By Henry Bradford Smith
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Whateley’s classic discussion of the subject is still one of the most instructive treatments of presumption. On this issue see Durham v. United States, 241f 2d 862 (D. C. Circuit 1954), pp. 741–49. Cognitive Rationality and Burden of Proof 19 4. Cognitive Rationality and Burden of Proof It cannot be emphasized too strongly that the idea of burden of proof is not a strictly logical concept, considered in the realm of rational inference. Logic in itself has no dealings with the issue of probative obligations or even with the (categorical) truth status or presumptive truth status of propositions.
22 Presumption and Burden of Proof fails to obtain. ) Presumption, by contrast, belongs not to language as such but to the modus operandi of language users. It belongs to the order of pragmatics – of linguistic praxis like lying or deceiving. Presuming is part of the modus operandi not of language but of language uses. Like “to know” or “to believe” or “to conjecture,” “to presume” is a cognitive verb that relates people with facts or probative facts. It does not relate such facts with one another, but characterizes the nature of the relationship between an inquirer and a putative fact.
And indeed it was! 2. Some Aspects of Cognitive Presumption A tradition in philosophical epistemology that reaches from the later Stoics and Academic Skeptics of antiquity to the British Idealists of the turn of the present century insists (not always expressis verbis, but in effect) on a presumption of truth in favor of the deliverances of memory and of the senses. Theses based on observation or recollection are to have the benefit of doubt, a presumption of truth in their favor – they are to stand unless significant counterindications are forthcoming.