(Kauffeld, F. J. (2003). The ordinary practice of presuming and presumption with special attention to veracity and the burden of proof. In F. H. v. Eemeren, J. A. Blair, C. A. Willard & A. F. Snoeck Henkemans (Eds.), Anyone with a view: Theoretical contributions to the study of argumentation (pp. 133-146). Dordrecht: Kluwer Academic Publishers.)

The Ordinary Practice of Presuming and Presumption with Special Attention to Veracity and the Burden of Proof

Fred J. Kauffeld

Edgewood College

1.         Introduction.

This paper offers an analysis of our ordinary concepts of presuming and presumption and of their corresponding everyday practices. Scholars encounter ‘presumption’ in several contexts: the technical lexicon of the law, as a term of art in studies of argumentation and rhetoric, and occasionally in philosophical discussions. In addition to our inherited technical ideas of presumption, as ordinary persons engaged in interaction with each other, we share plain senses for these terms, and we commonly engage in practices which can truthfully be reported using ‘presuming’ and ‘presumption’ in their everyday meaning. This essay directs attention to the commonsense concepts which ordinary language attaches to these terms.

Scholars have long noticed that presumptions figure importantly in thought and speech, and many have called for more adequate accounts of the topic (Blair, 1980, 2-3; Cronkhite, 1966, 270; Flew, 1976; Rescher, 1977, 28-36; Ullmann-Margalit, 1983, 43; Walton, 1996, 17-18). However, few have undertaken study of presumption from the vantage afforded by our ordinary concepts. Presumption was initially introduced into argumentation and communication theory by Richard Whately as a concept borrowed from the technical vocabulary of law (1963, 112-13). Subsequent learning has favored his approach to the topic. Ullmann-Margalit is representative.

Explication is usually guided by the pre-systematic, everyday usages of the notion under consideration. In the present instance, however, it seems to me that the ordinary-language analysis of the notion of presumption . . . will not get us very far. Guidance in the present case is to be sought rather in the realm of the law (1983, 144).

While granting some priority to analysis of ordinary concepts, this philosopher nevertheless develops an account of presumption based on technical legal concepts, without a glance in the direction of plain understanding and practice.

Jurists have made critically important contributions to our understanding of the work presumptions can do in argumentation, but our studies ought also be informed by analysis of the ordinary act of presuming. To develop this theme, I will first critically examine the conception of presumption scholars have constructed by borrowing from the law; I will then offer an analysis of presumption as plainly understood; and, finally, I will indicate some light which ordinary conceptions throw on problems which our technical ideas about presumption leave in the shadows. Ordinary ideas about presumption may well be in need of improvement, but they arise at a rich nexus in our day-to-day affairs, and, as J. L. Austin famously taught, they comprise an indispensable starting point for inquiry (1961, 133,).

2.         Whatelian Conceptions of Presumption

In the following discussion I refer to prevailing scholarly ideas about presumption as “Whatelian conceptions.” This idiom glosses over some areas disagreement and delineates a concept somewhat clearer than Whately’s own account of the topic. Nevertheless, the title is convenient and recognizes the priority of Whately’s contribution.

Whatelian accounts of presumption are unified by their reliance on legal conceptions. Modeled on the codification of legal argumentation, they identify presumptions as a special kind of inference, based only in part on evidence related to the truth of the inferred proposition and grounded largely on considerations related to the context or circumstances in which the inference is drawn. Presumptive inferences, in this view, are distinguished, not by the truth of their conclusions as warranted by relevant substantive facts, but by the unique strength or force of the inferred conclusion, viz., it is to be accepted unless and until substantiated counter-arguments are adduced against it.[1] At their core Whatelian conceptions define presumptions in relationship to the burden of proof: a presumption, the conclusion draw in an inferential act of presuming, stands good until rebutted by parties who undertake an obligation to provide substantiated objection to its acceptance. Finally, according to Whatelian views, presumptions are inferences which, in the appropriate circumstances and given the appropriate facts, relevant persons are entitled to draw; the burden of proof which falls on persons who refuse to accept a warranted presumption is in the nature of an obligation.   

