Well over fifteen years ago I wrote to the general editor of the online Stanford Encyclopedia of Philosophy (SEP), Ed Zalta, as well as to several subject editors, asking them to consider an entry on “presumption.” A terse response informed me that it was not considered a topic worthy of inclusion in the encyclopedia. I’ve perhaps perversely persevered in the belief, however, that philosophers should analytically address the role of presumption as found in several kinds of reasoning and various argument fora. The following are some of the notes I collected at the time (at least those I’ve found), along with recently added material, which I’m proffering, once more, as evidence on behalf of the philosophical (and legal) significance of the concept—and conceptions—of “presumption.” Such an examination would profit by comparison with the role of assumptions and presuppositions in these same contexts. The SEP does have an entry on “presupposition.”
My belief in the significance presumptive reasoning finds support in the work of a handful of philosophers (there may be others): Douglas Walton, Nicholas Rescher, Michael Williams, Stephen Toulmin, and Robert Brandom. In Nicholas Rescher’s Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective (2001), presumption plays a pivotal role in epistemic justification as a more than plausible alternative to exclusively foundationalist, coherentist, or causal accounts (wherein epistemic mediation between sense experience and beliefs is not inferential but praxial, affording thereby an indispensable part for presumption): “Presumption is the epistemic analogue of ‘innocent until proven guilty.’” Rescher goes on to outline the requisite principles of presumption in what Avrum Stroll rightly describes as a “coherent picture of how classical epistemological problems can be viewed through the lens of a sophisticated, contemporary, pragmatic point of view.”
The importance of (defeasible) presumptions is pivotal to Robert Brandom’s “default and challenge” model of epistemic justification (again, on analogy with the legal presumption of innocence, but here ‘innocent until indicted on the basis of reasonable suspicion’): one is entitled (entitlement means ‘positive justificatory status’) to a belief or assertion—knowledge claim—in the absence of reasons (‘defeaters’) to think that one is not so entitled. Here prima facie or default (presumptive) entitlements avoid foundational regress (the critique from skepticism) and at the same time remain open to criticism, as the pragmatist insists that “[o]ne must start with a notion of taking or treating inferences as correct in practice” (from Brandom's Making it Explicit). Interestingly, Alvin Goldman seems to acknowledge, if only in a backhanded or indirect way, something like this when he notes that “humans cannot mount any effective track record argument for the reliability of human cognition without using human cognition.” The epistemic circularity here (or possibility of regress) being virtuous or necessary rather than vicious or avoidable. Defeaters, as Michael Williams (in Problems of Knowledge) has explained, are of two sorts: those invoking evidence and those concerning epistemic responsibility (the route of belief acquisition). The sharing of “justificatory responsibilities” between claimants and challengers appears to be an attractive, if not novel, feature of this model.
According to Goldman (in Knowledge in a Social World), something similar if not identical is found with regard to testimony in epistemology in the work of Tyler Burge and Elizabeth Fricker: “A hearer has a presumptive epistemic right to believe what a speaker (baldly) asserts even without positive independent reasons for trusting the speaker on this occasion. This presumption is defeated, however, if the hearer has negative evidence that renders the speaker’s assertion untrustworthy.”
Finally, Stephen Toulmin has shown how presumptive reasoning is integral to everyday argumentation, a theme later taken up in a more thorough if not systematic fashion by Douglas Walton. Both Toulmin and later Walton have also addressed the meaning and role of presumption in legal reasoning.
What follows are snippets from my notes on this topic (my research in this regard is ongoing) which I hope will provide the reader with a taste of this topic (one you might nevertheless savor if not relish).
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Epistemic
- Epistemically speaking, “even if there is no hard evidence showing that a proposition can be proved true, it can be presumed (tentatively) true, subject to later rejection if new evidence proves it false.”
- A definition of presumption in terms of an inference typically has three components (i) the presumption-raising fact in a particular case at issue, (ii) the presumption formula, a (special type of) defeasible rule that sanctions the passage from the presumed fact to the conclusion, (iii) the conclusion is a proposition that is presumed to be true on the basis of (i) and (ii).
- Presumptions are inherently defeasible, that is, subject to rebuttable or refutation
- Philosophically speaking, we can speak of several kinds (or epistemic foundations) of presumption: rational, causal, inductive and dialogical.
- Presumptions vary in degree from weak to strong.
- Presumptions cannot prove a conclusion; on the contrary, they intervene when it is not possible to demonstrate a conclusion.
