In this paper a theoretical definition that helps to explain how the logical structure of legal presumptions is constructed by applying the Carneades model of argumentation developed in artificial intelligence. Using this model, it is shown how presumptions work as devices used in evidentiary reasoning in law in the event of a lack of evidence to assist a chain of reasoning to move forward to prove or disprove a claim. It is shown how presumptions work as practical devices that may (...) be useful in cases in which there is insufficient evidence to prove the claim to an appropriate standard of proof. (shrink)

This book identifies 25 argumentation schemes for presumptive reasoning and matches a set of critical questions to each.

Dialectical foundationalists, including Adler, Brandom, Leite, and Williams, claim that some asserted propositions do not require defense just because an interlocutor challenges them. By asserting such a proposition, the speaker shifts the burden of proof to her interlocutor. Dialectical egalitarians claim that all asserted propositions require defense when challenged. I elucidate the dispute between dialectical foundationalists and egalitarians, and I defend a broadly egalitarian stance against several prominent objections.

There was a long tradition in philosophy according to which good reasoning had to be deductively valid. However, that tradition began to be questioned in the 1960’s, and is now thoroughly discredited. What caused its downfall was the recognition that many familiar kinds of reasoning are not deductively valid, but clearly confer justification on their conclusions. Here are some simple examples.

The New Rhetoric is founded on the idea that since “argumentation aims at securing the adherence of those to whom it is addressed, it is, in its entirety, relative to the audience to be influenced,” says Chaïm Perelman and L. Olbrechts-Tyteca, and they rely, in particular, for their theory of argumentation on the twin concepts of universal and particular audiences: while every argument is directed to a specific individual or group, the orator decides what information and what approaches will achieve (...) the greatest adherence according to an ideal audience. This ideal, Perelman explains, can be embodied, for example, "in God, in all reasonable and competent men, in the man deliberating or in an elite.” Like particular audiences, then, the universal audience is never fixed or absolute but depends on the orator, the content and goals of the argument, and the particular audience to whom the argument is addressed. These considerations determine what information constitutes "facts" and "reasonableness" and thus help to determine the universal audience that, in turn, shapes the orator's approach. /// The adherence of an audience is also determined by the orator's use of values, a further key concept of the New Rhetoric. Perelman's treatment of value and his view of epideictic rhetoric sets his approach apart from that of the ancients and of Aristotle in particular. Aristotle's division of rhetoric into three genres–forensic, deliberative, and epideictic–is largely motivated by the judgments required for each: forensic or legal arguments require verdicts on past action, deliberative or political rhetoric seeks judgment on future action, and epideictic or ceremonial rhetoric concerns values associated with praise or blame and seeks no specific decisions. For Aristotle, the epideictic genre was of limited importance in the civic realm since it did not concern facts or policies. Perelman, in contrast, believes not only that epideictic rhetoric warrants more attention, but that the values normally limited to that genre are in fact central to all argumentation. "Epideictic oratory," Perelman argues, "has significant and important argumentation for strengthening the disposition toward action by increasing adherence to the values it lauds.” These values are central to the persuasiveness of arguments in all rhetorical genres since the orator always attempts to "establish a sense of communion centered around particular values recognized by the audience.”. (shrink)

The paper considers contemporary models of presumption in terms of their ability to contribute to a working theory of presumption for argumentation. Beginning with the Whatelian model, we consider its contemporary developments and alternatives, as proposed by Sidgwick, Kauffeld, Cronkhite, Rescher, Walton, Freeman, Ullmann-Margalit, and Hansen. Based on these accounts, we present a picture of presumptions characterized by their nature, function, foundation and force. On our account, presumption is a modal status that is attached to a claim and has the (...) effect of shifting, in a dialogue, a burden of proof set at a local level. Presumptions can be analysed and evaluated inferentially as components of rule-based structures. Presumptions are defeasible, and the force of a presumption is a function of its normative foundation. This picture seeks to provide a framework to guide the development of specific theories of presumption. (shrink)

