Buch, Englisch, 225 Seiten, Format (B × H): 140 mm x 220 mm, Gewicht: 450 g
Reihe: Analytica
Essays in Early Modern Ethics and Politics
Buch, Englisch, 225 Seiten, Format (B × H): 140 mm x 220 mm, Gewicht: 450 g
Reihe: Analytica
ISBN: 978-3-88405-127-6
Verlag: Philosophia Verlag
Arguments from presumption are based on assumptions that are taken to be true unless and until contrary evidence becomes available.
The essays collected in the present volume investigate study of some fields of application of arguments from presumption in early modern practical thought that are all, in some way or other, of philosophical interest: The role of presumptions for the morality of derogatory judgments; the role of presumption in the justification of the binding power of laws concerning price regulation; the role of presumptions in theories of meaning, especially in the debate about the role of common linguistic usage for legal interpretation; the role of presumptions for problems in political philosophy such as the treatment of so-called excepted crimes (high treason and witchcraft), the question of whether usucaption (the acquisition of ownership through long-standing possession) can take place in international relations; the role presumptions in political decision-making as well as the moral and political significance of the presumption in favor of the justice of a given action.
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Contents
Acknowledgements 9
Note on Translations and Citations 11
Abbreviations 13
Introduction 15
Chapter 1
Domingo de Soto on Presumptions, Doubts and Noncomparative Justice
1.1. Introduction 33
1.2. Doubts, Affects and Truth 35
1.3. Doubts, Presumptions and Natural Rights 40
1.4. Natural Law and Judgmental Duties 47
Chapter 2
Presumptions, Value and Justice in the Late Scholastic Controversy over Price Regulation
2.1. Introduction 53
2.2. Price Regulation and the Nature of Value 56
2.3. Price Regulation, Commutative Justice and Distributive Justice 61
2.4. Price Regulation, Obligation and Presumption 65
Chapter 3
Presumptions and Common Usage in Sixteenth-Century Theories of Juridical Interpretation
3.1. Introduction 77
3.2. Varieties of Common Usage 79
3.3. Presumption, Probability and Verisimilitude 82
3.4. Presumption and Customary Law 86
Presumption and Common Usage 90
Chapter 4
Presumption, Torture and the Controversy over Excepted Crimes
4.1. Introduction 103
4.2. Concepts of Exception 105
4.3. Delrío on Presumptions and Excepted Crimes 108
4.4. Tanner and Spee on Presumptions and Excepted Crimes 113
4.5. The Demise of the Concept of Exception 118
Chapter 5
Johannes von Felden on Presumption and Usucaption
5.1. Introduction 127
5.2. Usucaption and Presumption 129
5.3. International Justice and the Society of States 133
5.4. Presumptions and the Authority of International Courts 140
Chapter 6
Leibniz on Presumption and Usucaption
6.1. Introduction 151
6.2. Usucaption, Presumption and Legal Fictions 152
6.3. Usucaption, Presumption, and Intention 155
6.4. Usucaption, Presumption, and Good Faith 159
6.5. Usucaption and International Arbitration 164
Chapter 7
Leibniz on Presumption and Cognitive Simplicity
7.1. Introduction 173
7.2. Simplicity and the Ontology of Requisites 176
7.3. Presumptions and the Metapyics of Action 178
7.4. Presumptions and Political Decision Making 180
7.5. The Presumption of Possibility 184
7.6. The Presumption of Justice 186
7.7. De-dichotomizing Cognitive and Ontological Simplicity 192
References 201
Index 217
Introduction
The essays collected in the present volume investigate the workings of arguments from presumption in early modern practical thought. Intuitively, arguments from presumption are based on assumptions that are taken to be true unless and until contrary evidence becomes available. The concept of presumption originates in the Roman-law tradition, and the essays collected here trace ways in which the juridical concept of presumption was used and critically debated in early modern theories of meaning, of morality, and of politics. What makes the concept of presumption fascinating from the viewpoint of argumentation theory is that presumptions were traditionally seen as tools for dealing rationally with situations of uncertainty. Since such situations are typical not only for jurisprudence, but also for hermeneutics, moral agency, and political decision making, arguments from presumption can lead to crucial insights into the nature of early modern rationality. Moreover, since some of the problems that sixteenth and seventeenth century thinkers treated by invoking presumptions have contemporary counterparts that are usually dis- cussed without invoking presumptions, some of the early modern considerations may also shed light on contemporary debates.
