Presumptions and Burdens of Proof
Presumptions and Burdens of Proof
An Anthology of Argumentation and the Law
In the last fifty years, the study of argumentation has become one of the most exciting intellectual crossroads in the modern academy. Two of the most central concepts of argumentation theory are presumptions and burdens of proof. Their functions have been explicitly recognized in legal theory since the middle ages, but their pervasive presence in all forms of argumentation and in inquiries beyond the law—including politics, science, religion, philosophy, and interpersonal communication—have been the object of study since the nineteenth century.
However, the documents and essays central to any discussion of presumptions and burdens of proof as devices of argumentation are scattered across a variety of remote sources in rhetoric, law, and philosophy. Presumptions and Burdens of Proof: An Anthology of Argumentation and the Law brings together for the first time key texts relating to the history of the theory of presumptions along with contemporary studies that identify and give insight into the issues facing students and scholars today.
The collection’s first half contains historical sources and begins with excerpts from Aristotle’s Topics and goes on to include the locus classicus chapter from Bishop Whately’s crucial Elements of Rhetoric as well as later reactions to Whately’s views. The second half of the collection contains contemporary essays by contributors from the fields of law, philosophy, rhetoric, and argumentation and communication theory. These essays explore contemporary understandings of presumptions and burdens of proof and their role in numerous contexts today. This anthology is the definitive resource on the subject of these crucial rhetorical modes and will be a vital resource to all scholars of communication and rhetoric, as well as legal scholars and practicing jurists.
Fred J. Kauffeld (1942–2017) was professor and chair of the Department of Communication Arts at Edgewood College and coeditor of Texts in Context: Critical Dialogues on Significant Episodes in American Political Rhetoric.
James B. Freeman is professor of philosophy at Hunter College, City University of New York. He is the author of Argument Structure: Representation and Theory, Acceptable Premises: An Epistemic Approach to an Informal Logic Problem, Thinking Logically: Basic Concepts for Reasoning, and Dialectics and the Macrostructure of Arguments.
Lilian Bermejo-Luque is associate professor in the Department of Philosophy at the University of Granada. She is the author of Giving Reasons: A Linguistic-Pragmatic Approach to Argumentation Theory.
Contents
Preface
Introduction
Part 1. Historical Selections
Chapter 1. Dialectical Propositions (from Topics) by Aristotle
Chapter 2. Presumptions in Legal Argumentation: From Antiquity to the Middle Ages by Hanns Hohmann
Chapter 3. Of the Burthen of Proof: On Whom Shall It Lie? by Jeremy Bentham
Chapter 4. Presumptions and Burden of Proof by Richard Whately
Chapter 5. The Sportsman’s Rejoinder by Richard Whately
Chapter 6. The Burden of Proof by Alfred Sidgwick
Chapter 7. The Burden of Proof by James B. Thayer
Chapter 8. On Presumption and Burden of Proof by C. P. Ilbert
Part 2. Contemporary Developments
Chapter 9. The Anatomy of a Dispute by Douglas Ehninger and Wayne Brockriede
Chapter 10. A Pragma-Dialectical Analysis of the Burden of Proof by Frans H. van Eemeren and Peter Houtlosser
Chapter 11. The Juridical Roots of Presumptions and Burdens of Proof by Richard Gaskins
Chapter 12. Inertia in Argumentation: Nature and Reason by James Crosswhite
Chapter 13. The Liberal-Progressive and Conservative Presumptions: On Deliberation, Debate, and Public Argument by G. Thomas Goodnight
Chapter 14. Rhetorical and Epistemological Perspectives on Rescher’s Account of Presumption and Burden of Proof by Fred J. Kauffeld and James B. Freeman
Chapter 15. The Significance of Presumptions in Informal Logic by James B. Freeman
Chapter 16. Analyzing Presumption as a Modal Qualifier by David Godden
Chapter 17. The Speech Act of Presumption by Reversal of Burden of Proof by Douglas Walton
Chapter 18. Some Presumptions by Edna Ullmann-Margalit
Chapter 19. On the Relationship between Presumptions and Burdens of Proof by Lilian Bermejo-Luque
Chapter 20. A Rhetorically Oriented Account of Presumption and Probative Obligations in Normative Pragmatic Terms by Fred J. Kauffeld
A Bibliography for Argumentation Theorists
Works Cited
About the Authors
Index
