© Springer International Publishing Switzerland 2015Maksymilian Del Mar and William Twining (eds.)Legal Fictions in Theory and PracticeLaw and Philosophy Library11010.1007/978-3-319-09232-4_16
16. Presumptions and Fictions: A Collingwoodian Approach
Instituto Tecnológico Autónomo de México, Río Hondo 1, ProgresoTizapan, Álvaro Obregón, Ciudad de México, Distrito Federal, 01080, México
This essay examines the explanatory power of the traditional distinction between presumptions and fictions in the light of two problems. First, the relationship between these concepts is usually presented in isolation of the context in which it was elaborated. A careful examination of this subject requires devoting a space to try to put in context the intellectual tradition to which this distinction belongs. The essay surveys the intellectual origins of the distinction and shows that the common conception of presumptions and legal fictions in both the Continental and the Anglo-American legal cultures descends from Medieval Law in an unbroken tradition. Secondly, the analysis of the relationship between presumptions and legal fictions is largely problematic because of the ambiguity of these expressions. Particular attention is given to a specific and perhaps more persistent ambiguity in the analysis of these concepts: the distinction between the theoretical (cognitive) and practical (normative) dimension of presumptions and legal fictions.
A recurrent theme in the literature of legal fictions is the analysis of the similarities and differences between fictions and other related concepts. For centuries, legal scholars have relied on this practice for the purpose of acquiring a better understanding of this concept.1 The question “What is a legal fiction?” is expected to be clarified by making explicit what legal fictions are not, and how they differ from other concepts. Following this path, several authors have explored the difference between fictions and lies, deceptions, errors and false hypotheses (Frank 2009 , pp. 338–340 and Fuller 1967, p. 5). Historically, particular attention has been devoted to explore the relationship between legal fictions and other related legal instruments. Among all the potential candidates for having a family resemblance with legal fictions, the literature emphasizes the concept of presumption.
The relationship between presumptions and legal fictions is traditionally presented in terms of two different types of assumptions. A legal fiction is characterized as a “consciously false assumption” (Ross 1969, p. 223), or as “an assumed fact, notoriously false, upon which one reasons as if it were true” (Bentham 1840, p. 91). In presumptions, in contrast, a fact is also assumed to be true, but in this case the assumed fact may be true, and in some cases is probably true. As expressed by Fuller “a presumption (whether conclusive or rebuttable) assumes something that may possibly be true” (Fuller 1967, p. 40).
In both cases, there would be a common element of assumption, since a proposition is assumed to be true. The main difference between these concepts would consist in the contingent conformity with truth in the case of presumptions and in the necessary deviation from reality in the case of legal fictions.2 In legal fictions a proposition is known to be false, and from this knowledge we reason as if it were true . Presumptions operate instead in situations of uncertainty in which we do not know whether a proposition is true or false. Despite this uncertainty, the presumption assumes beforehand that something is true. 3
The aforementioned distinction is repeated time and time again both in the literature of presumptions and legal fictions.
In his classical work on legal fictions, Fuller proposed to examine the explanatory power of the traditional distinction by asking: “How valid is this distinction?” and “how significant is it?” (Fuller 1967, p. 40). He advanced interesting ideas about these topics. One of them is his thesis that presumptions and legal fictions are instruments that obscure the growth of the law by redefining the operative facts to which legal consequences are attached (Fuller 1967, pp. 72–77).4 Fuller was fully aware of the close relationship between these concepts. As he observed:
On balance, one should acknowledge his contribution to the literature of legal fictions.6 However, at some points it seems that he was more worried about exploring which requirements a presumption should meet to avoid the charge of “fiction”, than in questioning the validity of the distinction between these concepts.7 Besides, his definition of legal fictions as statements and his insistence on the parallelism between fictions of science and legal fictions8 are symptomatic of a persistent ambiguity in the analysis of these concepts.
In the light of these observations, this essay examines the explanatory power of the traditional distinction between presumptions and legal fictions in two parts.