The concept of presumption has triggered widespread interest in contemporary argumentation theory.1 There are detailed studies on the concept of presumption in Roman law and also the reception and development of this concept in medieval secular and canon law.2 However, there is surprisingly little work on the role of presumptions in early modern thought. Some exceptions to this observation concern Leibniz’s usage of presumptions, which has found the attention of scholars such as Ezequiel de Olaso, Hans Burkhardt, Robert Merrihew Adams, Mogens Laerke and Matthias Armgardt.3 Also, civilian treatises on presumptions from the period between 1580 and 1620, as well as the relation between presumptions and circumstantial evidence in the common law tradition have been studied.4 As for the scarcity of studies concerning other authors and other periods in early modern thought, there is a plausible explanation: The sixteenth and early seventeenth centuries have been seen as a period of stagnation for the legal theory of evidence from which the notion of presumption derives.
Over a millennium and a half, the Roman law tradition has accumulated a huge body of theoretical reflections concerning the evaluation of witnesses and testimonies, the assessment of factual indications (indicia), the question of how small pieces of evidence can reinforce each other such as to form full or so-called “half-full” proofs, and the question of how presumptions could rationally supplement testimonies or indications that are by themselves too weak to form full or half-full proofs. However, in his magisterial study of the concept of probability before Leibniz, James Franklin states that “[i]n the three hundred years from Baldus to Leibniz, there were no conceptual developments of any importance in the legal theory of evidence. If the law is to keep to a non- numerical approach to evidence there is essentially no development possible.”5 To substantiate this view, Franklin gives a brief overview of sixteenth-century handbook literature regarding legal proofs and presumptions.6 Indeed, voluminous collections of legal cases such as those by Jacopo Menochio (1532–1607)7 or Giuseppe Mascardi (d. 1586)8 contain very few reflections concerning the theoretical foundations of the issues that they cover.
Should one conclude from the disappointing nature of such works that there is nothing interesting to be said about early modern treatments of presumptions? To be sure, even where the notion of presumption occurred in more theoretically oriented settings, sixteenth and seventeenth-century thinkers made use of a fully developed conceptual framework. As far as the classification of different kinds of presumptions and the rules concerning how to deal with conflicts between diverging presumptions, early modern thinkers invoked a commonly shared background. However, these early modern thinkers did find a variety of fields of application for arguing with presumptions, and these applications have not yet been studied in detail. The present book is not primarily a study in legal history, although the origin of the theory of presumptions in the theory of law will always have to be kept in mind. Rather, it is a study of some fields of application of arguments from presumption that are all, in some way or other, of philosophical interest. This is the case with the role of presumptions for the morality of derogatory judgments. It is the case with the role of presumption in the justification of the binding power of laws concerning price regulation.
It is the case with the role of presumptions in a special field of Renaissance theories of meaning the debate about the role of common linguistic usage for legal interpretation. It is the case with the role of presumptions for problems in political philosophy such as the treatment of so-called excepted crimes (such as high treason and witch- craft), and the question of whether usucaption (the acquisition of ownership through long-standing possession) can take place in international relations. Finally, it is the case for the question of how an analysis of the metaphysics of action could be relevant for political decision-making and for providing insights into whether actions should be presumed to be just. In this sense, looking into the argumentative functions of presumptions in these fields may lead to a variety of novel insights into early modern ethics and politics.
