Document Type

Article

Publication Date

2008

Abstract

We commonly think of presumptions as second-best inferential tools allowing us to reach conclusions, if we must, under conditions of limited information. Scholarship on the topic across the disciplines has espoused a common conception of presumptions that defines them according to their function within the decisionmaking process. This focus on the “private” face of presumptions has generated a predominantly critical and grudging view of them, perpetuated certain conceptual ambiguities, and, most important, neglected the fact that what we refer to as “presumptions” have distinguishing features other than the defeasibility and burden-shifting effects associated with their use as inferential tools. When a decisionmaker gives reasons for a conclusion, the decisionmaker often cites a presumption among the reasons for that conclusion; in this guise – their “public” face – presumptions display different, and uniquely valuable, features that remain hidden if we understand them only as aids to inference. This essay both surveys recent approaches to the critical analysis of presumptions in law, philosophy, and discourse studies, and offers an account of how we might begin to think about this other, public face of presumptions.

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