A dialogical theory of presumption

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