Presumptions in Early Modern Law:
The Common Frame of Reference
Before giving a more detailed overview of the specific questions pursued in the present study, it will be useful to summarize some aspects of the common frame of reference in which all these matters were discussed in the early modern period. Three main issues can be distinguished in this frame of reference: (1) the distinction between three different kinds of presumptions; (2) the role of presumptions in shifting the burden of proof; and (3) the treatment of conflicts be- tween competing presumptions. For the sake of convenience, I will focus here on three widely-cited sixteenth-century authors who give excellent overviews of these matters: Andrea Alciato (1492–1550), Simone de Praetis (1510–1602) and Francesco Mantica (1534– 1614).
As Praetis explains the formation of the term “praesumptio”, “it is a composite of the preposition ‘prae’ which signifies ‘before’ or ‘earlier’, and the term ‘sumptio’ from the word ‘sumo, sumis’, which can signify grasping, taking, choosing …” This corresponds closely to Rescher’s characterization of presumptions as “takens”rather than “givens.”9 Within the realm of presumptions in medieval and early modern legal thought, three basic kinds were distinguished, all of which have names that need some explication: (1) praesumptio iuris et de iure, (2) praesumptio iuris, and (3) praesumptio hominis. Alciato gives the following definition of the praesumptio iuris et de iure: “It is a decree of the law that presumes something and that states something about what is presumed as if it were assured about it.”10 An example for a presumption of this kind is the presumption that someone who is accused of a crime is to be considered innocent unless and until proven guilty. As Alciato explains, against such a presumption a proof to the contrary is not accepted.11 He defends the idea that, strictly speaking, this rule holds generally. He notes that, even if the accused has such presumption in his favor, his confession can be accepted. But Alciato argues that strictly speaking this is not a limitation to the working of the presumption because a confession is not properly understood as a proof but rather as something that makes a proof superfluous.12 Also, Alciato points out that such presumptions lose their efficacy if the accused does not protest against their violation. But then, Alciato argues, what happens should not be described as a refutation of the content of the presumption but rather as a renunciation of a right.13 Alciato also notes that the presumption is not applied when the action in question does not have the qualities that would occasion the presumption14 (think of a situation in which someone does not act in a way that gives occasion for an accusation). But again, this cannot be regarded as a refutation of the presumption itself; rather, the presumption does not apply to the person in the first instance.
As Alciato explains, praesumptiones iuris et de iure “are called so because the law takes something to be true, before matters are decided otherwise, and without any proofs.”15 On first sight, the reference to the possibility of deciding matters otherwise seems to be in tension with the view that such presumptions do not allow for a proof to the contrary. Alciato dissolves the apparent tension by pointing out that such a decision can arise from the confession of the party in whose favor the presumption works. Conceding the possibility of confession, he argues, is compatible with the principle that such presumption cannot be revised through contrary proofs because a confession is not a proof but rather an act that relieves the other party from the burden of proof.16 At the same time, Alciato cautions that this does not imply that it would be sufficient to prove the confession through testimonies, since the proofs through witnesses is less certain than other forms of proof.17 Moreover, he emphasizes that, even if a party has such a presumption in its favor, it must actively make use of this fact. If a party does not raise objections against a sentence that violates this presumption, it is assumed that the party renounces an advantage and gives tacit consent to the sen- tence.18 This holds in particular, when the party concerned has left the time for appellation pass unused.19 Also, this form of presumption allows for what Alciato calls “indirect proofs”—proofs that do not relate to the content of the presumption but rather to the question of the presumption applies to a particular situation.20 For instance, while the presumption that immemorial possession is legitimate itself cannot be revised through contrary evidence, it can be proven that a particular instance of possession does not go back to immemorial times.21
