Legal & DebateNEUTRAL — Rhetoric

Presumption

What it is

A decision rule for cases in which the arguments do not settle the question: the position that wins by default — the status quo, the accused's innocence, the existing policy — until a sufficient case is made against it.

How it works

Richard Whately gave the concept its modern form in 1828: a presumption is a preoccupation of the ground, not a claim that the occupant is right. It lies with existing institutions and beliefs because the burden of change belongs to whoever proposes change — the same logic as the presumption of innocence, which does not assert that accused people are innocent but decides what happens when proof falls short. Competitive debate inherited the rule directly: presumption lies with the negative, and an affirmative that fails to make a prima facie case loses even if the negative said nothing. Edna Ullmann-Margalit's analysis explains why presumptions exist at all: they are procedural devices for acting under uncertainty, chosen by comparing the costs of the two possible errors rather than the likelihood of the two possible answers. The distinction between a presumption and a truth claim is where the abuse enters. “You have not proved it, so the status quo is right” converts a tie-breaker into a verdict — the appeal to ignorance dressed as procedure. Whately also noted that a presumption can be met by a counter-presumption, and that the presumption in favor of the existing state of things weakens as that state is shown to be failing.

Real-world examples

  • •In re Winship (1970) fixed the criminal standard at proof beyond a reasonable doubt; the defendant's presumption of innocence is a rule about the consequence of doubt, not a finding of fact.
  • •A policy judge who finds the round a wash votes negative on presumption; affirmatives therefore argue that presumption flips when the negative runs a counterplan that also changes the status quo.
  • •Workplace: “the current process stays unless the proposal shows a net benefit” is a sensible presumption; “the current process is fine because nobody has proved otherwise” is the same sentence turned into a false claim about the process.
  • •Family and online: “innocent until proven guilty” invoked to end a discussion about a friend's conduct confuses a courtroom decision rule with a reason to believe the conduct did not occur.

Ethical guidelines

  • ●State which way presumption runs and why, and let the other side contest the allocation.
  • ●Never present a presumption as evidence; winning by default is not being right.
  • ●Let presumption weaken as the status quo is shown to fail; a decaying default does not deserve the deference of a working one.
  • ●When you propose change, accept the burden that comes with it rather than arguing that defenders of the status quo must justify it first.

How to defend against it

  • ►Separate the two questions aloud: “Is the claim that nothing has been proved, or that the existing arrangement is good? The first does not establish the second.”
  • ►Ask about error costs. A presumption is justified by which mistake is worse; if leaving things as they are is the costlier error, presumption should run the other way.
  • ►Contest the allocation before the argument, not after: “Before we start — who has to prove what here, and to what standard?”
  • ►When someone hides behind “innocent until proven guilty” outside a courtroom, note that the standard governs punishment, not belief, and ask what standard they think applies to the decision at hand.

References

  1. Whately, R. (1828). Elements of Rhetoric. Ed. D. Ehninger, Southern Illinois University Press, 1963 (from the 7th ed., 1846; first ed. 1828), Part I, Chapter III
    Presumption as a preoccupation of the ground, its default location with existing institutions, and its rebuttal by counter-presumption.
  2. Ullmann-Margalit, E. (1983). On Presumption. Journal of Philosophy, 80(3), 143-163
    Presumptions as procedural rules for action under uncertainty, justified by the comparative costs of error.
  3. Freeley, A. J., & Steinberg, D. L. (2014). Argumentation and Debate: Critical Thinking for Reasoned Decision Making (13th ed.). Wadsworth Cengage Learning
    Presumption with the negative and the affirmative prima facie burden in academic debate.
  4. U.S. Supreme Court (1970). In re Winship, 397 U.S. 358. United States Reports
    The reasonable-doubt standard as a constitutional requirement in criminal cases.
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