First, the relationship between presumptions and legal fictions is usually presented in isolation of the context in which it was elaborated. A careful examination of this subject requires devoting some space to put in context the intellectual tradition to which this distinction belongs.
Secondly, the traditional distinction attempts to offer a clarification of the relationship between presumptions and legal fictions in general. However, both terms are used in legal discourse to refer to a variety of phenomena. The second part of the essay addresses the problem of the ambiguity in the use of these expressions. In particular, it explores the distinction between the theoretical (cognitive) and practical (normative) dimensions of presumptions and legal fictions as a preliminary step for clarifying the relationship between these concepts at the level of rules.
As expressed in the title, this essay adopts a Collingwoodian approach to the topic of the relationship between presumptions and legal fictions. This requires some explanation. First, this paper takes Robert G. Collingwood’s thesis of understanding ideas in historical terms.9 When applied to the topic of this essay, this thesis implies that the problem of the explanatory power of the traditional distinction could not be analyzed in vacuo; it should be examined in connection with the context in which this distinction emerged. Secondly, it takes Collingwood’s thesis of clarifying ideas through the formulation of questions.10 This thesis supposes that before asking: Is this distinction valid? One should ask: To what problem does this distinction purport to answer? Is this distinction applicable to all the different phenomena identified with the names “presumption” and “legal fiction” ?
16.2 The Distinction in Context
In order to examine critically the explanatory power of the traditional distinction between presumptions and legal fictions it might be useful to take a step back and consider, although briefly, the context in which this distinction was originally elaborated. This implies going back to Medieval Law , where civilians elaborated most of the notions, definitions and classifications of presumptions and legal fictions, which, to a greater or lesser extent, we still use today.
For this purpose, it is relevant to point out that the doctrines of presumptions and legal fictions elaborated in the ius commune were not the product of one individual or a single work elaborated at a single time. On the contrary, they were the result of a combined contribution by different scholars over a period of five centuries.11
As observed in Franco Todescan’s book on the doctrinal history of legal fictions, the first attempts to clarify the relationship between the concepts of praesumptio and fictio are found as early as the twelfth century in the work of the glossators and canonists (Todescan 1979, p. 88). But it was mainly through the works of Cinus of Pistoia, Bartolo, Baldo and the rest of the commentators that a new methodology based on the influence of Aristotelian epistemology and the use of dialectical methods were applied to elaborate the concepts of presumption and fiction as well as their relationship. In the sixteenth century, the tendency to examine the relationship between the concept of fictio and other related concepts, such as the concept of praesumptio and extensio (analogy) became consolidated in the treatises of presumptions of Alciato and Menochio and the rest of the humanists, who applied philological and historical methods in the analysis of these subjects.12
The continental jurists applied their efforts to adapt the Roman law to the conditions of their time. They tried to conciliate the tension between a static system that was considered as valid, on the one hand, and an emergent reality with new and unregulated situations, on the other. To this end, the civilians found in presumptions and legal fictions two powerful instruments for transforming legal reality: in the case of presumptions, by approximating as far as possible legal reality to natural reality, and in the case of legal fictions, in contrast, as an instrument that constructs legal reality by deviation from natural reality (Todescan 1979, pp. 177–178).
The civilians turned to Roman law in an effort to systematize and identify the rationale of each concept. These subjects were dealt with in a series of passages dispersed throughout the different parts of the Compilation of Justinian. The Roman jurists achieved a masterful application of these concepts, but they did not elaborate a theory. Regarding the concept of praesumptio in Roman law, it was mainly understood as a method for reaching decisions in situations of uncertainty, irrespective of whether the decision was based on considerations of probability and common opinion, or on reasons of convenience or justice (aequitas).13 The concept of fictio iuris was understood as a powerful instrument for the transformation and adaptation of the Ius Civile to new situations, either through the creation of legislative fictions (as in the famous fictio legis Corneliae) or through the formulae ficticiae introduced by the praetor.14
In examining the concepts of praesumptio and fictio in Roman law the civilians managed to reduce a mass of particular cases into a more limited number of general principles with the intention of capturing the essential notes of each concept through a series of definitions, classifications and distinctions. These efforts could be synthesized as follows.