Like the praesumptioiuris et de jure, the praesumptioiuris is specified by a law. However, such a presumption is taken to be evidence-based and, therefore, to be revisable through contrary evidence. Alciato gives the following definition: “It is a probable conjecture that arises from a certain sign, which, as long no other sign is adduced, is taken for the truth.”22 As he explains, “I have said ‘probable conjecture’ because every presumption of the law is based on what possesses verisimilitude …, and the presumption that has more verisimilitude is more efficacious.”23 Presumptions raise intricate questions concerning the relation to truth, and one question concerns the meaning of the term “verisimilitude.” Is this term synonymous with the term “probabilitas” that often occurs in the same context, or does it denote a different concept—a concept that has to do with a particular relation between presumptions and truth? The answer seems to be that for some authorities in the Roman law tradition the terms are in fact synonymous and denote the concept of probability as to what happens commonly (or most frequently); however, some sixteenth-century thinkers seem to connect “verisimilitude” with what corresponds to our assumption concerning human nature.24
As to the thematic realm to which such revisable legal presumptions could be applied, two seemingly contradictory rules were often quoted. The first rule says that “a presumption relates only to the realm of the factual since only there, conjectures have their place.”25 The second rule says that “regularly, facts are not presumed but have to be proven.”26 As Alciato explains, the second rule holds especially for accidental facts - those that do not derive from the essence of things - because “extrinsic accidents are not presumed.”27 However, the contradiction is only apparent. As Alciato puts it, the second rule is not applicable to the cases “in which facts are presumed on the basis of a previously existing cause.” In such cases, “always once something certain is presupposed, the presumption follows from thence. But we call the presuppositions signs; for as arguments have their seats or places from whence they arise …, so also do presumptions arise from certain places …”28 In spite of this seemingly clear-cut solution, the relation between facts and presumptions turns out to be more complicated since it also may involve normative considerations. These normative considerations do not themselves belong to law but rather to how things and persons should be due to what natural law demands.29
Like the praesumptio iuris, and unlike the praesumptio iuris et de iure, the praesumptio hominis can be defeated by contrary evidence, but unlike the praesumptio iuris and the praesumptio iuris et de iure it is not defined by the law. Who is the person that the name of this kind of presumption refers to? Probably it is the person who forms the presumption since the expression “praesumptio hominis” sometimes is used in conjunction with the expression “praesumptio iudicis”30— the presumption formed by a judge. Praetis explains that it is a presumption “that has to be made by a human being, when the law does not say anything about the required circumstance.”31 Consequently, he gives the following characterization: it is “a cognition, which results from circumstances, and changes, fortifies or weakens the attitude of the one who judges, according to how strong a foundation the circumstances provide, from which it results …”32 Both characterizations come together, when Praetis writes that to presume “is nothing but to grasp, take and chose one side rather than the other, and to cling to it according to the force of circumstances and inclinations, until greater certainly becomes available.”33 Thus, this kind of presumption is characterized not only as an attitude of taking something to be true in a provisional way but also as an attitude that comes in different degrees of subjective strength. The conception of degrees of strength of subjective inclination also explain the notion of “violent presumption” that relates to a presumption that so much subjective strength that, for the time being, what is presumed is not only taken to be true but also to be certain. For instance, Mantica puts it thus: “A violent presumption is to be taken for certainty, until through a most evident argumentation the contrary is proven.”34
But a praesumptio hominis also involves a further relation to a person. As Praetis puts it, such a presumption is formed under circumstances that depend on the actions of the person for whom the presumption is meant to assist.35 Praetis also emphasizes that for the formation of such a presumption no certain rules can be given.36 Rather, what has to be done is to give careful attention to circumstances, which is why such presumptions essentially depend on the intellectual and moral virtues of the person who forms them. Praetis wraps up this idea when he characterizes such a presumption as “the inclination of the mind of a good person to choose one of two extreme options on the basis of his understanding, arising from a noble conjecture.”37 What is conspicuously absent from this characterization is the reference to signs. Certainly, some person-related presumptions can be based on evidence concerning the actions and character of a particular person; however, not all person-related presumptions need to be evidence-based in this way. Rather, they also can be based on what corresponds to our assumptions concern- ing human nature in general.38
