On the strength of presumptions
Traditionally, a presumption is a dialogically privileged, yet defeasible proposition that allocates the burden of
proof to a party who challenges it. This paper investigates the strength of presumptions. First, it explains how ‘strength’
contributes to defining the concept of presumption. Second, it provides an overview of (contextual, justificatory, and deontic)
factors determining a presumption’s strength. Finally, it analyses the predominant view that defines strength in terms of the
Challenger’s burden of proof: the stronger (weaker) the presumption p, the more (less) difficult it is to prove
non-p. I argue that the latter proposal applies only to practical presumptions, and that strength is
conceived differently for cognitive presumptions.
Article outline
- 1.Introduction
- 2.Strength in presumption theory
- 2.1Conceptual research
- 2.2Strength research
- 3.What determines the strength of a presumption?
- 3.1Contextual factors
- 3.1.1The dialogue’s collective goal
- 3.1.2The dialogue’s cooperativeness
- 3.1.3Risks, stakes, and background information
- 3.1.4The intended audience
- 3.2Justificatory factors
- 3.2.1The basic fact
- 3.2.2The presumptive rule
- 3.3Deontic factors
- 4.Cognitive presumptions and the weight of rebuttal
- 5.Conclusion
- Acknowledgments
- Notes
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References