Although in some contexts the notions of an ordinary argument’s presumption, assumption, and presupposition appear to merge into the one concept of an implicit premise, there are important differences between these three notions. It is argued that assumption and presupposition, but not presumption, are basic logical notions. A presupposition of an argument is best understood as pertaining to a propositional element (a premise or the conclusion) e of the argument, such that the presupposition is a necessary condition for the truth (...) of e or for a term in e to have a referent. In contrast, an assumption of an argument pertains to the argument as a whole in that it is integral to the reasoning or inferential structure of the argument. A logical assumption of an argument is essentially a proposition that must be true in order for the argument aside from that proposition to be fully cogent. Nothing that is both comparable and distinguishing can be said about presumptions of arguments. Rather, presumptions of arguments are distinctively conventional; they are introduced through conventional rules (e.g., those that concern how to treat promises). So not all assumptions and not all presuppositions of arguments are presumptions of those arguments, although all presumptions of arguments are either assumptions or presuppositions of those arguments. This account avoids making the (monological) notion of presumption vacuous and dissolving the distinction between assumption and presumption, which is a vulnerability of alternative views such as Hansen’s and Bermejo-Luque’s, as is shown. (shrink)

This paper explores two persistent questions in the literature on presumptions: the place and the nature of presumptions in law and legal argumentation. These questions were originally raised by James Bradley Thayer, one of the masters of the Law of Evidence and the author of the classic chapter devoted this subject in A preliminary treatise on Evidence. Like Thayer, I believe that these questions deserve attention. First the paper shows that the connection between presumptions and argumentation is a constant feature (...) in the literature on presumptions, since its foundation in the Middle Ages to modern times. James Bradley Thayer was probably the last jurist who clearly saw that presumptions belong to argumentation. Second, the paper examines two sources of controversy in the language of presumptions. First, “presumption” is an ambiguous word in the legal discourse. As a result, it is almost impossible to provide a clear and succinct answer to the question “What is a presumption?”. Second, there are at least four reconstructions of the concept of presumption whose merits and shortcomings are relevant to explore. The analysis presented here may be of interest for legal and non-legal scholars and, hopefully, it may help to shed light on the possibilities and limits of an interdisciplinary dialogue about presumptions. (shrink)

Fallacies and Argument Appraisal presents an introduction to the nature, identification, and causes of fallacious reasoning, along with key questions for evaluation. Drawing from the latest work on fallacies as well as some of the standard ideas that have remained relevant since Aristotle, Christopher Tindale investigates central cases of major fallacies in order to understand what has gone wrong and how this has occurred. Dispensing with the approach that simply assigns labels and brief descriptions of fallacies, Tindale provides fuller treatments (...) that recognize the dialectical and rhetorical contexts in which fallacies arise. This volume analyzes major fallacies through accessible, everyday examples. Critical questions are developed for each fallacy to help the student identify them and provide considered evaluations. (shrink)

Dialogical egalitarianism is the thesis that any proposition asserted in dialogue, if questioned, must be supported or else retracted. Dialogical foundationalism is the thesis that some propositions are privileged over this burden of proof, standing in no need of support unless and until support for their negation is provided. I first discuss existing arguments for either thesis, dismissing each one of them. Absent a successful principled argument, I then examine which thesis it is pragmatically more advantageous to adopt in analytic (...) philosophical dialogue. This requires identifying the goal of such dialogue, to the attainment of which the thesis would be so advantageous. To identify this goal, I draw on Douglas Walton’s typology of dialogues for an analysis of the types of dialogue of 110 representatively selected journal articles in current analytic philosophy. 95% of articles are found to instantiate persuasion dialogue. In light of the thus prevalent goal of persuading one’s opponent, I argue that the adoption of dialogical egalitarianism in analytic philosophical dialogue is pragmatically inescapable. (shrink)

This book provides a systematic analysis of many common argumentation schemes and a compendium of 96 schemes. The study of these schemes, or forms of argument that capture stereotypical patterns of human reasoning, is at the core of argumentation research. Surveying all aspects of argumentation schemes from the ground up, the book takes the reader from the elementary exposition in the first chapter to the latest state of the art in the research efforts to formalize and classify the schemes, outlined (...) in the last chapter. It provides a systematic and comprehensive account, with notation suitable for computational applications that increasingly make use of argumentation schemes. (shrink)

lt is now commonplace in fallacy inquiry for many of the traditional informal fallacies to be viewed as reasonable or nonfallacious modes of argument. Central to this evaluative shift has been the attempt to examine traditional fallacies within their wider contexts of use. However, this pragmatic turn in fallacy evaluation is still in its infancy. The true potential of a contextual approach in the evaluation of the fallacies is yet to be explored. I examine how, in the context of scientific (...) inquiry, certain traditional fallacies function by conferring epistemic gains upon inquiry. Specifically, I argue that these fallacies facilitate the progression of inquiry, particularly in the initial stages ofinquiry when the epistemic context is one of uncertainty. The conception of these fallacies that emerges is that of heuristics of reasoning in contexts of epistemic uncertainty. (shrink)