The notion of presumption characteristic of the ius commune is condensed in a definition elaborated by the canonist Tancredi in the twelfth century that was subsequently repeated in the works of the following centuries: “Praesumptio est argumentum ad credendum unum factum surgens ex probatione ulterior facti” (Decottignies 1950, p. 33; Giuliani 1971, p. 166).
According to this definition, presumption consists in an indirect and conjectural type of reasoning that operates in situations in which direct evidence is missing. A fact is thus established as a result of a process of reasoning that goes from the ascertainment of one fact or group of facts, to the assumption of the existence of another fact (Campitelli 1986, p. 261; Giuliani 2009, p. 24).
This way of understanding the concept of presumption reveals a strong influence of rhetoric in the elaboration of the doctrine of presumptions. As Cujas, a French legal humanist of the sixteenth century expressed:
Presumptions are only conjectures, arguments (…) the burden of proof shifts to the person against whom the presumption is made. Presumptions prevail unless there is counter proof (…). Little has come to us about presumptions. However, whatever can be said about presumptions should be said by the ‘rhetores’, not by the jurists: for they are factual in nature.15
In fact, the medieval concept of presumption was the equivalent to the rhetorical notion of argument (argumenta), one of the species of the rhetorical category of artificial proofs. As characterized in Quintilian’s Institutio Oratoria, an argument is a process of reasoning affording a proof, by which one doubtful thing is established by reference to another thing that is certain.16
On the other hand, the rhetorical theory of signs provided the grounds for the well-known classification of presumptions . Praesumptiones iuris et de iure (conclusive presumptions) were associated with the necessary sign (tekmerion). In this case, the connection between a known fact and an unknown fact was believed to be so strong that the presence of the former is a conclusive proof of the existence of the latter, excluding any possibility of rebuttal. Praesumptiones iuris tantum (rebuttable presumptions) were associated with the probable sign (eikos). In this case, the presumption was also legally established, but since the connection between two facts was only probable it was open to rebuttal. Finally, presumptions of fact or human presumptions (praesumptiones facti vel hominis) were also based on a probable connection between a known fact and an unknown fact, but they were not legally established.
As for the concept of fiction, the main elements are condensed in a definition by Cinus of Pistoia (1270–1336) that was subsequently adopted by the jurists of the next generations as a starting point for the elaboration of the doctrine of fictio iuris. In examining the relationship between praesumptio and fictio, Cinus of Pistoia defined the latter as follows: “fictio est in re certa contrariae veritatis, pro veritate assumptio”.
Following the method of Aristotelian classification by genus and species, Cinus of Pistoia puts the element of assumption at the centre of the concept of fiction, which is later specified as an assumption as true of a fact that is known to be contrary to the truth (in re certa contrariae veritatis) (Todescan 1979, p. 106; Thomas 1995, p. 17).
Cinus of Pistoia’s definition was criticized for being too broad, encompassing all kinds of falsehoods. Bartolo and Baldo managed to narrow down this concept to the realm of law by adding that it is an assumption made by the law for having certain legal consequences (a iure facta assumptio), but they also added the requirement that the legal fiction should refer to possible hypotheses (fictio est in re certa, eius quod est possibile contra veritatem a iure fact assumptio). All the subsequent definitions of the commentators of the following generations attempted to achieve a complete characterization of the concept of fictio, and yet the main elements of the concept of fiction identified in Cinus of Pistoia’s definition remain.
Thus, in the fiction established in the fictio legis Cornelia, the truth is that a Roman citizen had been captured by the enemy and later returned; by virtue of a fiction, the law assumed that this person had never been absent for the purpose of maintaining the validity of his will.
