presumptions belong to argumentation. Second, the paper examines two sources of controversy in the language of presumptions. First, “presumption” is an ambiguous word in the legal discourse. As a result, it is almost impossible to provide a clear and succinct answer to the question “What is a presumption?”. Second, there are at least four reconstructions of the concept of presumption whose merits and shortcomings are relevant to explore. The analysis presented here may be of interest for legal and non-legal scholars and, hopefully, it may help to shed light on the possibilities and limits of an interdisciplinary dialogue about presumptions.
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Notes
On the use of presumptions in the Talmud see Edna Ulmann-Margalit (1983a, 467 ff.) and Franklin (2015, p. 96). On presumptions in Roman Law see Ferrini (1929), Donatuti (1976a, b), Reggi (1986), Hohmann (2001, 2002) and Franklin (2015). For a comparative historical view see Helmholz and David Sellar (2009).
It would be impossible to cite even a small portion of the legal literature on presumptions. The following references are provided here for illustrative purposes only. In the Civil Law see Ramponi (1890), Andrioli (1966), Decottignies (1950), Serra (1963) and Taruffo (1991). For an overview of the literature of presumptions in American law see the works cited in Ladd (1977), Allen (1980) and Allen and Callen (2003). In the British law see Denning (1945), Bridge (1949) and Dennis (2013).
As Kauffeld observes: “the application of legal models of probative responsibility to deliberation is limited by deep differences in the considerations which govern argumentation in these spheres of discourse” (Kauffeld 1998, 246). Hans Hansen (2003) remarked that early criticism on this subject goes back to Alfred Sidgwick’s assessment of the legal model presented by Whately. See additionally Freeman (2005, 22–23): “concepts analogous to the procedural rules of evidence in courts cannot find clear purchase in the messy world of ordinary deliberation”.
As Thayer puts it at the beginning of his essay: “Without entering now upon any detailed considerations of the mass of legal presumptions, an unprofitable and monstrous task, it may be possible to point out the nature and the place of this topic, and by this means to relieve the subject of much of its obscurity” (Thayer 1890, 313).
Additionally see McCormick (2013), § 342: “In some instances, however, these substantive rules are incorrectly referred to as presumptions. The most glaring example of this mislabeling is the ‘presumption of innocence’ as the phrase is used in criminal cases”.
Whately observed that “the most correct use of the term” is the use of ‘presumption’ to express a proposition that “stands good till some sufficient reason is adduced against it”, rejecting the use of this word to express “a preponderance of probability” (1990, 342).
According to Whately “having a presumption” means “that the Burden of proof lies on the side of him who would dispute it”(1990, 342). As shown in the second section of this paper, this definition corresponds to the use of “presumption” as a rule that allocates the burden of persuasion on the opponent.
See Whately (1990, 346): “A presumption evidently admits of various degrees of strength, from the very faintest, up to a complete and confident acquiescence”.
As to the conflict of presumptions see Whately (1990, 351): “it is to be observed, that a Presumption may be rebutted by an opposite Presumption, so as to shift the Burden of proof to the other side.”
This idea is developed in detail Gama (2015).
In the twelfth century Piacentino introduced the distinction between “praesumptio legitima”, which could not be overcome by evidence, and “praesumptio facti”, that could be overcome by evidence. Under the head of praesumptio iuris Pillius of Medicina distinguished between presumptions established by the law that admit evidence to the contrary and conclusive presumptions. This distinction gave rise to the classification of praesumptio iuris tantum and praesumptio iuris et de iure. See further references in Fiori (2009, 82).
The translation is taken from Adolfo Giuliani (Giuliani 2009, 38, n. 73): "Materia quam aggressuri sumus, valde utilis est et quotidiana in practica, sed confusa, inextricabilis fere: communisque est et jurisconsultoribus et rhetoribus in genere iudiciali". Cujas, a pupil of Alciatus, endorsed this view in the sixteenth century: “Presumptions are only conjectures, arguments (…) the burden of proof shifts to the person against whom the presumption is made. Presumptions prevail unless there is counter proof (…) Little has come to us about presumptions. However, whatever can be said about presumptions should be said by ‘rhetores’, not by the jurists: for they are factual in nature”. See this translation in Shain (1944, 95).
This first sense is equivalent to Perelman and Tyteca’s conception of presumptions as one of the types of starting points of argumentation regarded as valid for a universal audience (Perelman and Tyteca 1969, 70).
It is possible to point out some similarities and differences. The meanings of “presumption” identified with numbers 3 through 6 refer to presumptions that are subject of a rule of law. The first meaning of “presumption” does not designate a rule but a principle or maxim that has general acceptance in the law. The second meaning refers to a factual statement. On the other hand, it is possible to distinguish between irrebuttable presumptions of law (meaning 3) and rebuttable presumptions of law (meanings 5 and 6). Further differences and similarities will be seen in the analysis of the different conceptions of presumptions.
The definition of presumptions as inferences that go from the existence of one fact to the existence to another fact was included in the early treatises on evidence of the nineteenth century. According to Best: “Presumptions or, as they are sometimes called, intendments of law, and by the civilians praesumptiones seu positions iuris, are inferences or positions established for the most part by the common but occasionally by statute law, and are obligatory alike on judges and juries”. He then went on to argue that legal presumptions differ from presumptions in fact in that “the law peremptorily requires a certain inference to be made” (Best 1845, 33).
See Wigmore (1937 § 6, n.1): “The distinction between ‘presumption’ in the sense of a mere circumstantial inference and in the sense of a rule of procedure affecting the duty of proof has in modern times led to confusion. The term is often met with in the sense of ‘inference’, as applied to the probative value of ordinary circumstantial evidence” (Wigmore 1937, § 6 n. 1). See additionally Kaiser (1955).
See Morgan (1931), 257: “Thayer, Wigmore, and their disciples use presumption in a more restricted sense. Given the existence of A, the existence of B must be assumed. A is the basic fact, B the presumed fact”. Despite the efforts of these scholars, courts and legislators often use the term “presumption” to describe factual assumptions that are not subject of a rule of law.
Having agreed upon this, scholars have largely discussed the effect of presumptions on the burden of proof (whether presumptions shift the burden of production or evidential burden or the burden of persuasion). It is worth to mention an important contrast between English and American writers on this matter. As Peter Murphy puts it: “English writers have generally started with the proposition that there are different kinds of presumption, which have different effects on the burden of proof. American writers have sought (largely in vain) a principle applicable universally to all presumptions, but have found themselves unable to agree on what principle it should be”. See Glover (2013), 78.
Allen, Kuhns et al (2011, 742) provide a succinct definition that could help to clarify this doctrine: “If the plaintiff proves that the plaintiff was injured by an act that would normally not occur without negligence (fact A1), that the defendant was in exclusive control of the instrumentality that caused the act (fact A2), and that the plaintiff was not contributorily negligent (fact A3), the fact finder may (but is not required to) find that the defendant negligently caused the defendant’s injury (fact B)”.
Under this view the pluralistic and the functionalist conceptions could be seen as compatible. These conceptions could work together to clarify the different uses of presumptions and to explore their relationships.
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Gama, R. The Nature and the Place of Presumptions in Law and Legal Argumentation. Argumentation 31, 555–572 (2017). https://doi.org/10.1007/s10503-016-9417-3
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DOI: https://doi.org/10.1007/s10503-016-9417-3