This technical conception of presumption can be illustrated by the presumption thought by some to favor the status quo. Whately teaches that just as law recognizes a presumption favoring the accused’s innocence, so, too, outside the courts, a standing presumption favors existing institutions, policies, and generally accepted beliefs. Suppose a ban on testing nuclear weapons is the established national policy. Given that fact, in Whately’s view, relevant parties are entitled to infer that this is an acceptable policy, unless and until parties opposed to the ban show that it should be lifted. Presumptive inferences favoring the status quo are not based on reason and evidence purporting to show, e. g., that a test ban is the best policy; rather they rest primarily on data related to the circumstances in which the inference is drawn, e. g., the fact that a ban on nuclear testing is the status quo. Nor does this presumptive inference warrant the conclusion that such a ban is the best or probably the best policy. As Whately notes, it may well be that a better policy could be found. But relevant parties are entitled to presume that the test ban is an acceptable policy, and persons who would deny that have the burden of proof. Of course, whether there is a presumption favoring the status quo and, if so, under what circumstances it obtains are matters of longstanding controversy (Goodnight, 1980, 304-337; Marsh, 1964, 46-53).

Whatelian conceptions of presumption have, I will argue, two deep infirmities: (1) the conditions which define presumption as a received term of art, while similar to our ordinary notions in certain important respects, are neither necessary nor sufficient to presumption in its plain sense, and (2) Whatelian conceptions leave us largely in the dark as to what warrants presumptive inferences. It follows that received scholarly conceptions enable us to identify some, but not all, ordinary presumptions; they incline us to regard as presumptions some inferences which ordinarily would not count as such; and, what is worse, Whatelian conceptions do not clearly identify an essential component of this mode of inference.

Let us begin with the respects in which technical conceptions of presumption concur with our ordinary notions. Notice first that received scholarly conceptions, legal definitions, and commonsense broadly agree that presumptions are a kind of inference. On this point jurists are consistent. As the legal theorists Morton and Hutchison observe, “A presumption occurs when we make a connection between two sets of circumstances such that upon proof of the first set we will believe (and more importantly act as if we believe) the second set also to be proved” (1987,11).[2] On this important point legal conceptions and plain day-to-practices are roughly in accord. To presume something in the course of ordinary thought or conversation is to take it in the broad sense of mentally taking which includes assuming, inferring, concluding, etc (Oxford English Dictionary’s entries for ‘take’ 46-51). If, as reported, Stanley said, ‘Dr. Livingstone, I presume’, he might as well have said ‘Dr. Livingstone, I take it’. Generally ‘take’ may be substituted for ‘presume’ with little distortion in the truth of the utterance paraphrased. The anomalous character of such utterances as *‘I presume that he speaks the truth, but I do not take it that he does’ shows that taking is essential to presuming. A presumption is simply the conclusion taken (or available for the taking) in an act of presuming. We also speak of our reason for presuming this or that, and it would be odd to say *‘Without having any basis for it, I presume that he will arrive at seven’. Although there are some differences in the status scholars assign to presumptions, today most agree with commonsense and the law in treating presumptions as inferences.

A second parallel is that both Whatelian conceptions and ordinary practice accord normative status to presumptions; both recognize that presumptions are related to the distribution of responsibilities, rights, and obligation in conversations, dialogues, discourses, and other human interactions. Whately, himself, is tolerably clear about this point. He takes the defining mark of presumption to be the strength of the presumptive conclusion which “must stand good till some sufficient reason is adduced against it” (1963, 112). By this Whately patently means that persons who would challenge a presumable proposition have an obligation to take up the burden of substantiating their position. Thus he says that they can be called upon to support their views, reason and evidence can be demanded of them (1963, 112-14). Advocates who enjoy the support of a presumption may find it expedient to provide support for their views, but they are under no obligation to do so (116). Unfortunately some rhetorical theorists fail to clearly grasp this aspect of presumption and speak of the burden of proof as simply a practical, and not a necessarily normative, matter (Cronkhite, 1966, 272-73; Sproule, 1976). But scholars who have thought deeply about the matter recognize that presumptions are rooted in responsibilities, obligations and rights. In this respect enlightened Whatelian accounts of presumption tend to be in accord with the nature of commonsense presuming. Connections to normative considerations can be seen across a variety of ordinary presumptions. The presumption that a person is speaking the truth is related to our supposition that she is responsible for the truth of what she says. Likewise, when we presume that we are welcome at an occasion to which we have been invited, our supposition is related to obligations incurred when the invitation was tendered. When we presume something, we take it as something we are entitled to infer, and this entitlement goes with a complement of expectations regarding the responsibilities of others. Correspondingly, when someone behaves presumptuously, in the pejorative sense of the term, that person’s actions lay claim to something to which he or she is not entitled.

