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CHAPTER 1
Dialectical Propositions (from Topics)
ARISTOTLE
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[100a18] Our treatise proposes to find a method whereby we shall be able to reason from opinions that are generally accepted about every problem propounded to us, and also shall ourselves, when standing up to an argument, avoid saying anything that will obstruct us. First, then, we must say what reasoning is, and what its varieties are, in order to grasp dialectical reasoning: for this is the object of our search in the treatise before us.
Now reasoning is an argument in which, certain things being laid down, something other than these necessarily comes about through them. (a) It is a "demonstration," when the premises from which the reasoning starts are true and primary, or are such that our knowledge of them has originally come through premisses which are primary and true: (b) reasoning on the other hand, is "dialectical," if it reasons from opinions that are generally accepted. Things are "true" and "primary" which are believed on the strength not of anything else but of themselves: for in regard to the first principles of science it is improper to ask any further for the why and wherefore of them; each of the first principles should command belief in and by itself. On the other hand, those opinions are "generally accepted" which are accepted by everyone or by the majority or by the philosophers — i.e., by all, or by the majority, or by the most notable and illustrious of them. Again (c), reasoning is "contentious" if it starts from opinions that seem to be generally accepted, but are not really such, or again if it merely seems to reason from opinions that are or seem to be generally accepted. For not every opinion that seems to be generally accepted actually is generally accepted. For in none of the opinions which we call generally accepted is the illusion entirely on the surface, as happens in the case of the principles of contentious arguments; for the nature of the fallacy in these is obvious immediately, and as a rule even to persons with little power of comprehension. So then, of the contentious reasonings mentioned, the former really deserves to be called "reasoning" as well, but the other should be called "contentious reasoning," but not "reasoning," since it appears to reason, but does not really do so.
Further (d), besides all the reasonings we have mentioned there are the misreasonings that start from the premisses peculiar to the special sciences, as happens (for example) in the case of geometry and her sister sciences. For this form of reasoning appears to differ from the reasonings mentioned above; the man who draws a false figure reasons from things that are neither true and primary, nor yet generally accepted. For he does not fall within the definition; he does not assume opinions that are received either by every one or by the majority or by philosophers — that is to say, by all, or by most, or by the most illustrious of them — but he conducts his reasoning upon assumptions which, though appropriate to the science in question, are not true; for he effects his mis-reasoning either by describing the semicircles wrongly or by drawing certain lines in a way in which they could not be drawn.
The foregoing must stand for an outline survey of the species of reasoning. In general, in regard both to all that we have already discussed and to those which we shall discuss later, we may remark that that amount of distinction between them may serve, because it is not our purpose to give the exact definition of any of them; we merely want to describe them in outline; we consider it quite enough from the point of view of the line of inquiry before us to be able to recognize each of them in some sort of way.
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[101a25] Next in order after the foregoing, we must say for how many and for what purposes the treatise is useful. They are three — intellectual training, casual encounters, and the philosophical sciences. That it is useful as a training is obvious on the face of it. The possession of a plan of inquiry will enable us more easily to argue about the subject proposed. For purposes of casual encounters, it is useful because when we have counted up the opinions held by most people, we shall meet them on the ground not of other people's convictions but of their own, while we shift the ground of any argument that they appear to us to state unsoundly. For the study of the philosophical sciences it is useful, because the ability to raise searching difficulties on both sides of a subject will make us detect more easily the truth and error about the several points that arise. It has a further use in relation to the ultimate bases of the principles used in the several sciences. For it is impossible to discuss them at all from the principles proper to the particular science in hand, seeing that the principles are the prius of everything else: it is through the opinions generally held on the particular points that these have to be discussed, and this task belongs properly, or most appropriately, to dialectic: for dialectic is a process of criticism wherein lies the path to the principles of all inquiries.
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[101b5] We shall be in perfect possession of the way to proceed when we are in a position like that which we occupy in regard to rhetoric and medicine and faculties of that kind: this means the doing of that which we choose with the materials that are available. For it is not every method that the rhetorician will employ to persuade, or the doctor to heal; still, if he omits none of the available means, we shall say that his grasp of the science is adequate.