- Presumptions should be clarified in relation to assumptions and presuppositions.
- “Presumptions can be distinguished from assumptions or ordinary statements because the respondent in a dialogue cannot simply reject them; in order not to be committed to a presumption, the interlocutor needs to provide a rebuttal.” (Douglas Walton)
- Dialectically speaking, presumptions involves three elements: (i) it must be based on a generally accepted principle of inference (otherwise it would be an assumption); (ii) it is used in conditions of lack of evidence to meet a standard of proof (otherwise it would be an ordinary defeasible inference of any kind), and (iii) it is used to shift a burden of proof in types of dialogue characterized by an opposition of viewpoints and argumentation, such as persuasion dialogue.
Argumentative
- “For both theoretical and practical reasons … it is helpful to think of most practical warrants as holding in general rather than necessarily. Where good practical reasons exist for enumerating explicitly the specific (though rare) exceptions and exclusions that limit the application of such a warrant, we can legitimately state the resulting claim as a presumption, setting the exceptions and exclusions on one side to be dealt with separately as rebuttals when and only when they arise” (Toulmin, Reike and Janik).
- There are different theories of presumption in argumentation, but in general we find two main types or levels: inferential and dialectical.
- The notion of presumption is essential to an analysis of argument base on informal logic.
- Douglas Walton’s dialogue-based approach to argumentation “explains presumption as a kind of speech act that is stronger than a pure assumption, in respect to how it affects commitment in dialogue, but weaker than assertion.”
- “The key characteristic of presumption as a speech act in dialogue on this theory is that it reverses a burden of proof by switching the roles of the two participants in the dialogue. Normally, the burden of proof is on the proponent asserting a proposition, but in the case of a presumption, a burden of disproof falls onto the respondent, once it has been accepted as a commitment in the dialogue.”
- Presumptive reasoning, according to Walton and in the words of Christian Kock, “creates a special kind of inference, different from both deductive and inductive inference, and characterized in particular by the shifting of the burden of proof. [….] Walton has shown that presumptive reasoning is widespread in real-life argumentation of any kind.” Kock has in fact written a compelling critique of particular features of Walton’s conception “argumentation schemes” with presumptive reasoning as these bear upon practical reasoning in general. (Thus an appreciation of Walton’s elucidation of presumption and presumptive arguments should be complemented by Kock’s evaluative critique.)
Legal (criminal law)
- Presumptions are common in legal reasoning (where it is used, for example, to shift the burden of proof) generally and of course it is conspicuous in the criminal law’s principle of “presumption of innocence.”
- Presumption of innocence in criminal law is epistemically linked to a coherent conceptual cluster that includes, first and foremost: reasonable doubt, the benefit of the doubt, the standard of proof, the prosecutorial burden of proof, and relevance and reliability (and due process more generally). This conceptual cluster makes for what Larry Laudan calls the “error distribution doctrine” in a criminal trial, all of which are said to “safeguard the fate of the defendant by making it hard to convict any but the most obviously guilty.”
- “ … [T]he presumption of innocence does not hold that individuals should be considered not guilty until proven guilty—much more strongly, they must be treated as innocent until proven guilty.” (George P. Fletcher)
- According to Larry Laudan, “the presumption of innocence” precludes jurors from attaching any significance to the fact that the defendant has already been found probably guilty [i.e., is more guilty than innocent] in a series of prior hearings and tribunals.”
- “…[T]here is little consensus about precisely what the presumption of innocence means, [thus] there is ardent debate about to whom and when it applies, and … courts and legal scholars disagree about whether it stands on its own legs doctrinally or is simply an obvious, if nontrivial, consequence of the standard (or perhaps the burden) of proof.” (Laudan)
- “In science, the null or default assumption is (for example) that there is no causal link between one thing or another. In law, the default position is the claim that the defendant is innocent. There is a less obvious, but no less important, analogy between the two forms of inquiry. It amounts to this: Just as, in the clinical trial of a drug, the failure to prove a drug’s efficacy is not proof that the drug is nonefficacious [in the instant or other therapeutic applications], so the failure to prove a defendant’s guilt is not proof that he did not commit the crime. In each case, the evidence shows only that the pertinent standard of proof was not satisfied. Put in its simplest terms, failure to prove X is never a proof of not-X.” (Laudan) To drive this point home, Laudan suggests that “almost the only way a criminal defendant can secure a decision that actually implies his innocence is first to win an acquittal in a criminal case and then to bring and win a suit for malicious prosecution. No other judgment in the justice system represents the finding of innocence.”