While Whatelian conceptions fit commonsense in identifying presumptions as inferences which have a normative bearing, they diverge from our plain understanding and practice in what they regard as the defining feature of presumptions. For Whately and for most subsequent scholars, the defining feature of presumptive inferences is the strength or force of their conclusions: a presumption stands good unless and until it is rebutted by substantial reason and evidence (Baird, 1950; Cronkhite, 1966, 271-5; Eemeren & Grootendorst, 1992, 120-121; Ehninger, 1959, 83-84; Flew, 1984; Gaskins, 1992, 267-69; Goodnight, 1980, 312-14; Hill & Leeman, 1997, 141-43; Perelman & Olbrechts-Tyteca, 1969, 71; Rescher, 1977, 28-34; Sproule, 1976; Ullmann-Margalit, 1983, 147-52 ; Walton, 1996, 18-20; Willard, 1983, 131). Granted, a burden of proof is ordinarily associated with some presumptions, e.g., were a person to make a proposal, it would be presumed that what she had to say might prove to be of interest, and the proposer would incur a related probative obligation. However, outside the courts, the strength which Whatelians take to be the identifying mark of presumption is neither a necessary nor a sufficient condition for the truth of reports that something has been or could be presumed. It is not hard to find ordinary presumptions that do not have this strength, and it is also possible to find inferences which do have that strength but are not presumptions.

The presumption of veracity is a good example of a presumption which does not have the strength received technical conceptions assign to this type of inference. If Smith says (speaking seriously) that he will be home by seven, one would ordinarily presume that he is making a reasonable effort to speak the truth. But certainly this presumption does not stand good until overturned by someone who accepts the burden of proof. Where Smith's wife to respond ‘No, you won’t’, we would not be inclined to suppose that she had incurred a probative obligation. Pressed to defend her denial, she might well answer with no more than ‘I know what I'm talking about, and I am not going to give any further attention to this matter’. Her behavior may be less than fully cooperative, but there are no probative duties here which she has failed to discharge. Or, to muster a second example, suppose Smith advises Jones to invest in Northwest Securities. Here there is reason to presume that he is speaking out of regard for Jones's welfare. However, that presumption may be rejected out of hand without the challenger incurring a probative burden. Jones might say ‘I don’t think you have my best interests at heart in this matter’ and refuse to provide any defense for this rejection. It simply is not the case that ordinary presumptions generally have the weight or force which Whatelians assign to them. So, if we are guided by Whatelian definitions, we might succeed in recognizing some ordinary presumptions, but others will escape our attention.

One might be inclined to respond to the preceding discussion by objecting that students of argumentation are only interested in presumptions which figure importantly in argumentative discourse, and that interest is adequately served by focusing on those inferences which stand good until rebutted. This response treats the strength Whatelians assign to presumptive conclusions a condition sufficient to identify a subset of presumptions; proponents of this idea are committed to the unfortunate view that whenever one of several parties has the burden of substantiating some proposition, a corresponding presumption favors the contradictory or contrary of that proposition. However, persons commonly incur burdens of proof in the absence of any clear presumption favoring a contrary or contradictory proposition. Students are assigned papers in which they are to defend a position. They then have a burden of proof, but in many cases this it would be unreasonable to expect undergraduates to try assail and overturn a thesis which mature scholars presume to be sound. Similarly, committees may be assigned to investigate matters and report recommendations with supporting argumentation regardless of whether there is a presumption favoring alternative recommendations. Or a police officer, interrogating a suspect who has confessed to a crime, may doubt the veracity of the confession and may properly conduct her questioning on the supposition that the suspect has the burden of proof, but in this case there seems to be no clear presumption to the effect that the confession is false. It is evident that Whatelian conceptions do not specify a condition that suffices to identify members of a subclass belonging to the broad class of presumptive inferences. Insofar we rely strictly on Whatelian definitions, some of the suppositions that we identify as presumptions would not ordinarily qualify as instances of that kind of inference.