This book provides a systematic analysis of many common argumentation schemes and a compendium of 96 schemes. The study of these schemes, or forms of argument that capture stereotypical patterns of human reasoning, is at the core of argumentation research. Surveying all aspects of argumentation schemes from the ground up, the book takes the reader from the elementary exposition in the first chapter to the latest state of the art in the research efforts to formalize and classify the schemes, outlined (...) in the last chapter. It provides a systematic and comprehensive account, with notation suitable for computational applications that increasingly make use of argumentation schemes. (shrink)

I argue for the distinction between presuming that p and maintaining that presumably p. In order to make sense of this distinction, I defend a non-inferentialist conception of presumptions and offer an account of the correctness conditions for both presumptions and presumptive inferences. I characterize presumptions as a type of constative speech-act having certain semantic correctness conditions. In turn, regarding presumptive inferences, my strategy is to provide the correctness conditions for the use of an epistemic modal such as “presumably.” This (...) epistemic modal is characterized as a force indicator for speech-acts of concluding in complex speech-acts of arguing involving presumptive inferences. (shrink)

Presumption is a remarkably versatile and pervasively useful resource. Firmly grounded in the law of evidence from its origins in classical antiquity, it made its way in the days of medieval scholasticism into the theory and practice of disputation and debate. Subsequently, it extended its reach to play an increasingly significant role in the philosophical theory of knowledge. It has thus come to represent a region where lawyers, debaters, and philosophers can all find some common around. In Presumption and the (...) Practices of Tentative Cognition, Nicholas Rescher endeavors to show that the process of presumption plays a role of virtually indispensable utility in matters of rational inquiry and communication. The origins of presumption may lie in law, but its importance is reinforced by its service to the theory of information management and philosophy. (shrink)

Reasoning from negative evidence takes place where an expected outcome is tested for, and when it is not found, a conclusion is drawn based on the significance of the failure to find it. By using Gricean maxims and implicatures, we show how a set of alternatives, which we call a paradigm, provides the deep inferential structure on which reasoning from lack of evidence is based. We show that the strength of reasoning from negative evidence depends on how the arguer defines (...) his conclusion and what he considers to be in the paradigm of negated alternatives. If we negate only two of the several possible alternatives, even if they are the most probable, the conclusion will be weak. However, if we deny all possible alternatives, the reasoning will be strong, and even in some cases deductively valid. (shrink)

The notion of burden of proof and its companion notion of presumption are central to argumentation studies. This book argues that we can learn a lot from how the courts have developed procedures over the years for allocating and reasoning with presumptions and burdens of proof, and from how artificial intelligence has built precise formal and computational systems to represent this kind of reasoning. The book provides a model of reasoning with burden of proof and presumption, based on analyses of (...) many clearly explained legal and non-legal examples. The model is shown to fit cases of everyday conversational argumentation as well as argumentation in legal cases. Burden of proof determines under what conditions an arguer is obliged to support a claim with an argument that backs it up and how strong that argument needs to be to prove the claim in question. (shrink)

SummaryThis paper is a critical examination of argumentum ad ignorantiam, or arguing from ignorance. Ad ignorantiam is regarded as a fallacy, and certainly no route to knowledge, by most philosophers. However, case studies of ad ignorantiam are almost non‐existent, and theoretical discussions few in number. Thus this paper begins with a number of case studies. From them some morals are drawn. The morals concern the interpretation and evaluation of arguments in general and the nature and epistemic value of ad ignorantiam (...) in particular. Two theoretical discussions of the argument‐type are next considered, those of Richard Robinson and John Woods and Douglas Walton. I conclude that there is no general fallacy of ad ignorantiam– no argument is fallacious just because it's an ad ignorantiam– and that sometimes no reason is good reason. (shrink)

