Abstract
The notions of burden of proof and presumption are central to law, but as noted in McCormick on Evidence, they are also the slipperiest of any of the family of legal terms employed in legal reasoning. However, recent studies of burden of proof and presumption (Prakken et al. 2005; Prakken and Sartor 2006). Gordon et al. (2007) offer formal models that can render them into precise tools useful for legal reasoning. In this paper, the various theories and formal models are comparatively evaluated with the aim of working out a more comprehensive theory that can integrate the components of the argumentation structure on which they are based. It is shown that the notion of presumption has both a logical component and a dialectical component, and the new theory of presumption developed in the paper, called the dialogical theory, combines these two components.
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Notes
Verheij (1999, p. 115) (2000, p. 5) called this second form of inference modus non excipiens, arguing that it needs to be applied in cases where a general rule admits exceptions.
I would like to thank an anonymous referee for making this point, and for pointing out as well that different jurisdictions can treat the same rule as constitutive or probative. As this referee pointed out, the rule that a posted letter (see the next example) implies receipt of information is constitutive in German contract law, even though it may well be probative in American law.
Using the terms plaintiff and defendant can sometimes cause the reader to lose track when the burden of production is shifting back and forth from one side to another repeatedly over several moves in a dialog. For this reason we have invented the artificial terms “presumer” and “presumee” to name each side.
Although presumptions of the most common sort are generally defeasible, exceptions need to be made for conclusive presumptions in law. Courts have presumed that if a child is under seven years of age, she could not have committed a felony (Strong 1992, p. 451). We leave open the issue of whether so-called conclusive presumptions of this sort require an extension or modification of the theory.
The version in (Reed and Walton 2003) uses a variable S for the subject domain of the proposition.
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Walton, D. A dialogical theory of presumption. Artif Intell Law 16, 209–243 (2008). https://doi.org/10.1007/s10506-008-9063-7
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DOI: https://doi.org/10.1007/s10506-008-9063-7