The analytical poverty of Whatelian conceptions becomes even more apparent when one reflects on their construction (Blair, 1980). A presumption, in this view, is a conclusion which has a certain strength or force: it imposes a burden of proof on those who do not accept it. However, in order to recognize presumptions and to appropriately presume things, one needs to know when a conclusion of this kind is in order. What grounds and principles of inference warrant a presumptive conclusion? We would regard this as a proper question to ask in defining other kinds of inference. We would expect an analysis of causal reasoning to characterize the principle(s) of reasoning capable of justifying a causal conclusion and, also, the grounds on which such conclusions can be drawn (Hart & Honore, 1959, 8-58). We would hold the same expectation for the analyses of inferences by sign, analogy, generalization, and so on. The rules of evidence in law do more than specify the strength of presumptive inferences, they also stipulate the grounds for various legal presumptions. In law presumptions are warranted by corresponding rules. One wonders what are the grounds and principles of reason that generally warrant presumptive inferences in the conduct of day-to-day thought and discourse?

Whately offers no clear answer to this question. He points to several grounds which warrant various presumptions: fairness (1963, 115, 117, 124, 126, 128), eminent authority (128), persistent good judgment (120), the collective agreement of a council or assembly (123), and the first appearance of truth regarding a proposition (131). In addition he notes observes that there are reasonable presumptions against any restriction (125) and against practices which have fallen into neglect (127). But Whately makes no effort to identify what these various grounds for presumption have in common or to otherwise indicate what are the essential bases for this broad class of inference. Subsequent scholarship has offered several candidates as warrants for presumptive inferences. Chaim Perelman and L. Olbrechts-Tyteca's hold that presumptive inferences are warranted by suppositions about what is normal and likely (1969, 71). Nicholas Rescher suggests that presumptions are warranted by their plausibility (1977, 37-41). Others have suggested that presumptions are to be rationally assigned on the basis of the risk and normative acceptability of error (Goodnight, 1980, 315-16; Ullmann-Margalit, 1983, 157-59). Doubtless, some ordinary presumptions are warranted by each of these various considerations, but it is also apparent that each also warrants inferences which do not qualify as presumptions. The upshot is that Whatelian conceptions identify presumptions in terms of the strength or force of what is presumptively concluded but fail to provide a satisfactory view of what generally warrants this kind of inferring in day-to-day affairs.

The strengths and infirmities of Whatelian conceptions of presumption are reflected in the gains and limitations resulting from the use of these concepts in studies of argumentation. Unsurprisingly Whatelian ideas about presumption have been most useful to students of argumentation in areas of research and pedagogy which support rules positing or stipulating presumptions which govern the allocation of probative burdens. Thus the idea of presumptions which implicate probative responsibilities has been found useful in constructing dialogues which model argumentation conducted under idealized and regulated conditions (Rescher, 1977; Walton, 1996). Similarly, Whatelian conceptions of presumption provide the conceptual framework for structuring competitive student debates (Ehninger & Brockriede, 1966; Hill & Leeman, 1997). These applications of the concept share with courtroom argumentation the possibility of establishing rules which prescribe presumptions. However, when we attempt to move from these rarified and regulated contexts to argumentation and discourse in the larger world of practical affairs, we encounter limitations due to the infirmities of Whatelian conceptions. Here are two limitations quickly adumbrated. First, it should be apparent the probative burdens persons incur in arguments are continuous with the larger responsibilities persons incur in serious communication. A speaker’s responsibility for the veracity of her utterances is not unrelated to such obligations she and others might incur to adduce reason and evidence in support of what she says. Pragma-dialectical approaches to the study of argumentation have begun to explore these relationships (Eemeren & Grootendorst, 1990, 6-17), but it is fair to say that we are at some distance from an account of probative responsibilities which is integrated into a larger account of communicative responsibilities. Conceptions of presumption which diverge widely from ordinary practices of presuming can hardly be an asset in addressing this concern. Second, practical, day-to-day arguments are conducted under circumstances which impose less than ideal pragmatic demands on arguers. In most ordinary practical settings it must be possible to discharge a probative obligation within reasonable temporal limits. Idealized models of probative responsibility constructed with stipulated presumptions may fail to cast reliable light on the limits of probative responsibilities undertaken in the hurly burly of day-to-day affairs (Govier, 1997; Govier, 1999; Kauffeld, 1998a, 1999). If our ideas about presumption are to be of help in analyzing and evaluating real world arguments, they need to illuminate how probative responsibilities are incur in practical argumentation. Conceptions of presumption which fail to identify what generally warrants presumptive inference are ill suited to this task.

