Abstract
In their extensive overview of various concepts of presumption Godden and Walton recognise “the heterogeneous picture of presumptions that exists in argumentation theory today” (Godden and Walton in Pragmat Cogn 15:333, 2007). I argue that this heterogeneity results from an epiphenomenal character of the notion of presumption. To this end, I first distinguish between three main classes of presumptions. Framework presumptions define the basic conditions of linguistic understanding and meaningful conversation. The “presumption of veracity” (Kauffeld) is their paradigm case. I argue that such presumptions are satisfactorily covered by the Principle of Charity (Davidson, Quine), or else Gricean maxims or satisfaction conditions for speech acts (Austin, Searle). Formal presumptions are general presumptive rules of argument, theorised as topoi or acceptable inference warrants, including institutional warrants (“If not proven guilty, then innocent”). Material presumptions are acceptable outcomes of nested or outsourced arguments, which entitles arguers to use them as acceptable premises or opinions (endoxa) in further arguments without the typical burden of proof. If this is correct, then the study of presumption always collapses into the study of other, likely more fundamental, concepts. Does it render presumptions, by Occam’s Razor, altogether redundant in argumentation theory? I tentatively answer this question from a consistently conversational perspective on argumentation; I argue that the pragmatic grounds for presumptions are to be found in the conditions for speech act performance in the institutional social world, as developed by Searle.
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Notes
Of course—and hopefully!—many of the accused who are “presumed innocent” during the trial are in the end found guilty. The point is that while the particular conclusion of a presumption (“Smith is presumably innocent”) is by definition defeasible and fails to hold once the verdict is issued (either way it goes: for Smith is then found guilty, or found—and not merely presumed—innocent), the very presumptive rule (“any accused is innocent until proven guilty”) holds and is in principle incontrovertible throughout a given legal system.
Unless s/he was 65 when disappeared, then it’s 5 years; or unless s/he disappeared in an air or sea disaster, for then it’s a mere 6 months. See art. 29–32 of the Polish Civil Code.
Such as the one in California, itself based on the Napoleon’s Civil Code of 1803 (art. 720–722): “if the two persons are under fifteen, the older is presumed to have survived; if over sixty, the younger. If they are between fifteen and sixty and the sexes are different, the male is presumed to have survived; if the sexes are the same, then the survival of the younger is presumed. If one is under fifteen and the other over sixty, the former is presumed to have survived. If one is under fifteen or over sixty and the other is between those ages, the presumption is that the latter survived.” (Statutory solutions… 1936, p. 346, n. 17).
Another example, discussed inter alia by Rescher (2006, passim), is the presumption of normalcy or typicality: that things will generally go as they have been going, that nothing out of ordinary will typically happen.
To the contrary: “He who asserts has the burden of proof” is one of the commonest principles of the burden of proof.
Beatrice Kobow suggested that presumptions might be well grasped in the framework of Hans Vaihinger’s Philosophy of ‘As If’ published in German in 1911 (English transl. 1924; see e.g., Fine 1993). Indeed, this would not be without precedence. For instance, in the 1930s a prominent American legal scholar, Lon Fuller, treated presumptions as a subset of “legal fictions”, drawing extensively on Vaihinger’s concepts (Fuller 1967 [1930–1931]).
Ullmann-Margalit limits her account of presumption to practical reason. Many others, including Rescher and Freeman, see presumption as an inevitable element of theoretical reason alike.
There are more examples of this attitude. Another legal scholar begins his paper—entitled ominously “Presumptions: 350 Years of Confusion and it has Come to this”—with a flat-out defeatist tone: “Here is the bottom line on presumptions. They are inextricably confused devices used to move burdens from one party to another and to allow judges to comment on the value of evidence” (Fenner 1992, p. 383). What’s wrong? Again, one crucial issue is definitional: “In the area of presumptions, it seems to be particularly important to define terms. To understand true presumptions, one must be able to distinguish them from other concepts to which the word is often wrongly applied. That courts, legislatures, and regulatory agencies alike misapply the label ‘presumption’ leads to a blurring of the concepts” (Fenner 1992, p. 396).
Liars, contrary to bullshitters, are serious speakers in that they do have concern for accuracy and truth, but they choose to go against them (Frankfurt 2005). They thus pass the criterion of seriousness, but fail on the truthfulness.
Quine’s example is that of a native pointing at a rabbit and saying “Gavagai.” Davidson’s is a German called Kurt, saying “Es regnet” when it’s raining. By setting them alongside, I do not mean to imply that their conceptions of charity converge in all detail or that Davidson merely extended Quine’s earlier idea. In fact, Davidson’s account is original and better developed.
Dennett (1971) uses the term “assumption of rationality” which, while serving a specific theoretical function in his “intentional stance” towards belief and desire ascription, bears significant resemblance to what others theorise as the principle of charity.
The chief distinction between assumptions and presumptions, the way I see it, is that the former are freer to be made. One is free, without terminological contradiction, to “assume that 2 × 2 = 5” in a reductio ad absurdum argument. By contrast, one cannot freely “presume” anything without some publicly accountable grounding (see below; also, Godden forth.; Plumer 2016). In their arguments, Davidson, Grice or Stalnaker are largely insensitive to such distinctions.
From 1967 till 1988 (Grice’s death) – when they published their most important work in this area – Grice and Searle were colleagues at the Department of Philosophy of the University of California at Berkeley. In 1981 also Donald Davidson joined the faculty there.
