Dialectical and heuristic arguments: presumptions and burden of proof.

Presumption is a complex concept in law, affecting the dialogue setting. However, it is not clear how presumptions work in everyday argumentation, in which the concept of “plausible argumentation” seems to encompass all kinds of inferences. By analyzing the legal notion of presumption, it appears that this type of reasoning combines argument schemes with reasoning from ignorance. Presumptive reasoning can be considered a particular form of reasoning, which needs positive or negative evidence to carry a probative weight on the conclusion. For this reason, presumptions shift the burden of providing evidence or explanations onto the interlocutor. The latter can provide new information or fail to do so: whereas in the first case the new information rebuts the presumption, in the second case, the absence of information that the interlocutor could reasonably provide strengthen the conclusion of the presumptive reasoning. In both cases the result of the presumption is to strengthen the conclusion of the reasoning from lack of evidence. As shown in the legal cases, the effect of presumption is to shift the burden of proof to the interlocutor; however, the shift a presumption effects is only the shift of the evidential burden, or the burden of completing the incomplete knowledge from which the conclusion was drawn. The burden of persuasion remains on the proponent of the presumption. On the contrary, reasoning from definition in law is a conclusive proof, and shifts to the other party the burden to prove the contrary. This crucial difference can be applied to everyday argumentation: natural arguments can be divided into dialectical and presumptive arguments, leading to conclusions materially different in strength

Burden of proof

ABSTRACT. This paper presents an analysis of the concept of burden of proof in argument. Relationship of burden of proof to three traditional informal fallacies is considered: (i) argumentum ad hominem (ii) petitio principii and (iii) argumentum ad ignorantiam. Other topics discussed include persuasive dialogue, pragmatic reasoning, legal burden of proof, plausible reasoning in regulated disputes, rules of dialogue, and the value of reasoned dialogue. KEY WORDS. Argumentation, persuasion, dialogue, fallacies, rhetoric, informal logic, pragmatics, presumption. It has been shown by Whately, Perelman, Johnstone, Hintikka, Barth and Krabbe, and Meyer, that philosophical argumentation is based on a framework of i nteractive question-answer dialogue between two speakers who take opposing sides on a controversial issue. Of course, this tradition is no novelty in philosophy, and is most closely identified with Socratic dialogue as a model of philosophical argument. If one takes this conception of philosophical argument seriously, traditional informal fallacies like the petitio principii, argumentum ad hominem, and argumentum ad ignorantiam are revealed as (a) not fallacies in many instances, but forms of plausible reasoning that can be reasonable arguments to shift a burden of proof, and (b) extremely important types of criticism in argumentation that can have the legitimate function of shifting a burden or weight of evidence against, or in favor of presumptions in an argument. However, these traditional categories of argument called informal fallacies can only be themselves revealed as deeply interesting and fundamental objects of study for philosophy once some headway has been made in understanding the underlying concept of burden of proof in argument. But the literature offers more questions than answers on the subject of burden of proof. The arguments of this paper are motivated by an interest in trying to provide answers for the following six questions. 1. How does burden of proof get set initially in reasoned dialogue? Argumentation 2 (1988) 233-254

Explanation for case-based reasoning via abstract argumentation

Case-based reasoning (CBR) is extensively used in AI in support of several applications, to assess a new situation (or case) by recollecting past situations (or cases) and employing the ones most similar to the new situation to give the assessment. In this paper we study properties of a recently proposed method for CBR, based on instantiated Abstract Argumentation and referred to as AA-CBR, for problems where cases are represented by abstract factors and (positive or negative) outcomes, and an outcome for a new case, represented by abstract factors, needs to be established. In addition, we study properties of explanations in AA-CBR and define a new notion of lean explanations that utilize solely relevant cases. Both forms of explanations can be seen as dialogical processes between a proponent and an opponent, with the burden of proof falling on the proponent

Presumptions in argumentation:a systematic analysis

Take some statement p that is objectively uncontroversial (e.g., “The Earth is globe-shaped”), and that you accept for that reason. Suppose, however, that your interlocutor is not convinced: she remains sceptical, or advances non-p. How should a reasonable discussion about p be structured? Should you (and only you) have the burden of proof and provide reasons, despite p’s objective plausibility? Should the burden allocation be symmetrical? Or should only those who reject plausible positions carry probative obligations? This dissertation studies the latter proposal. Some philosophers, legal scholars, argumentation theorists, and rhetoricians have argued that there is a set of dialectically privileged propositions, i.e., ‘presumptions,’ that asymmetrically allocate the burden(s) of proof. I analyse this ‘deontic function’ in connection to: presumption’s other functions (such as harm reduction and enabling dialogical progress), defeating conditions, the argument from ignorance, and justificatory strength. In general, I argue that the standard accounts of ‘deontic function’ require revisions and qualifications. In particular, I show that presumption entails distinct pragmatic, deontic, and dialogical functions, different defeating conditions, and distinct conceptions of justificatory strength—depending on whether the presumption is ‘practical’ (e.g., “We should proceed as if it will rain and bring an umbrella (although this is not certain)”) or ‘cognitive’ (e.g., “The Earth is globe-shaped”)