3.         The Essentials of Presuming

What, then, in ordinary day-to-day thought and discourse is a presumption? And more specifically, what distinguishes this kind of inference from other kinds of inferring? These questions call for analysis of the cognate term with special attention to its coordinate verb presume. Whatever presumptions are, we certainly take them in acts which can in truth be described as presuming something. So, if we determine the truth conditions, i. e., the semantics, of presume, we may infer the essential constituents of acts of presuming, and by that route we may come to identify what presumptions are and the grounds on which they may legitimately be taken.[3]

Ordinary presumptive inferences come to hand by virtue of reasons which have a definite form. The superior presumes that his subordinate will comply rather than risk reprobation for disobedience. Smith might presume upon his friendship with Jones by entering the latter's home, expecting Jones to acquiesce rather than suffer Smith's resentment upon being expelled. In each of these examples something is taken to be the case on the ground that someone has or will have made that the case rather than risk resentment, criticism , painful regret, reprobation, loss of esteem, or even punishment for failing to do so. Where practical considerations preclude relevant calculations based on the risk of resentment, it is hard to see how one can in truth speak of a person’s presuming something. It would be absurd to say that a superior presumes obedience, if he leads his subordinate around on a leash. On the other hand, if the situation is so safe and secure--the parties involved so mutually tolerant--that there is no chance of effective disapproval, then we could not seriously and literally speak of presuming something. If one were to say *‘Smith knows that no one will be upset or bothered if he is late, and it certainly would not cause him any regret, so I presume that he will arrive on time’, one would have packed a somewhat ironic sense into one’s use of ‘presume’.

In presuming that p a person comes to hold that p by reason of the supposition that some person has or will have made it the case that p rather than risk resentment for acting otherwise. A presumption is a conclusion which is held on this basis or is available on the back of such a reason. Presumptions start as propositions which can be made true by what someone does. If Jones says that the game will begin at seven, we may presume that he has made a responsible effort to speak the truth in view of the risk he runs of criticism for failing to do so. Here what is presumed is the proposition that Jones is speaking truthfully. Derivatively we may also presume that the game will start at seven.

The idea of a risk of resentment, which lies at the heart of presuming, is a fairly broad notion. In paradigm cases resentment is the pain, indignation, or agitation felt because of a wrong done to oneself and/or one’s fellows. The primary cases of resentment are instances in which A believes that B has wronged A or A's fellows, and A thereupon feels pain, indignation, etc.[4] Regret is a form of resentment; when a prudent person calculates the risk that her actions may cause resentment, she includes the prospect that, e. g., she would painfully regret having told a lie which besmirched her character. While the primary examples in which persons calculate a risk of resentment involve the possibility of causing persons to experience pain, indignation, etc., often it is not essential that they might actually undergo such feelings. In many cases, we calculate resentment where the action in question merely of a kind which can cause persons to feel wronged, injured, upset, etc. There may be a risk of resentment in lying to people, whether or no they are likely to become emotionally upset by the deception. Calculating the risk of resentment anticipates the various attitudes and forms of conduct by which resentment finds expression. These range diminished regard through sullen anger and indignation to severe retribution and punishment. The risk of resentment, then, is the risk of acting in a way which will be believed to be wrongful and thus is of a kind which can cause pain and so evoke a retributive response.[5]

Presumptions comprise a very large class of inferences. They generate a major portion of the expectations and suppositions we form about the conduct of others. This fact is reflected in the colloquial idioms used to identify presumptions, e.g., ‘He/she would not dare to (to do anything so outrageous as) . . .’. Here one recognizes the familiar form of an inference taken by reason of the risk of resentment. Similarly, a teacher might confidently expect the students in her classes to turn their papers in on time, and when asked for the grounds for her apparent optimism, reply ‘They wouldn’t dare turn them in late; I dock tardy papers a full letter grade and accept no excuses’. Likewise, in some circles, the guests at a wedding party would be expected to dress appropriately. Given the high level of disapproval for inappropriate behavior at such occasions, it might be presumed that no one would dare to appear in anything less than their finest formal garb. In other situations we mark out presumptions with expressions that identify our expectation that a person would not be willing to bear this guilt or that anxiety. These examples suffice as a reminder that presumptions pervade our lives.