Despite their profound differences, the crucial effect that all three kinds of presumptions have in common is that they shift the burden of proof to the adversary.39 In the early modern literature on presumptions, I have found only one exception to the rule that presumptions shift the burden of proof. This exception concerns the consequences of the presumption in favor of the justice of a judge. As Alciato notes, when an appeal against the sentence of the judge is made, the presumption in favor of the justice of the judge is up- held without thereby shifting any burden of proof. This is so, Alciato argues, because at the court of appeal exactly the same proofs have to be made as at the court that has previously dealt with the case.40 Alciato notes that such a presumption can have a legally relevant effect: The party that appeals is obliged to cover provisionally the expenses of the party in whose favor the presumption of the justice of the judge works, if this party would otherwise be unable to afford legal assistance.41 But it is one of the rules of Roman law that the exception confirms the rule for the cases that are not excepted.42
This is why the exception concerning the situation of pending ap- peals does not invalidate the rule that, generally, presumptions shift the burden of proof. In this sense, the notion of presumption is a methodological notion that regulates who has to prove what—which is why arguing from presumptions is a powerful tool for arguing in situations of uncertainty.43
In late medieval and early modern legal thought, the game of relieving oneself from the burden of proof became enormously complicated through the fact that the law recognized a large number of competing presumptions, which in turn could contradict the praesumptiones hominis. This is why a system of (rather vague) rules emerged that gave advice about how to deal with situations of the “conflict of presumptions.” A few examples taken from Mantica will suffice for now: (1) The presumption that has some verisimilitude is overruled by the presumption that has more verisimilitude.44 (2) Presumptions can be cumulated, even if they cannot be com- pared with each other concerning their relative strength.45 (3) A presumption based on common law overrules a presumption in favor of the possessor; in particular, a presumption based on a rule of law overrules any contrary presumption.46 (4) The presumption that de- rives from the quality of the
legal act is stronger than the presumption that derives from indications concerning the intention of the agent.47 (5) Someone who carries out an act without the required legal form is presumed to know that the act is invalid, and the general presumption in favor of the validity of an act is overruled here by the presumption of a legal fraud.48 (6) Presumptions that are based on natural reason are stronger than presumptions that are based on what is reasonable in civil life; for example, a presumption based on a natural affect is stronger than a presumption based on an accidental circumstance.49 (7) In interpreting legal documents, presumptions based on what charity demands are stronger than presumptions based on the common usage of words.50 (8) Presumptions that are more benign are to be preferred over presumptions that are less benign; the reason for this is that, due to its inherent ambiguities, the law always has to be interpreted benignly, “that is, with the moderation of natural law.”51 However, Mantica also offers an alternative characterization of “benign” as “what is useful to the state.”52 Depending on which understanding of favoring the more benign side was favored, this rule thus led to diverging views concerning which presumption should be favored.53
The Plan of this Volume
Already this brief overview indicates that the common assumptions underlying the early modern practice of arguing with presumptions left plenty of space for controversy. This is highly relevant for the various fields of discourse in which presumptions were applied—the theory of judgmental duties, the theory of economic justice, the the- ory of meaning and interpretation, the theory of excepted crimes, the theory of international relations, the theory of political decision making and the theory of moral modalities. It is with the role of presumptions in these fields of discourse that the chapters in this volume will be concerned.