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[101b11] First, then, we must see of what parts our inquiry consists. Now if we were to grasp (a) with reference to how many, and what kind of, things arguments take place, and with what materials they start, and (b) how we are to become well supplied with these, we should have sufficiently won our goal. Now the materials with which arguments start are equal in number, and are identical, with the subjects on which reasonings take place. For arguments start with "propositions," while the subjects on which reasonings take place are "problems." Now every proposition and every problem indicates either a genus or a peculiarity or an accident — for the differentia too, applying as it does to a class (or genus), should be ranked together with the genus. Since, however, of what is peculiar to anything part signifies its essence, while part does not, let us divide the "peculiar" into both the aforesaid parts and call that part which indicates the essence a "definition," while of the remainder let us adopt the terminology which is generally current about these things and speak of it as a "property." What we have said, then, makes it clear that according to our present division, the elements turn out to be four, all told, namely either property, or definition, or genus, or accident. Do not let anyone suppose us to mean that each of these enunciated by itself constitutes a proposition or problem, but only that it is from these that both problems and propositions are formed. The difference between a problem and a proposition is a difference in the turn of the phrase. For if it be put in this way, "'An animal that walks on two feet' is the definition of man, is it not?" or "'Animal' is the genus of man, is it not?" the result is a proposition: but if thus, "Is 'an animal that walks on two feet' a definition of man or no?" [or "Is 'animal' his genus or no?"] the result is a problem. Similarly, too, in other cases. Naturally, then, problems and propositions are equal in number: for out of every proposition you will make a problem if you change the turn of the phrase. [...]
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[104a1] First, then, a definition must be given of a "dialectical proposition" and a "dialectical problem." For it is not every proposition nor yet every problem that is to be set down as dialectical: for no one in his senses would make a proposition of what no one holds, nor yet make a problem of what is obvious to everybody or to most people: for the latter admits of no doubt, while to the former no one would assent. Now a dialectical proposition consists in asking something that is held by all men or by most men or by the philosophers, i.e., either by all, or by most, or by the most notable of these, provided it be not contrary to the general opinion; for a man would probably assent to the view of the philosophers, if it be not contrary to the opinions of most men. Dialectical propositions also include views which are like those generally accepted; also propositions which contradict the contraries of opinions that are taken to be generally accepted, and also all opinions that are in accordance with the recognized arts. Thus, supposing it to be a general opinion that the knowledge of contraries is the same, it might probably pass for a general opinion also that the perception of contraries is the same: also, supposing it to be a general opinion that there is but one single science of grammar, it might pass for a general opinion that there is but one science of flute-playing as well, whereas, if it be a general opinion that there is more than one science of grammar, it might pass for a general opinion that there is more than one science of flute-playing as well: for all these seem to be alike and akin. Likewise, also, propositions contradicting the contraries of general opinions will pass as general opinions: for if it be a general opinion that one ought to do good to one's friends, it will also be a general opinion that one ought not to do them harm. Here, that one ought to do harm to one's friends is contrary to the general view, and that one ought not to do them harm is the contradictory of that contrary. Likewise, also, if one ought to do good to one's friends, one ought not to do good to one's enemies: this too is the contradictory of the view contrary to the general view; the contrary being that one ought to do good to one's enemies. Likewise, also, in other cases. Also, on comparison, it will look like a general opinion that the contrary predicate belongs to the contrary subject: e.g, if one ought to do good to one's friends, one ought also to do evil to one's enemies. It might appear also as if doing good to one's friends were a contrary to doing evil to one's enemies: but whether this is or is not so in reality as well will be stated in the course of the discussion upon contraries. Clearly also, all opinions that are in accordance with the arts are dialectical propositions; for people are likely to assent to the views held by those who have made a study of these things, e.g., on a question of medicine they will agree with the doctor, and on a question of geometry with the geometrician; and likewise also in other cases.