Since presumptions are inferences persons make--and can be expected to be make--about each's conduct, they are subject to certain abuses. Accordingly, we have a sense of the term ‘presumptuous’ which designates brash and insolent uses of this form of inference. Presumptuous behavior, in the clearest cases of such effrontery, consists of conduct which is offensive but which the offender expects will be tolerated because no one will dare to give effective expression their own displeasure in view of the prospect that the offender would react with indignation, etc. Thus we regard abusive presumptuous behavior as ‘insolent’ and ‘high handed’ and we ask of it ‘How does he expect to get away with that’ or ‘Just who does she think she is’ or ‘How dare she’.

The preceding analysis seems broad enough to capture clear cases of presuming and presumption, but do its conditions suffice to distinguish this type of inference from other modes of inferring? Several considerations argue for an affirmative answer. It would be odd, paradoxical, to affirm that one’s partner would be unwilling to risk resentment of an appropriate caliber and still refuse to take the corresponding presumption concerning that partner’s behavior. One would pause were one told *‘Mary said she would be here by seven; we know she cannot stand the thought of being late; still I would not take it (would not presume) that she will be on time’. Perhaps this is not a head-on contradiction, but it is at least puzzling enough that one could hardly make sense of the utterance without supposing that some further, unspecified conditions, render problematic Mary's arrival at the designated time, e. g., unknown to her, the public transit on which she depends has broken down.

A second way to grasp the power of our analysis is to notice that it enables us to distinguish between assumptions and presumptions. Assumptions and presumptions are similar in that both are based primarily on suppositions about inferential context rather than on substantive grounds for the truth of the conclusions drawn. However, the fact that these two modes of inference are very different is apparent from the contrasting ways they can be described and evaluated (Kauffeld, 1995, 158-172; Llewelyn, 1962, 163). Assumptions do not have force or strength; it seems odd to speak of a *‘strong’ or *‘powerful assumption’ in favor of something, nor would one seriously and literally compare the force of various assumptions. We assess assumptions as safe or risky. Presumptions, on the other hand, may have force and strength; it is natural to speak of ‘powerful presumption’, and there is nothing odd about the idea of presumptions outweighing each other. These contrasts arise from differences in the grounds on which these two types of inference can respectively be draw. In presuming, a conclusion is taken on the supposition that so and so will see to the truth of the inferred proposition rather than risk resentment for failing to do so. Assumptions, on the other hand, are inferred on the supposition that no relevant party or fact is likely to trouble this conclusion. Accordingly, we describe assumptions as suppositions which are ‘taken for granted’. Our belief that a supposition is uncontroversial--that everything argues for it and nothing against--is something ‘we take upon ourselves’. If that supposition is in error and others challenge our assumption, the grounds on which it was drawn provide no basis for responding to the challenge. So assumptions do not, themselves, have strength or force. On the other hand, we regard presumptions as suppositions ‘we are entitled to’ because it is incumbent upon someone else to make them true. Consequently, presumptions may have force; failure to concur in a presumption may occasion criticism and resentment.[6]

When approaching the roles which presumptions play in discourse and argumentation, it is useful to distinguish between (i) standing presumptions, which are generally available on the supposition that prudent associates will act so as not to occasion foreseeable resentment, and (ii) special presumptions, which an agent deliberately generates by providing others with grounds to presume things favorable to that agent’s ends and projects. Standing presumptions are based on shared beliefs about what constitutes right and proper conduct and on the supposition that our associates are mature and prudent persons. For example, in the absence of indications to the contrary we presume self-reliance on the part of our associates, because we suppose that they would not risk the condescension and loss of respect which foreseeably is directed toward persons who do not exercise a good measure of autonomy (Butler, 1897, 248-51). This standing presumption is generally available; its warrant does not depend on actions designed to generate the appropriate inference. However, in social intercourse persons do not rely just on the presumptions which are generally at hand. Often a person wants others to presume particular things which promote her ends and projects. Suppose, for example, one is trying to borrow an item of value from strangers, one would want them to presume that one will return that object promptly, but, given the circumstances, one would find it necessary to take specific measures designed to warrant that presumption. So, one might voluntarily post a monetary bond to guarantee punctual return of the object one wants to use. Such cases show that, in addition to standing presumptions, persons also recognize special presumptions, which are deliberately engaged by an agent’s acting in ways designed to provide others with reason to presume things which promote that agent’s ends.

Presumptions, then, are inferences taken by reason of the risk of resentment. To presume that p is to suppose that someone will have made it the case that p, rather than hazard the resentment which would be occasioned failing to do so. This analysis marks out a broad class of inferences based on what we believe persons would not dare to do in view of the negative response they might thereby occasion, and it suffices to distinguish that class of inferences from the neighboring class of assumptions, which are based on our beliefs about what propositions others will accept as uncontroversial.