Kidney Sales and the Burden of Proof

Janet Radcliffe Richards’ The Ethics of Transplants outlines a novel framework for moral inquiry in practical contexts and applies it to the topic of paid living kidney donation. In doing so, Radcliffe Richards makes two key claims: that opponents of organ markets bear the burden of proof, and that this burden has not yet been satisfied. This paper raises four related objections to Radcliffe Richards’ methodological framework, focusing largely on how Radcliffe Richards uses this framework in her discussion of kidney sales. We conclude that Radcliffe Richards’ method of inquiry hinders our ability to answer the very question that it ought to help us resolve: What is there best reason to do, all things considered

The Reasoning about Evidence in Tax Matters

The article deals with reasoning about evidence in tax matters. The Author of the article analyses common errors in comprehending of evidence by tax administrators. The Author classifies these errors into two types: incorrect evaluation of burden of proof and incorrect allocation of the burden of proof. The main goal of the article is to examine, how to assess the burden of proof in tax matters. The article examines the rational limitation of the scope of evidence burden that should be respected by tax administrator in tax proceedings. Moreover, the article advocates the application of a rule in dubio mitius in respect to reasoning about evidence.This article presents a partial output of grant project VEGA no. APVV-16-0160 “Tax evasions and tax frauds and legal possibilities of its prevention (by institutes of tax law, commercial law, and criminal law)”[email protected], works as a full-time researcher – post-doctoral in the Department of Financial Law, Tax Law and Economics at the Faculty of Law – Pavol Jozef Šafárik University in Košice. He has participated in scientific research also within projects implementation VEGA č. 1/0375/15, VEGA č. 1/1170/12 and VVGS č. 2013-108. In 2016 he published the scientific monograph on international tax avoidance and tax evasion: “Medzinárodné daňové úniky a metódy ich predchádzania. (International tax avoidance and methods to combat aggressive tax planning)”.Pavol Jozef Šafárik University in KošiceBabčák, V.: Daňové právo na Slovensku (Tax law in Slovakia), Bratislava: EPOS, 2015.Bujňáková, M.: Princípy a zásady v daňovom práve (Principles in Tax law), in: Aktuálne otázky práva (Current questions of Law), Košice: Univerzita P.J. Šafárika v Košiciach, 2006.Kazaki, M.: Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals, Hague: Kluwer Law International, 1996.Kobík, J., Šperl, J.: Dokazováni v daňovém řízení (Collection of evidence in tax proceedings), Praha: ASPI., 2005.Macur, J.: Dukazní břemeno v civilním soudním řízení (Burden of proof in civil proceedings), Brno: Masarykova Univerzita, 1995.Melzer, F.: Metodologie nalézání práva. Úvod do právní argumentace (Methodology of finding the Law. Introduction to the legal argumentation), Praha: C.H. Beck, 2009.Svoboda, K.: Dokazování (Collection of evidence), Praha: Wolter-Kluwer, 2009.Walton, D.: Burden of Proof, Presumption and Argumentation, New York: Cambridge University Press, 2014.Záhora, J. et al.: Dokazovanie v trestnom konaní (Collection of evidence in criminal proceedings 1st. ed.), Praha: Leges, 2013.SK: Act no. 563/2009 Coll. on Tax Administration (Tax Procedure Code) and on amendments and supplements to certain laws.57958

Subjective Logic and Arguing with Evidence

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Civil Procedure as a Critical Discussion

This Article develops a model for analyzing legal dispute resolution systems as systems for argumentation. Our model meshes two theories of argument conceived centuries apart: contemporary argumentation theory and classical stasis theory. In this Article, we apply the model to the Federal Rules of Civil Procedure as a proof of concept. Specifically, the model analyzes how the Federal Rules of Civil Procedure function as a staged argumentative critical discussion designed to permit judge and jury to rationally resolve litigants’ differences in a reasonable manner. At a high level, this critical discussion has three phases: a confrontation, an (extended) opening, and a concluding phase. Those phases are the umbrella under which discrete argumentation phases occur at points we call stases. Whenever litigants seek a ruling or judgment, they reach a stasis—a stopping or standing point for arguing procedural points of disagreement. During these stases, the parties make arguments that fall into predictable “commonplace” argument types. Taken together, these stock argument types form a taxonomy of arguments for all civil cases. Our claim that the Federal Rules of Civil Procedure function as a system for argumentation is novel, as is our claim that civil cases breed a taxonomy of argument types. These claims also mark the beginning of a broader project. Starting here with the Federal Rules of Civil Procedure, we embark on a journey that we expect to follow for several years (and which we hope other scholars will join), exploring our model’s application across dispute resolution systems and using it to make normative claims about those systems. From a birds-eye view, this Article also represents a short modern trek in a much longer journey begun by advocates in city states in and near Greece nearly 2500 years ago