Chapter 1 examines an issue from the discussion concerning du- ties of noncomparative justice in the writings of the sixteenth- century Spanish moralists: the question of how we should interpret doubtful evidence concerning the moral qualities of others. Domin- go de Soto (1494–1560) suggests that merely avoiding a false nega- tive judgment about others in a situation of doubtful evidence may be unjust. This suggestion sets his view apart from his contempo- rary, Thomas de Vio Cajetan (ca. 1468–1534), and also from the recent treatment of doubt in Joel Feinberg’s work on non- comparative justice. According to Feinberg, the morality of extra- juridical judgmental justice is grounded in a particular kind of moral emotions, namely, truth-related emotions.54 In his view, what is morally objectionable about derogatory judgments is that they vio- late truth and, hence, trigger moral emotions caused by violations of truth. What motivates Soto’s suggestion is the insight that what judgmental justice demands is not primarily truthfulness but rather respect for others’ natural rights of sociality. Soto uses the idea of natural needs and natural rights based on natural needs in order to identify a group of situations in which true derogatory judgments are unjust and false derogatory judgments are just: Forming and com- municating true derogatory judgments are unjust when they are not done for the sake of the common good; and forming and communi- cating false derogatory judgments are not unjust when the error has
been unavoidable on the basis of the available evidence. Soto devel- ops an account of the role of natural rights in such cases: a false but just judgment is one that respects the natural rights of others; and a true but unjust judgment is one that violates the natural rights of others. Moreover, the natural rights that Soto has in mind are the right to live a life in society (a right that is natural because humans are by their nature social beings) and the right to live a life of virtue (a right that is natural because humans are by their rational nature capable of being virtuous). This is why he maintains that there is a moral obligation to hold positive opinions about others unless and until contrary evidence becomes available. Interestingly, Soto thinks of the default structure of such opinions in term of the notion of presumption prominent in legal methodology. However, unlike his teacher Francisco de Vitoria he does not understand the relevant kind of presumption as analogous to the presumption of inno- cence—which derives its force from law and is non-revisable—but rather as analogous to person-related presumptions that are sensitive to evidence and therefore can be revised.
Chapter 2 explores the presumption in favor of the justice of decisions of the sovereign and its application to the question of the justice of price regulation. In particular, it will be argued that look- ing into this concrete field of application can clarify the circum- stances under which forming such a presumption can be rational. Conversely, analyzing circumstances under which the presumption in favor of the justice of the prince is an expression of practical ra- tionality explain why acts of legislation that are fraught with a high degree of uncertainty concerning the practical outcomes can indicate why price law can be legally binding—not only as a matter of obe- dience toward the superior but also as a matter of conscience. One of the conditions that have to be met in order to form this presump- tion in a rational way, it was generally held, is that the prince ex- presses a cause that fulfills the demands of justice. As it turns out, the question of whether acts of price regulation can match this crite- rion was controversially debated among the sixteenth- and early seventeenth-century Spanish moralists, who were the leading eco- nomic thinkers of their time. Some of them, most prominently Luis de Molina (1535–1600), adhered to the view that, under all circum- stances, the just price is defined by the price range that can be ob-
tained under fair market conditions—i.e., under conditions that are free from deception, fraud, and menace. Even in situations of scarci- ty, he held, the prince can define legal prices only within the range of the fair market price, since any price outside this range would cause an injustice to the owners of the good concerned. However, a diverging line of thought can be found in Luis Mexía, who pub- lished a monograph on the topic in 1569, and Melchor de Soria, who took up the topic in 1627. These thinkers developed theories of price regulation in order to analyze the demands of justice in situations where markets cease to function—be it through natural conditions, wars or artificially induced shortages in supply. In order to do this, they used a version of the labor-and-cost analysis of value found in the Tübingen-based jurist Conrad Summenhart (1455–1502). The just cause that has to be expressed in price laws, in their view, de- pends on this alternative source of value and leads to demands of commutative and distributive justice that diverge from the demands of justice connected with the fair market conception of value. Also, Mexía and Soria offer detailed considerations concerning the cir- cumstances under which a presumption in favor of the justice of price laws can be formed rationally and thereby offer some fascinat- ing insights into the reasons why such rationally formed presump- tions could render price law morally binding in spite of the uncer- tainty of their outcomes.