4.         Presumptions, Speech Acts, and the Burden of Proof

It should now be apparent that our ordinary concept of presumption and corresponding inferential practices are sufficiently clear and complex to warrant serious scholarly attention, but it can seem that these “pre-theoretical” ideas diverge so far from received scholarly conceptions as to raise questions about their value in studies of argumentation. More specifically, it might seem that ordinary concepts decouple presumption and burdens of proof and, so, forfeit interest from argumentation theorists. By way of concluding this essay, I will try to indicate that, contrary to this erroneous notion, analysis of ordinary presuming enables us to better identify how pertinent obligations are distributed and function in argumentation.  

First, our analysis of plain presuming supports an account of how argumentatively significant obligations are incurred in a variety of speech acts. In an interesting account regulated argumentative dialogues, Douglas Walton classifies presumption as a kind of speech act (Walton, 1996; Walton, 1993). This idea is mistaken, but Walton’s thinking does point toward important connection between speech acts and presumptions in argumentative discourse. It is difficult, at best, classify ordinary presuming as a speech act. Granted, acts of presuming may be explicitly performed by saying such things as ‘I presume that p’. However, if there is any stuffing in our talk about “speech acts,” it essential to the performance of a speech act that some message source say something (or do something that is virtually equivalent), but ordinary presumptions are often undertaken tacitly, without saying anything. Still, Walton rightly senses that many presumptions of interest to argumentation theorists are generated in the performance of speech acts.

As I have argued in detail elsewhere, a broadly Gricean analysis of utterance-meaning shows that speech acts are performed by speakers deliberately and openly undertaking obligations and, thereby, generating special presumptions (Kauffeld, 2001a, 2001b; Stampe, 1967). In the simple case of seriously saying something a speaker openly undertakes responsibility for the truthfulness of her utterance and, thereby, engages a special presumption of veracity. In speech acts on the order of proposing and accusing, speakers enlarge their commitment to truthfulness so as to include a probative obligation to argumentatively support what they say. By strategically incurring burdens of proof, accusers and proposers generate presumptions favorable to securing consideration for their argumentation (Goodwin, 2001b; Kauffeld, 1998b). In short, a clear understanding of ordinary presumption supports theoretical analysis of how burdens of proof and other argumentatively significant obligations are generated in day-to-day argumentation.

Second, this capacity to explicate the pragmatics of presumption and probative obligations in speech acts enriches critical interpretation and evaluation of real world public argumentation. Studies of the Lincoln-Douglas Debates, of argumentation in the contest over ratification of the United States Constitution, and of forensic advocacy in the O. J. Simpson trial show that a grasp of ordinary presumptions enables precise interpretation of the strategic genesis of probative burdens in complex and critically significant public discourses (Goodwin, 2001a; Kauffeld, 1994, 2002). Moreover, since the content of an obligation is often determined by the transaction in which the obligation is undertaken, when we can critically unpack the communicative transactions in which probative burdens are generated, we may learn what advocates must show to discharge those obligations, and we gain insight into the potential persuasive force of their argumentation (Kauffeld, 1998a, 2002). Far from decoupling presumption and burden of proof, analysis of presuming as ordinarily practiced supports close study of the complex connections between presumptions and probative obligations in real world discourse.

I have been arguing that analysis of our ordinary concepts of presuming and presumption contributes importantly to studies of argumentation. Part of my discussion critically essays limitations of scholarly notions about presumptions which derive primarily from legal constructions. I do mean to suggest that argumentation theorists should abandon study of how jurists construe presumptions and probative burdens; on the contrary, I think that more remains to be learned from recent work by legal scholars (for example, see: Allen, 1994; Gaskins, 1992). But I hope to have shown that analysis of presumption as ordinarily conceived provides correctives to received Whatelian conceptions of this kind of inference and enables us to better understand the genesis of discursive obligations in real world argumentation. Much work on presumption in argumentation and discourse generally remains to be done. We need to understand how presumptive inference can serve as a basis for trust, more study needs to be devoted to the presumptions engaged in specific kinds of speech such as testifying and praising, and we have just begin to understand the various functions of presumption in defeasible argumentation. But we have now reached the present essay’s legislated limits.

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