The commentators observed a close relationship between the concepts of praesumptio and fictio. In both cases a fact is assumed to be true, and from that assumption certain legal consequences are attached. This affinity seems even stronger in praesumptiones iuris et de iure, the term used by the civilians to refer to what is called today conclusive presumptions , since in these cases a fact is assumed to be true, and no evidence to the contrary is admitted (Todescan 1979, p. 175).
But the civilians observed a basic difference between these concepts. In fictions, something that is known to be false is feigned as true, while in presumptions there is no evidence about the truth or falsehood of a fact. Presumptions operate in situations of doubt.17 They are probable conjectures that are founded on truth and on what generally happens, while fictions are legal declarations adverse to truth. The concept of presumption is associated with doubtful and uncertain hypotheses, while legal fictions are based on certainties (Thomas 1995, p. 17). The degree of doubt that is always present in presumption may vary in decreasing order, from praesumptiones hominis to praesumptiones iuris et de iure. But even praesumptiones iuris et de iure were conceived as legal declarations about doubtful matters, while legal fictions were described as falsities.18
However, it should be observed that despite the proximity in the elaboration of the doctrines of both presumptions and legal fictions during this period, the history of these concepts follows different paths. The concept of presumption has been related historically to truth and conjectural reasoning about questions of fact.19 The concept of legal fiction, in contrast, has been related to questions of law and has been historically conceived as an instrument for the creation, modification and adaptation of law.20 The gap between questions of law and questions of fact would indicate two different modes of investigation, the former as eminently uncertain, while the latter as requiring certainty.21
At this point someone might object that this is all part of history , since these conceptions are not reflected in the common understanding of both the concepts of presumptions and fiction. So, to what extent does this intellectual tradition still survive in the common understanding of the concepts of both presumptions and fictions? This question deserves at least a schematic response.
The traditional conception of presumptions of the ius commune still survives in both the Continental and the Anglo-American traditions.
In the Continental tradition presumptions are characterized as inferences, mental operations and logical procedures by which an unknown fact is inferred from a known fact. These inferences may be established by a rule of law, or may be left to the discretion of the judge. In the former case, the presumption is called “legal”, which is further subdivided into “relative legal presumptions” that could be defeated by evidence to the contrary or they could be “absolute legal presumptions”, which do not admit any evidence to the contrary.22
In the Anglo-American tradition, the British treatises written in the nineteenth century were strongly influenced by the continental doctrine of presumptions .23 The term “presumption” was understood as a synonym of “inference” almost in the same terms as the civilians did.24 As regards to the common understanding of presumptions in the modern law of presumptions, it is worth mentioning that legal writers have constantly warned against the use of “presumption” as a synonym of inference. But despite the efforts of Thayer, Wigmore, Morgan and scholars of the following generations, the term “presumption” is still used to refer to a rule that requires the drawing of an inference from the existence of one fact to the existence of other facts and legal operators hold that presumptions almost carry an inferential relationship.25
16.3 The Theoretical and Practical Dimensions of Presumptions and Legal Fictions
The analysis of the concepts of presumption and legal fiction is largely problematic because of the ambiguity of these expressions. These terms are used in a variety of meanings and for a variety of purposes by courts, legislators, commentators and legal philosophers. Several confusions and disagreements are due to the unawareness of the fact that these expressions are used to refer to a variety of phenomena.
As observed by Riccardo Guastini (1992), the term “legal fiction” is applied to a variety of different situations: (i) It is used to refer to statutory or legislative fictions, such as the famous fictio legis Cornelia or the statutory fiction of the unborn child. (ii) It is also used to describe historical, creative or jurisprudential legal fictions, i.e. a judicial technique conceived to modify an existing rule in order to make it applicable to new situations, while leaving the same wording, as when “the English court pretended that the Island of Minorca was a part of the city of London”.32 (iii) The same expression is also used to refer to fictitious entities, i. e. mental constructs of the legal science upon which we speak as if they exist, as in the Kelsenian analysis of the concepts of persons, state and organ.33 (iv) Furthermore, the term “legal fiction” is used in the sense of a false representation, in relation to an ideology, as the fiction that judges do not make the law.