In Fallacies and Judgments of Reasonableness, Frans H. van Eemeren, Bart Garssen and Bert Meuffels report on their systematic empirical research of the conventional validity of the pragma-dialectical discussion rules. The experimental studies they carried out during more than ten years start from the pragma-dialectical theory of argumentation developed at the University of Amsterdam, their home university. In these studies they test methodically the intersubjective acceptability of the rules for critical discussion proposed in this theory by confronting ordinary arguers who (...) have not received any special education in argumentation and fallacies with discussion fragments containing both fallacious and non-fallacious argumentative moves. The research covers a wide range of informal fallacies. In this way, the authors create a basis for comparing the theoretical reasonableness conception of pragma-dialectics with the norms for judging argumentative moves prevailing in argumentative practice. Fallacies and Judgments of Reasonableness provides a unique insight into the relationship between theoretical and practical conceptions of reasonableness, supported by extensive empirical material gained by means of sophisticated experimental research. (shrink)

This volume contains 12 papers addressed to researchers and advanced students in informal logic and related fields, such as argumentation, formal logic, and communications. Among the issues discussed are attempts to rethink the nature of argument and of inference, the role of dialectical context, and the standards for evaluating inferences, and to shed light on the interfaces between informal logic and argumentation theory, rhetoric, formal logic and cognitive psychology.

When, if ever, is one justified in accepting the premises of an argument? What is the proper criterion of premise acceptability? Can the criterion be theoretically or philosophically justified? This is the first book to provide a comprehensive theory of premise acceptability and it answers the questions above from an epistemological approach that the author calls common sense foundationalism. It will be eagerly sought out not just by specialists in informal logic, critical thinking, and argumentation theory but also by a (...) broader range of philosophers and those teaching rhetoric. (shrink)

Some critical reactions hardly give clues to the arguer as to how to respond to them convincingly. Other critical reactions convey some or even all of the considerations that make the critic critical of the arguer’s position and direct the arguer to defuse or to at least contend with them. First, an explication of the notion of a critical reaction will be provided, zooming in on the degree of “directiveness” that a critical reaction displays. Second, it will be examined whether (...) there are normative requirements that enhance the directiveness of criticism. Does the opponent have in circumstances a dialectical obligation to provide clarifications, explanations, or even arguments? In this paper, it is hypothesized that the competitiveness inherent in critical discussion must be mitigated by making the opponent responsible for providing her counterconsiderations, if available, thus assisting the proponent in developing an argumentative strategy that defuses them. (shrink)

The notions of burden of proof and presumption are central to law, but as noted in McCormick on Evidence, they are also the slipperiest of any of the family of legal terms employed in legal reasoning. However, recent studies of burden of proof and presumption (Prakken et al. 2005; Prakken and Sartor 2006). Gordon et al. (2007) offer formal models that can render them into precise tools useful for legal reasoning. In this paper, the various theories and formal models are (...) comparatively evaluated with the aim of working out a more comprehensive theory that can integrate the components of the argumentation structure on which they are based. It is shown that the notion of presumption has both a logical component and a dialectical component, and the new theory of presumption developed in the paper, called the dialogical theory, combines these two components. (shrink)

This paper presents a speech act analysis of presumption, using the framework of a dialogue in which two parties reason together. In the speech act of presumption, as opposed to that of assertion, the burden of proof resides not on the proponent to prove, but on the respondent to rebut. Some connections of this account with nonmonotonic reasoning and informal fallacies in argumentation are explored.

Current practice in logic increasingly accords recognition to abductive, presumptive or plausible arguments, in addition to deductive and inductive arguments. But there is uncertainty about what these terms exactly mean, what the differences between them are (if any), and how they relate. By examining some analyses ofthese terms and some of the history of the subject (including the views of Peirce and Cameades), this paper sets out considerations leading to a set of definitions, discusses the relationship of these three forms (...) of argument to argumentation schemes and sets out a new argumentation scheme for abductive argument. (shrink)

