Presumption, Dialogical Theory

“Although presumption is not evidence and has no weight as such, it does make a prima facie case for the party in whose favor it exists and points out the party who has the burden of going forward […], but it must be remembered at all times that basic facts must be supplied before a presumption comes into existence, […], and it has a binding effect until successfully rebutted by the other party.”1 Keywords:- Presumption, Preliminary Treatise, Dialogical theory Concept and Definitions:

The term presumption is an English translation of the Latin term “praesumptio”. It originated from the Roman law of the Middle Ages.2As Fisk noted, in the earlier days of Roman law, there have been praesumptio juris and praesumptio hominis. Shain adds praesumptiones

Or is it a rule of law, or an argument, or a fact? Or is it all of these things? As the literature shows, particularly since the publication of Thayer‟s book entitled A Preliminary Treatise on Evidence at the Common Law in 1898, many authors have raised these questions and tried to provide answers. The 7th edition of Black‟s Law Dictionary considers presumption as a “legal inference or assumption that a fact exists based on the known or proven existence of some other fact or group of facts” and it states that “most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.” In other words, presumptions signify legal inferences or assumptions that trigger the drawing of conclusions from proved

Whately adopted the conservative position that there is a presumption in favor of prevailing opinions in existing institutions, like the Church. The reasons why he adopted this conservative attitude may not be entirely clear, but his account of the connection between burden of proof and presumption is clear. According to his account, the burden of proof is initially placed on one side or the other at the outset of an argument. This initial placement has an effect on subsequent argumentation. The party who bears this burden has the responsibility