Presumptions and Fictions: A Collingwoodian Approach

Abstract

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.