Abstract
It is commonly known that presumption rules are closely linked to action [1]. Although the notion of presumption and its counterpart “burden of proof” have also frequently been applied in contexts that are at least seemingly unrelated to decisions concerning how to act, a natural way to read presumption rules is that their prime aim is to guide action. For instance, to say that there is a presumption of equality is to imply that cases should be treated as equals unless a relevant difference between them has been shown. Similarly, a presumption of innocence claims that the accused person should be treated as not guilty unless sufficient evidence for guilt has been presented. Because of the action-guiding and normative character of presumption rules one could say that, at least in many cases, they are obligations.
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References
I would like to thank Marko Ahteensuu, Joseph Almog, Tommaso Bertolotti, Olli Koistinen, Eerik Lagerspetz, Elena Lisanyuk, Lorenzo Magnani, Thomas Magnell, Rosa Rantanen, Arto Repo, Juho Ritola, Andrei Rodin, and Helena Siipi for their helpful comments. Presumption and action, see e.g. Katzner, L.I.: Presumptivist and Nonpresumptivist Principles of Formal Justice. Ethics 81, 253–258 (1971); Ullmann-Margalit, E.: On Presumption. The Journal of Philosophy 80, 143–163 (1983); Räikkä, J.: Burden of Proof Rules in Social Criticism. Argumentation 11, 463–477 (1997); Hahn, U., Oaksford, M.: The Burden of Proof and Its Role in Argumentation. Argumentation 21, 39–61 (2007).
The presumption of equality is discussed e.g. by Benn, S.I., Peters, R.S.: The Principles of Political Thought, pp. 127–128. The Free Press, New York (1959); Frankena, W.K.: The Concept of Social Justice. In: Brandt, R. (ed.) Social Justice, pp. 1–29. Prentice-Hall, Englewood Cliffs (1962), esp. 10–13; Feinberg, J.: Social Justice, pp. 101–102. Prentice-Hall, Englewood Cliffs (1973); Rabinowicz, W.: The Presumption of Equality. A paper presented at the Symposium on Priority, Equality, and Utility. University of Turku (October 14, 2011).
Some authors seem to operate without this distinction. Hahn and Oaksford argue that burden of proof may impose a “duty to generate” a certain “degree of confidence in the adjudicator’s mind”. The Burden of Proof and Its Role in Argumentation, 43.
See e.g. Raz, J.: Reasons: Practical and Adaptive. Oxford Legal Studies Research Paper 12, 1–23 (2007), esp. 2. For a discussion, see Tadros, V.: Rethinking the Presumption of Innocence. Criminal Law and Philosophy 1, 193–213 (2007).
Dare, T., Kingsbury, J.: Putting the Burden of Proof in Its Place: When Are Differential Allocations Legitimate? The Southern Journal of Philosophy 46, 503–518 (2008), esp. 507.
Ullmann-Margalit: On Presumption, 148–149.
Similarly, a proposition can be “accepted as true” without it being the case that the proposition is believed. Raz: Reasons: Practical and Adaptive, 2. See also Cargile, J.: On the Burden of Proof. Philosophy 72, 59–83 (1997), esp. 59.
Here is an alternative formulation of the presumption of risk: A new mine is to be considered environmentally safe if and only if the company that aims to start mining operations provides sufficient evidence that the mines are environmentally safe.
See e.g. Ullmann-Margalit: On Presumption, 159–160; Walton, D.N.: Burden of Proof. Argumentation 2, 233–254 (1988), esp. 247; Hahn, Oaksford: The Burden of Proof and Its Role in Argumentation, 55.
Dare, Kingsbury: Putting the Burden of Proof in Its Place: When Are Differential Allocations Legitimate?, 509.
Cf. Hahn, Oaksford: The Burden of Proof and Its Role in Argumentation, 44.
Ibid.
See e.g. Varul, P., Avi, A., Kivisild, T.: Restrictions on Active Legal Capacity. Juridica International 9, 99–107 (2004).
Ullmann-Margalit: On Presumption, 159.
Walton: Burden of Proof, 242.
Hahn, Oaksford: The Burden of Proof and Its Role in Argumentation, 45.
The authorities may err. But this does not mean that “uncertainty” is involved in individual cases.
Before a person chooses her profession, she should check whether the values that are supposed to be served by that profession are consistent with her own values. (Pacifists should not choose a career in the army. A person who opposes a right to abortion should not choose to be a gynecologist who has to carry out abortions.)
The same goes for the presumption of competence (and for other usual presumptions). If the legislative body that institutionalized the presumption of competence used wrong utilities, it may have led to a wrong way to regulate the amount and nature of the evidence needed.
Frankena, W.K.: Some Beliefs about Justice. The Lindley Lecture, p. 8. University of Kansas Press, Kansas (1966).
For a discussion, see e.g. Buchanan, A.: Distributive Justice. In: Becker, L.C., et al. (eds.) Encyclopedia of Ethics, pp. 655–661. Garland Publishing Company, New York (1992), esp. 655.
Feinberg: Social Justice, 102.
Ullmann-Margalit: On Presumption, 161.
Walton: Burden of Proof, 238, cf. 244.
Cf. Alfred Mele’s discussion about confidence thresholds in his Self-Deception Unmasked, pp. 34–35. Princeton University Press, Princeton (2001).
Notice that the presumption of personal danger as described here does not involve “if and only if” formulation as do most of the other examples considered here.
We may have a role-based moral duty to rely on the presumption of innocence for instance in our family relations. Arguably, something is wrong if a person concludes very easily that her family members are guilty of this and that.
For a discussion, see e.g. Räikkä, J.: Global Justice and the Logic of the Burden Proof. Metaphilosophy 36, 228–239 (2005).
Ullmann-Margalit: On Presumption, 158.
Walzer, M.: The Moral Standing of States: A Response to Four Critics. Philosophy & Public Affairs 9, 209–229 (1980), esp. 212.
See e.g. Beitz, C.: Bounded Morality: Justice and the State in World Politics. International Organization 33, 405–424 (1979).
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Räikkä, J. (2014). Presumptions and Obligations. In: Social Justice in Practice. Studies in Applied Philosophy, Epistemology and Rational Ethics, vol 14. Springer, Cham. https://doi.org/10.1007/978-3-319-04633-4_4
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