Grice explicitly speaks of “the specific expectations or presumptions connected with” maxims (1975, p. 47), but sometimes interchangeably uses the term “assumption” in apparently the exact same sense (see, e.g., pp. 49 and 57, where “expected”, “assumed” and “presumed” are clearly used synonymously). The nature of this connection is that based on the broadly reasonable (rational) status of the Principle and the maxims, interlocutors presume that they are mutually observing them, and conversationally act (both in terms of speaking and interpreting) in a way that is “consistent with this presumption” (Grice 1975, pp. 49-50).
For precision: “utterance meaning” is Kauffeld’s own term. Grice (1989), instead, carefully distinguished between “utterer’s meaning” and “sentence meaning”. Regardless, there is a long-standing discussion over the exact relations between Grice’s theory of meaning and of conversational implicature (see Levinson 1983, esp. pp. 100–101, 112–113). The crucial connection is precisely the exploration of intricate processes involved in inferences between the sentence meaning (what is said) and the utterer’s meaning (what is implicated, conveyed, or communicated). These processes, as explicitly laid out in Grice (1975), are inescapably grounded in some mutually recognisable presumptions (assumptions, expectations), which I term here framework presumptions.
When discussing presumption rules within the inferential approach to presumptions, Godden and Walton claim the following: “Such a picture also allows for the inclusion of defeasible arguments as presumption-raising by representing their warrant as a presumption rule. For example, all schematic arguments (Walton 1992b; 1996) can be represented as presumption-raising on our model simply by treating the warrants operative in the different argument schemes as presumption rules.” (2007, p. 336). Note the universal quantifier (“all”) and the qualification (“simply by”).
Hansen (2003, pp. 5-6), when discussing the 19th-century treatment of presumptions by Sidgwick, and later by Rescher, invokes the latter’s distinction between conventional dialectics (as in explicitly rule-governed legal procedures) and natural dialectics (as in ordinary argumentative exchanges). Similarly, Freeman distinguishes between “arbitrary or stipulative presumptions […] laid down by judicial fiat” and “‘natural’ or ‘rational’” presumptions “outside formal legal proceedings” (2005, p. 23).
American jurists debating this problem back in the 1930 s agreed “that what is here needed is a ‘rule for the disposition of property’” (Statutory solutions… 1936, p. 349).
According to a US Supreme Court decision in the Greer v. United States case, 245 U.S. 559, 561 (1918): “A presumption upon a matter of fact, when it is not merely a disguise for some other principle, means that common experience shows the fact to be so generally true that courts may notice the truth.” (quoted in Allen 1981, p. 862, n. 98).
Stalnaker himself, similarly to Grice, is hopelessly insensitive to the distinctions between presuppositions, assumptions and presumptions. As the fine distinctions seem tangential to his chief argument, he uses them almost interchangeably. The exception is when he talks about a hearer’s “presumption that the speaker presupposes that…” (1974, p. 57). Presumption would be then some kind of a pragmatic act/inference/attitude on the part of the hearer attributing another (semantic or pragmatic) act or attitude, that of presupposing, to the speaker. See fn. 12 and fn. 14.
Compare this with Allen, who, speaking in the specific context of legal presumptions governing the burdens of producing evidence in legal proceedings, notes: “Placing a burden of production on a party does provide a sanction for failing to produce evidence – dismissal or a directed verdict – but the sanction is a function of the meaning of a burden of production rather than an independent attribute of presumptions.” (Allen 1981, p. 860).
When they discuss various ways to defeat presumptive inferences, Godden and Walton start with the one where we rebut “the antecedent facts, or presumption raising conditions”: “Since these claims work as assertions of fact in an argument, no special theory of how they are to be defeated is required here; the normal rules of the argument would apply” (2007, p. 338). My argument can be seen as extrapolating their claim to other uses of presumption in argumentation. If this argument can indeed be generalised, then no special theory of presumption is required; the normal rules of argument – or any other reasonable conversation – apply. I hope to have showed what these rules are.
Importantly, this priority can be understood in two senses: historically (diachronically) and conceptually (synchronically). In the obvious historical sense, Aristotle theorised about acceptable premises before Freeman, about presumptive inference schemes before Walton, etc. Conceptually speaking, for instance, Davidson’s notion of charity or Searle’s satisfaction conditions for speech acts belong to a more complete and powerful account of meaning and language than Kauffeld’s presumption of veracity. Both senses, however, warrant a kind of reductionist argument I have been advancing here.
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Acknowledgements
Earlier versions of this paper were presented: At the “Conference on Presumptions, Presumptive Inferences and Burden of Proof”, Department of Philosophy, University of Granada, 26-28 April 2016; I would like to thank Lilian Bermejo-Luque and Cristina Corredor; at the John Searle Center for Social Ontology, University of California, Berkeley, 7 September 2016, where I am particularly indebted to John Searle and Jennifer Hudin; at the “Winter Symposium Norms and Knowledge – Epistemological Concerns of Social Ontology”, Department of Philosophy, University of Leipzig, 1-2 December 2016, where my special thanks go to Beatrice Kobow. The paper has benefitted immensely from discussions with those mentioned above, as well as all other participants to these events. Presumably, it is better now. This work has been supported by a grant of the Portuguese Foundation for Science and Technology (FCT): PTDC/MHC-FIL/0521/2014.
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Lewiński, M. Argumentation Theory Without Presumptions. Argumentation 31, 591–613 (2017). https://doi.org/10.1007/s10503-017-9421-2
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DOI: https://doi.org/10.1007/s10503-017-9421-2