Chapter 3 deals with a special issue in the sixteenth-century de- bate about the role of common usage in the constitution and change of the meaning of theoretical terms—a debate that has close analo- gies in twentieth-century ordinary language philosophy. In general terms, this issue has been discussed by Renaissance philosophers such as Lorenzo Valla (1407–1457) and Bartolomeo Viotti (d. 1568), but it also played an important role in Renaissance theories of juridical interpretation. An aspect of the analysis of common usage in Renaissance theories of juridical interpretation that has not yet found much attention concerns the role of presumption. Early mod- ern critics of the idea that the meaning of legal terms could be con- stituted or changed through common usage have pointed out that everyday expressions often suffer from ambiguities that make a precise determination of meaning impossible. Also, they were very much aware of the problem that such expressions could be just ex-
pressions of commonly shared prejudices and errors. For both rea- sons, it seems to be questionable why common usage should be helpful in securing the validity of legal acts and in defining the con- tent of theoretical concepts. I would like to argue that Renaissance theories of juridical interpretation contain some insight that may offer viable answers to these objections. This is so because Renais- sance jurists such as Nicolaus Everardus (1462–1532), Simone de Praetis and Aimone de Cravetta (1504–1569) did not brush aside the objections but rather took them to indicate that matters of common usage involve a degree of uncertainty. Hence, they were looking for a theoretical tool that would allow them to deal rationally with situa- tions of uncertainty, and the methodological notion of presumption is one of the concepts that figured most prominently in Renaissance approaches to the problem of uncertainty. The notion of presump- tion offers a fascinating strategy for giving an account of common usage in the constitution of meaning and the practice of interpreta- tion that regard ordinary ways of speaking neither as an ultimate, unquestionable point of reference nor as something that is invariably ambiguous and flawed.
Chapter 4 takes up another question that is as pressing today as it was in the early modern world: How should a legal system deal with crimes that are perceived as threatening the very existence of a state and the security of its citizens? In early modern legal and polit- ical thought, these crimes were discussed under the heading of “ex- cepted crimes”—crimes that do not fall under the usual rules of le- gal procedure specified in written law. In the sixteenth and seven- teenth centuries, not only crimes such as high treason, assassination, or the violation of princely sovereignty rights (lèse-majesté) were subsumed under this category, but also poisoning and witchcraft. Obviously, such crimes pose problems concerning suitable investi- gative methods that lead to useful juridical evidence. Typically, acts classified as “excepted crimes” are planned and carried out in secret, so that many of the usual procedures of collecting and evaluating evidence are not available. Moreover, such crimes pose problems concerning the question of how to evaluate evidence once it has been obtained. One such problem has to do with the fact that the effects of such crimes are regarded as more dangerous for the state and its citizens than the effects of other crimes. Investigating such
crimes, hence, might be directed more towards protecting the state and its citizens from the effects of such crimes and less towards finding just punishment for persons found guilty of these crimes. Investigating such crimes, hence, might invite modifications both in the methods of obtaining evidence and in the standards of evaluating it. Both early modern supporters of weakening standards of evidence in cases of treason and witchcraft and their early modern critics used the notion of presumption in discussing the viability of the notion of “excepted crimes.” One intuition was that, in order to protect the state, torture is admissible in alleged cases of excepted crimes on the basis of mere presumption, even in the absence of indications against the accused. The other intuition was that presumptions are meant to protect the rights of the accused and therefore exclude tor- ture in the absence of indications against the accused. In this chap- ter, I examine how these matters were discussed in a controversy between three early seventeenth-century Jesuits: Martín Antonio Delrío (1551–1608), Adam Tanner (1572–1632), and Friedrich Spee von Langenfeld (1591–1635). While Delrío developed natural-law arguments in favor of using presumptions for the purpose of protect- ing the state, Tanner and Spee developed natural-law arguments in favor of using presumptions for the purpose of protecting the ac- cused.