A similar situation occurs in respect of the use of the term “presumption”. Among the principal meanings in which this expression is used in legal language it is possible to identify the following: (i) “Presumption” sometimes designates a general principle or a maxim of legal reasoning.34 (ii) “Presumption” sometimes describes a statement about the usual connection between two facts, according to which the assertion of the existence of one of these facts entitles one to presume the existence of another fact.35 (iii) Additionally, “presumption” sometimes denotes a rule of substantive law formulated in presumptive terms, as in conclusive presumptions .36 (iv) “Presumption” is also used to describe a rule that changes the burden of proof to the opponent.37
The very fact that the same expression is used to refer to such a variety of different situations is sufficient to generate doubts on the explanatory power of the traditional distinction between presumptions and fictions (i.e. legal fictions as consciously false assumptions or false statements, and presumptions as assumptions that may be true).
However, there is a particular ambiguity that is possibly more basic and perhaps more persistent that affects both the concepts of presumption and fiction and in consequence the relationship between them. This ambiguity is produced by the confusion between the role of presumptions and legal fictions in theoretical and practical discourse , i.e. for not discriminating the use of these concepts for theoretical and cognitive purposes, from their use for practical and normative purposes.38
The traditional distinction overlooks this ambiguity when it defines presumptions and legal fictions in general as assumptions, irrespective of whether this assumption is established in a rule of law or is the result of a mental operation.
In fact, the traditional approach to these concepts not only disregards this ambiguity but has also contributed to deepen the confusion between the role of these concepts in theoretical and practical discourse by putting an excessive emphasis on epistemological considerations.39 On the one hand, the traditional approach holds that the central features of a fiction are: (i) its deviation from reality, (ii) the negation of truth, (iii) the consciousness of its falsity, and (iv) its nature of false assertions. On the other hand, the traditional approach holds that the basic features of a presumption are: (i) its relation to truth, (ii) the approximation to reality, and (iii) its nature of statements that establish an inferential relationship between two facts, a fact that gives rise to the presumption and a presumed fact.
The following paragraphs are intended to clarify the distinction between the role of presumptions and legal fictions in theoretical and practical discourse by making reference to the opinions of some eminent authors.
16.3.1 The Role of Presumptions in Theoretical and Practical Reasoning
In one sense, the literature on presumptions could be read as a struggle to differentiate between the use of presumptions as a synonym of inferences, from the use of presumptions as rules that apply legal consequences when certain conditions are verified.
As a matter of fact, it has been in the field of evidence, not in the field of legal theory, where this ambiguity has been mainly detected. For more than a century, legal scholars have warned us against the confusion between the use of presumptions as rules and the use of presumptions as inferences. As observed by John Henry Wigmore:
The distinction between ‘presumption’ in the sense of a mere circumstantial inference and in the sense of a rule of procedure affecting the duty of proof has in modern times led to confusion. The term is often met with in the sense of ‘inference’, as applied to the probative value of ordinary circumstantial evidence (Wigmore 1937 Sect. 6 n. 1.)40
In making this observation Wigmore was following one of the main contributions of his former professor James Bradley Thayer, who in response to James F. Stephen’s definition of presumptions as rules that require one to draw an inference, argued that “it involves the misconception that the law has any rules at all for conducting the process of reasoning”. In stating this, Thayer urged legal scholars and authorities to discriminate the use of presumptions as statements about what is probable from the use of presumptions as a rule of law that attaches legal consequences:
A rule of presumption does not merely say that such and such a thing is a permissible and usual inference from other facts, but it goes on to say that this significance shall always, in the absence of other circumstances, be imputed to them. (Thayer 1898, p. 317)
In the light of these considerations, Wigmore, Morgan and several evidence scholars of the following generations argued in favor of a redefinition of the concept of presumption, reserving this expression for the rules that require the trier of facts to hold a fact as true, and using the term “inference” to refer to the process of proof.41