the historical background to the evolution of presumptions in law and types of presumption.

 

In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial.

There are two types of presumption: rebuttable presumption and conclusive presumption. A rebuttable presumption is assumed true until a person proves otherwise (for example the presumption of innocence). In contrast, a conclusive (or irrebuttable) presumption cannot be refuted in any case (such as defense of infancy in some legal systems).

Presumptions are sometimes categorized into two types: presumptions without basic facts, and presumptions with basic facts.

An example of presumption without basic facts is presumption of innocence.

An example of presumption with basic facts is Declared death in absentia, e.g., the law says if a person has been missing for seven years or more (basic fact), that person is presumed dead

The ancient Jewish law code, the Talmud, included reasoning from presumptions (hazakah), propositions taken to be true unless there was reason to believe otherwise, such as “One does not ordinarily pay a debt before term.”

The same concept was found in ancient Roman law, where, for example, if there was doubt as to whether a child was really the issue of someone who had left money in a will, the presumption was in favor of the child. Medieval Roman and canon law graded presumptions according to strength: light, medium or probable, and violent. These grading and many individual presumptions were taken over into English law in the seventeenth century by Edward Coke.

A rebuttable presumption exists where the law requires a court to presume something is the case until evidence is adduced that proves otherwise. A rebuttable presumption in criminal proceedings can work in favor of an accused or against an accused. There are numerous rebuttable presumptions within criminal law.

The best-known rebuttable presumption is the presumption of innocence. The presumption of innocence continues until the prosecution can prove the commission of a crime beyond a reasonable doubt. It is not up to the defendant to prove that they are not guilty. If the prosecution is unable to rebut the presumption of innocence, the defendant must be found not guilty.

 

Conclusive Presumption or absolute presumption or irrebuttable presumption of law refers to presumption which cannot be overcome or changed by any additional evidence or argument. It refers to rules of law and are usually mere fictions. Modern courts repudiate conclusive presumptions when they are not fictions. For example, a child below 7 years of age is incapable of committing a felony.

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