- According to Laudan, the notion of presumption of innocence in criminal law is muddled or mistaken because it fails to make a fundamental distinction between “material” innocence and “probatory” innocence, according undue weight to the former. This is one of several ways Laudan illustrates that argument: “The assumption of material innocence is no more appropriate than it is necessary. After all, a juror, at the outset, has no basis for either affirming or denying the material innocence of the defendant, nor has she any idea what sorts of exculpatory and inculpatory evidence will arise in the course of the trial, and so on. Worse, the assumption of material innocence requires the juror to deny what she already knows: to wit, that persons do not get the trial state in a criminal proceeding if the probability of their material guilt is vanishingly small [I believe this to be arguable with several classes of defendants]. Insisting that the juror must go into a trial utterly convinced that the defendant is materially innocent belies the elaborate winnowing structure of the legal system [I doubt people of color, especially Blacks, as well as those either absolutely or relatively poor would characterize this as a ‘winnowing structure.’ They might, on the contrary, see it as a ‘collaborative structure’ that gives form to systematic biases of one kind or another.] In the end (or in the beginning), “[t]he crucial point is that the juror must be willing to accept, without reservation, the thesis of probatory evidence, regardless of what tentative hypotheses she may have entertained about material guilt and innocence.”
- The Supreme Court of the U.S. had made it clear that the presumption of innocence “applies only to the trial itself and, within the trial, only to the jury or other trier of fact.” (Laudan)
- The presumption of innocence, it has been argued, “has been progressively eroded by broad offence definitions, shifts in burdens of proof, and the use of strict liability.” R.A. Duff states that our traditional conception of this presumption involves (or involved) a “broader principle of trust: we should presume each other to be ‘free of harmful intentions;’” and it even provides for a presumptive trust of offenders not to commit future crimes. As Duff explains: “An essential feature of a liberal penal system is that punishment is finite and limited: what the offender is to undergo is determined in advance by a sentencing process structured by the question of what constitutes an appropriate response to his crime. His sentence might involve restrictions on his liberty, including imprisonment, and forms of supervision that would normally be illegitimate; but once it is over, he is free from those restrictions and from such supervision, without having to prove that he will refrain from future crimes; having served his sentence, he is once again entitled to the broad presumption of innocence. Provisions for ‘dangerous’ persistent offenders that allow for their indefinite or life-long detention abandon this aspect of liberal criminal law, and imply that a persistent offender can lose his right to that presumption—not just for a limited time, but indefinitely or for life.”
- George P. Fletcher writes that “it is not entirely clear to common law thinkers whether the term ‘innocence’ [in the ‘presumption of innocence’] refers to innocence relative to the actus reus and mens rea or, alternatively, to innocence from any form of culpability relative to the commission of the offense.”
- Further evidence of the erosion of the presumption of innocence can be indirectly inferred from the fact that the criminal justice system often operates in a manner that forgets or ignores that fact that “the focus of punishment should be the act alone and not the actor’s moral character or criminal record. It is fundamentally unjust to convict a defendant for a specific crime just because it is known that he has committed many crimes in the past. If the presumption of innocence means anything in contemporary criminal law, it means that we must judge the alleged criminal act in abstraction from experience with the suspect and his history of criminal conduct.” (Fletcher).
- Fletcher reminds us that “[t]he presumption of innocence is one of the minimal conditions of due process, In common law jurisdictions, we express this standard as ‘proof beyond a reasonable doubt.’ Continental lawyers make the same point by stressing the maxim in dubio pro reo—all doubts about guilt or innocence should be resolved in the favor of the accused.” Moreover, the centrality or importance of this principle to liberal criminal law can be seen in in the oft-repeated proposition that “it is better to let ten guilty defendants go free rather than to convict one innocent. If justice requires the punishment of the guilt, then the principles of fair trial, skewed as they are [or should be] to the interests of the defendant, permit some injustices to occur.”
- Presumptions in law are distinguished in three categories: presumptions of fact, or presumptio hominis (or conclusions drawn from principles from everyday experience and past facts), presumptions of law (or inferences grounded on legal rules), and irrebuttable presumptions, or praesumptio iuris et de iure (or conclusions from principles of law).
