Since Ancient Rome, presumption has occupied a strong position in jurisprudence. It is considered a legal category, a certain device of legal technique, which provides an opportunity to move from a known fact and its relation to other facts to an implied or supposed ‘fact’ when there is no or limited knowledge. In practice the use of presumptions helps to shorten the span of time used to solve a particular case. In such a way it saves means for the state and all the parties involved in legal procedure, and draws less on intellectual resources of participants involved in legal proceedings.
Variety and prevalence of presumptions is based on three elements: social policy of the state, aspiration to optimize the law and aspiration to provide flexibility, consistency and clarity in legal relations. In nowadays jurisprudence, classification of presumptions into legal (in the narrow sense) and factual, deniable and undeniable ones are the most important because any legal presumption, in the broad sense, causes certain procedural consequences. Usually one of procedural parties gets relief from the burden of proof and upon the other one the burden is transferred (praesumptio iuris et de iure is an exception to this rule). Different presumptions serve different purposes, e.g. helping to go from a well-known fact to a supposedly known fact or to balance various potentials (opportunities) of the parties to the process in order to make them as equal as possible. This is due to the fact that the same term is used for various elements of legal technique that are of different origin and form.
However, not all legal categories which fall under the term of ‘presumption’ can be recognised as being proper presumptions. In this article, while proceeding with the study of the conception of presumption,1 the meaning of presumptions is revealed, the way they are expressed is presented and, with the help of mathematical argumentation, an attempt is made to explain why iuris et de iure forms of presumptions should not fall under the category of legal presumptions.
Bernardo, Antonio Eugenio, Talley, Eric, Welch, Ivo, ‘A Theory of Legal Presumptions’ (2000) 16/1The Journal of Law, Economics and Organization1–49.
Bernardo, Antonio Eugenio, Talley, Eric, Welch, Ivo, ‘A Theory of Legal Presumptions’ (2000) 16/1The Journal of Law, Economics and Organization1–49.)| false