Law and Philosophy

‘Legal Presumptions as Moral Shorthand’

Dr Conor Crummey (Maynooth)

3:00—5:00pm, Halliday Room (5-8 Professor's Square)

Glasgow Law and Philosophy Network

Abstract: 

Presumptions are usually thought of as reasoning devices that we deploy to help us reach the right decision in various domains. When communicating, we do well to presume that the other party is attempting to be truthful, informative, clear etc. We generally think that we should presume that we ought to treat people the same until it is shown that they are different in some relevant way that justifies differential treatment. If I have arranged to meet you for coffee and you don’t show up, I will and probably should presume that you forgot, and not that you deliberately no-showed to humiliate me.

In law, presumptions are familiar. Adjudicative presumptions are often articulated as practical instructions for how a court or decision-maker should proceed unless and until a particular evidentiary burden is satisfied. There are various common law presumptions that put a ‘thumb on the scales’ in this way. There are also ‘statutory presumptions’; rules of statutory construction cast as ‘presumptions’ about the legal meaning of a statute.

Both kinds of presumption give rise to difficult questions. What triggers their application? How strong should the relevant presumption be? What kind of evidence counts towards the presumption’s rebuttal? Is ‘beyond a reasonable doubt’, for example, an appropriate test for the satisfaction of the presumption of innocence? How ‘clear and express’ does statutory language need to be before judges should interpret legislation in a way that permits the violation of common law rights? These questions depend on the answers to more basic questions, around how to understand exactly courts are doing when they deploy presumptions, and whether their use is justified.

In this paper, I suggest that we can make progress in understanding both kinds of legal presumption by paying greater attention to the operation of presumptions in the inter-personal moral context. My suggestion is that within interpersonal relations, presumptions are best understood as shorthand for complex processes of moral reasoning. I then use this account of presumptions in the interpersonal context to motivate an account of legal presumptions (of both kinds) that is tied to the broader value of legality, or the rule of law. Legal presumptions, on this view, can be understood as shorthand for the more complex process of determining the content of moral rights and obligations whose coercive enforcement we are justified in demanding. I hope this analysis will help shed some light on the notion of presumptions both within and outside law. 

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First published: 9 February 2026