The notion of “the burden of proof” plays an important role in real-world argumentation contexts, in particular in law. It has also been given a central role in normative accounts of argumentation, and has been used to explain a range of classic argumentation fallacies. We argue that in law the goal is to make practical decisions whereas in critical discussion the goal is frequently simply to increase or decrease degree of belief in a proposition. In the latter case, it is (...) not necessarily important whether that degree of belief exceeds a particular threshold (e.g., ‘reasonable doubt’). We explore the consequences of this distinction for the role that the “burden of proof” has played in argumentation and in theories of fallacy. (shrink)

Standards and norms for reasoning function, in part, to manage epistemic risk. Properly used, modal qualifiers like presumably have a role in systematically managing epistemic risk by flagging and tracking type-specific epistemic merits and risks of the claims they modify. Yet, argumentation-theoretic accounts of presumption often define it in terms of modalities of other kinds, thereby failing to recognize the unique risk profile of each. This paper offers a stipulative account of presumption, inspired by Ullmann-Margalit, as an inferentially generated modal (...) qualifier, “presumably, p,” distinguishing it from other, particularly epistemic modalities, e.g., standing commitments, assumptions, assertions, suppositions, hypotheses, and defeasible claims. By avoiding the tranching of inferential instruments of qualitatively different bona fides and risk profiles, this account provides a more accurate risk-rating system that better manages epistemic risk in inference, as well as contributing to the normative theory of the operation of presumption in reasoning and argument. (shrink)

Some critical reactions hardly give clues to the arguer as to how to respond to them convincingly. Other critical reactions convey some or even all of the considerations that make the critic critical of the arguer’s position and direct the arguer to defuse or to at least contend with them. First, an explication of the notion of a critical reaction will be provided, zooming in on the degree of “directiveness” that a critical reaction displays. Second, it will be examined whether (...) there are normative requirements that enhance the directiveness of criticism. Does the opponent have in circumstances a dialectical obligation to provide clarifications, explanations, or even arguments? In this paper, it is hypothesized that the competitiveness inherent in critical discussion must be mitigated by making the opponent responsible for providing her counterconsiderations, if available, thus assisting the proponent in developing an argumentative strategy that defuses them. (shrink)

According to Douglas Walton, the concept of presumption relates to both logical and dialogical components. Logically, a presumption is the conclusion of a presumptive defeasible inference. Dialogically, the function of a presumptions to shift the burden of proof to the respondent in order to move the dialogue forward when the proponent, due to an objective lack of evidence, cannot present a sufficiently persuasive proposition. Presumptive status, assigned only at the argumentation stage of dialogue, is provisional: a particular presumption stands until (...) further counter-indications are found. This paper points out some possible difficulties pertaining to Walton’s dialogical model of presumption. Firstly, once a presumption's typical practical function is made precise, Walton’s idea of presumption starts to lose its conceptual cohesion, thereby becoming applicable in the opening stage of dialogue, as well. Secondly, cohesion is lost also in practical contexts, since Walton's "seat belts" example might indicate that presumptions are not evidentially defeasible if the practical stakes are raised high enough. Most importantly, contextual evaluation may reveal that presumptions do not shift the burden of proof in any specific or genuine way. (shrink)

This paper joins the voices warning against hasty transference of legal concepts of presumption to other kinds of argumentation, especially to deliberation about future acts and policies. Comparison of the pragmatics which respectively constitute the illocutionary acts of accusing and proposing reveals important differences in the ways presumptions prompt accusers and proposers to undertake probative responsibilities and, also, points to corresponding differences in their probative duties. This comparison has theoretically important implication regarding the norms governing persuasive argumentation. The paper is (...) based on a broadly Gricean account of speech acts. (shrink)

Some critical reactions hardly give clues to the arguer as to how to respond to them convinc-ingly. Other critical reactions convey some or even all of the considerations that make the critic critical of the arguer’s position and direct the arguer to defuse or to at least contend with them. First, an explication of the notion of a critical reaction will be provided, zooming in on the degree of ‘directiveness’ that a critical reaction displays. Second, it will be examined whether (...) and to what extent there is a normative requirement to strive after criticism that is more than minimally directive. In this paper, it is hypothesized that the com-petitiveness inherent in critical discussion must be mitigated by making the opponent responsible for providing her counterconsiderations, if available, thus assisting the proponent in developing an argumenta-tive strategy that defuses them. (shrink)