CHAPTER 2
Presumptions in Legal Argumentation
From Antiquity to the Middle Ages
HANNS HOHMANN
Presumptions help us make decisions under conditions of uncertainty. Such decisions are also the business of rhetoric, and so one might expect to find a discussion of presumptions in the ancient handbooks of that discipline; as a matter of fact, however, the term praesumptio there appears only to refer to the anticipation of counterarguments and is thus used as an equivalent to prolepsis. Instead, we find the concept of presumption as related to decisions about doubtful facts and the distribution of burdens of proof emerging in the context of Roman law. In this chapter I will sketch in broad outline the transition of the concept of presumption from a relatively subordinate part of the Roman law to a central feature of legal disputations in the revival of Roman law in the Middle Ages. I will first discuss features of presumptions in the codification of Roman law that was undertaken at the behest of the emperor Justinian in the sixth century AD and later became known as the Corpus Iuris. In my discussion here, I will focus primarily on the Digest, a vast collection of juristic pronouncements by leading Roman jurists, collected from a literature spanning six centuries. Then I will focus on the treatment of presumptions in the second edition of Pilius's Libellus Disputatorius, written by Pilius of Medicina in the second half of the twelfth century. In conclusion, I will briefly point to elements of these developments that may be useful in considering the renewed contemporary discussion about the role of presumptions in argumentation, a discussion that has been stimulated particularly by Richard Gaskins's Burdens of Proof in Modern Discourse, which highlights the paradigmatic significance of the rhetorical manipulation of burdens of proof in legal reasoning.
Even before the term praesumptio was used to denote the concept, the Roman jurist Quintus Mucius Scaevola introduced, at the turn from the second to the first century BC, a presumption into legal controversies about the source of property that had passed to a woman. He argued that "when it is not clear where the property has come from, it is more correct and decent to hold that she got it from her husband or someone in his power." The later jurist Pomponius (second century AD), who transmitted this pronouncement to us, added the comment that "Quintus Mucius appears to have taken this view in order to avoid any disgraceful inquiry involving a wife." This early use of presumption in legal argumentation already shows the subtle interplay of empirical and normative considerations that characterizes the treatment of presumptions in the Roman law of the Corpus Iuris as a whole.
Legal presumptions take as their starting point an established fact (in the example: a married woman holds property of uncertain origin) and then draw from this a conclusion about an uncertain matter (here: the origin of the property, which is presumed to have come from the husband). The structure of presumptions thus resembles that of arguments from probability, and in the Roman law we find several references to presumptions that people make as a matter of empirical fact. For instance, a father presumes his son missing in war to be dead; people assume that slaves of some nationalities are better than slaves of other nationalities; or they assume that a more recently enslaved person will be easier to deal with than a slave of long standing; or a father assumes that his wife will ultimately deliver to the children whatever part of his property she has taken. In such cases, people form factual expectations on the basis of what they perceive to be likely. Legal presumptions may also be based on such perceptions of empirical probability, but they need not be. Once they are established, legal presumptions create an entitlement to the conclusion toward which they point (barring the possibility and permissibility of proof to the contrary).
The most fundamental legal presumption, that in favor of defendants, is a case in point. It is stated at the outset of the Digest chapter titled "On Proof and Presumption" that "proof lies on him who asserts, not on him who denies." This rule is not based on the observation that plaintiffs are generally less likely to make believable assertions than defendants, but rather on the perception that it is fairer to impose the burden of proof on the plaintiff. This is even clearer when we look at the burden of proof in criminal cases, where in fact it is more likely than not that the defendant is guilty, since more defendants are convicted than acquitted. And that the underlying judgment about the presumption of innocence is normative rather than empirical is made quite clear in what the jurist Ulpian reports to us about a rescript of the emperor Trajan, who held that in criminal cases nobody should be condemned on suspicion because "it was preferable that the crime of a guilty man should go unpunished rather than that an innocent man be condemned." The emphasis is here not so much on which presumption is more likely to be correct but on which is less likely to lead to less acceptable consequences.
While generally it may be regarded as fairer to impose the burden of proof on the plaintiff, the law of presumptions also establishes modifications of this principle. Even before the general rule is stated, the very first excerpt under the Digest title "Proof and Presumptions" establishes the exception that "if the issue is whether someone has a clan or a gens, he must prove it." Here the burden of proof is imposed on the party who is in a better position to provide the required evidence, regardless of whether that party is the plaintiff or the defendant.
(Continues…)
Excerpted from "Presumptions and Burdens of Proof"
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