In Indian/Indic philosophy (alas, this is a cursory introduction as I am not a specialist in this area)
- Arthāpatti is translated as either “postulation” or “presumption” (Pradeep P. Gokhale prefers ‘explanatory implication’), and “is broadly recognized as a pramāṇa,* whether as a sui generis one, as by Mīmāṃsā and [Advaita] Vedānta, or as a type of anumāna [inferential reasoning], as by Nyāya.” (Malcolm Keating) It is also “an important pramāṇa for the interpretation of Vedic texts and its purported non-reducibility to anumāṇa raises interesting questions about the relationship between epistemology and logic.” (Keating) As a presumption it is, as in Western philosophy, rebuttable, and is characterized in one definition as “the process of knowledge [or knowing] which makes something intelligible by assuming something else.” (John Grimes)
- “The Prābhākhara school [of Mīmāṃsā] says that it involves an element of doubt and postulation’s job is to remove the doubt. [….] Advaita Vedānta says that there is neither a doubt nor a conflict, but merely an inexplicable fact which needs explaining. Presumption is the framing of an explanatory hypothesis on the basis of the knowledge of the fact to be explained.” (Grimes)
- A common example from the literature: “If fat Devaddata [‘the Sanskrit version of John Smith’] does not eat by day, [presumably] he must eat by night.” “Bhāṭṭa [Mīmāṃsaka] authors claim that there is a variety of arthāpatti called śrutāarthāpatti in which one supplies words, not meanings. The example they mention invokes Devadatta again and says: ‘The fat Devadatta does not eat during the day.’ One does not just conclude with the thought that he must eat at night … but rather supplies the actual sentence ‘He eats at night.’ At that point the postulated sentence conveys its meaning.” (Elisa Freschi)
* In other words, a reliable method or means of knowing or knowledge; other means, not all of which are accepted by all the “schools” of philosophy: sense perception, inference, verbal testimony, comparison or analogy, and ”non-cognition” (the last, for the Bhāṭṭa Mīmāṃsakas and Advaita Vedāntins, is the means whereby one knows non-existence or abhāva, for the absence of an object is known due to its non-perception, the presumption here being that non-existence is a separate ontological or metaphysical and epistemological category).
References & Further Reading
- Brandom, Robert B. Making It Explicit: Reasoning, Representing, and Discursive Commitment. Cambridge, MA: Harvard University Press, 1994.
- Duff, R.A. “Who Must Presume Whom to be Innocent of What?” University of Minnesota Law School, Duff (December 17, 2012). Netherlands Journal of Legal Philosophy, Forthcoming; Minnesota Legal Studies Research Paper 12-65. Available: https://ssrn.com/abstract=2190593
- Duff, R.A. and Stuart P. Green, eds. Philosophical Foundations of Criminal Law. Oxford, UK: Oxford University Press, 2011.
- Fletcher, George P. The Grammar of Criminal Law: American, Comparative, and International—Vol. 1: Foundations. New York: Oxford University Press, 2007.
- Freschi, Elisa. “Meanings of Words and Sentences in Mīmāṃsā,” in Alessandro Graheli, ed. The Bloomsbury Research Handbook of Indian Philosophy of Language. London: Bloomsbury Academic, 2020.
- Godden, David M. and Douglas Walton. “A Theory of Presumption for Everyday Argumentation,” Pragmatics & Cognition, 15:2 (2007): 313-346.
- Grimes, John. A Concise Dictionary of Indian Philosophy: Sanskrit Terms Defined in English. Albany, NY: State University of New York Press, 1996 (revised ed.).
- Keating, Malcom. “What is arthāpatti?” The Indian Philosophy Blog (5 June 2015).
- Kock, Christian. Deliberative Rhetoric: Arguing about Doing. Windsor, Ontario: University of Windsor, 2017.
- Laudan, Larry. Truth, Error, and Criminal Law: An Essay in Legal Epistemology. New York: Cambridge University Press, 2006.
- Macagno, Fabrizio and Douglas Walton, “Presumptions in Legal Argumentation,” Ratio Juris, Vol. 25, No. 3 (September 2012): 271-300.
- Rescher, Nicholas. Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective. Pittsburgh, PA: University of Pittsburgh Press, 2001.
- Toulmin, Stephen, Richard Rieke, and Allan Janik. An Introduction to Reasoning. New York: Macmillan Publishing Co., 1984.
- Walton, Douglas N. Plausible Argument in Everyday Conversation. Albany, NY: State University of New York Press, 1992.
- Williams, Michael. Problems of Knowledge: A Critical Introduction to Epistemology. New York: Oxford University Press, 2001.
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