Chapter 5 explores another question prominent in early modern political thought that has not lost its relevance for the contemporary world. In early modern theories of international relations, the con- cept of usucaption—the acquisition of ownership through long- standing possession—was a widely accepted device designed to settle territorial disputes on the basis of long-standing control over a territory. The concept of usucaption originates in Roman civil law. According to Roman civil law, mere protracted possession is insuf- ficient for usucaption. At least two further conditions have to be met: (1) The new possessor has to be in good faith when acquiring possession—i.e., the new possessor has to believe that he or she is legally entitled to acquire and to continue holding possession of the object in question. (2) The rightfulness of possession must not have been challenged in court in the meantime. The concept of usucap- tion was introduced into international law by Alberico Gentili (1552–1608), who argues that if the function of usucaption in civil
law is to avoid endless legal disputes, usucaption could also be a suitable tool for avoiding endless political disputes over territorial matters. Hugo Grotius (1583–1645) argues that usucaption in inter- national relations can be legitimately based on what he calls the “presumption of abandonment”—i.e., the idea that if the political leadership of a country did not protest against the loss of a territory for some time, then the leadership can be presumed to have formed the will to give up claims to this territory. Few early modern think- ers have disputed the applicability of usucaption to international relations. However, one who did was the jurist and philosopher Jo- hannes von Felden (d. 1668). In this chapter, I will explore his criti- cism of the extension of usucaption to international relations and his alternative proposals for how to establish a society of states through peaceful resolution of territorial conflicts. As far as usucaption goes, Felden’s views diverge substantially from Grotius’ views on the ownership of nations. While Grotius believes that usucaption is a legitimate part of the law of nations, Felden denies this very idea. He contests the claim that silence alone—which can be caused by oppression or fear—suffices for forming the presumption of aban- donment. Rather, he develops a conception of a society of states that is regulated by a system of courts for international law and he there- by re-introduces the concept of evidence-based presumption into the juridical context from which it originated.
Chapter 6 pursues the issue of usucaption in international rela- tions further. One prominent early modern controversy in which usucaption was invoked concerned the countship of Burgundy, and it is this controversy that led to an illuminating correspondence be- tween Leibniz and his protégé Johannes Werlhof (1660-1711). In a long essay, Werlhof defended Grotius’s stance on usucaption in international relations against criticism by the French historian Pierre du Puy (1582-1651). Du Puy defended the ownership rights of the King of France over the Countship of Burgundy against alle- gations of usucaption on the side of the German Empire. In response to a letter from Werlhof, Leibniz sent to Werlhof a shorter essay on the role of usucaption and prescription in international relations that he had written sometime between 1687 and 1696, and the ensuing correspondence discussed many points touched upon in the two essays. Some of the most interesting points in this exchange concern
the role of presumption in applying the concepts of usucaption and prescription to international relations, and it is with them that this chapter will be concerned. As it will turn out, in Leibniz’s view it is exactly the problem of the loss of reliable evidence that could be used to support historical claims to land ownership that makes the presumption of dereliction a justifiable instrument for the purpose of avoiding conflicts over historical claims.
Chapter 7 investigates the role of the concept of cognitive sim- plicity in Leibniz’s account of presumptions. Leibniz’s treatments of the connection between simplicity and presumption may contribute something significant to contemporary accounts of what makes pre- sumptions plausible. This is so because, while contemporary ac- counts focus on the pragmatic side of cognitive simplicity, Leibniz sought to ground cognitive simplicity in what comes about more easily in reality. To explicate the notion of easiness, Leibniz invokes the ontology of “requisites”—that is, factors without which some- thing could not exist or not exist in the way it does. Actions belong to the category of things that have requisites, and Leibniz’s idea seems to be that the plausibility of the presumption concerning one course of action is higher than the plausibility of the presumption concerning an alternative course of action if the former course of action has a smaller number of requisites, and in this sense comes about more “easily” than the other. This idea has important applica- tions in Leibniz’s political and ethical thought. The role of requisites in the metaphysics of action belongs to the relevant context of Leib- niz’s remarks concerning presumption in political decision making. Here, his precept is that one should form presumptions in favor of the course of action that has fewer requisites than alternative courses of action. Also, the ontology of requisites forms the ontological background of Leibniz’s puzzling claim that, as long as we do not know whether a given action is just, it should be presumed to be just. I would like to suggest that the view that there is a presumption in favor of an action’s being just is closely connected with his con- ception of easiness. The upshot of these considerations will be that it may be a good idea to de-dichotomize the distinction between cog- nitive simplicity and ontological simplicity.
