The idea of presumption in the late ius commune : a study of Jacopo Menochio's De praesumptionibus (1587)

Legal presumptions are often seen under an unfavourable light. According to a recurring argument they are associated with the baroque niceties and constraints of the system of statutory proofs that marked the late ius commune - often represented as a phase of decadence and unoriginality. In this connection they are depicted as the translation into the province of evidence of the model that dominated the epistemology of the time: the tired and sterile phase of late Aristotelianism. There are reasons to revise this traditional view. Beginning from an examination of De praesumptionibus (1587) by the Paduan jurist Jacopo Menochio (1532-1607), my paper attempts to state a thesis about (a) the nature of and (b) the positive role that presumptions had in the development of late-sixteenth century private law. These two points structure this dissertation in two parts. Part I shows that Jacopo Menochio held a coherent idea of presumption, the focus of which was a concern with its epistemological status. In his mind presumption was an inference from a known to an unknown fact, modelled upon the state-of-the-art epistemology of the practical sciences revived in those years in Padua: Aristotle’s Rhetoric. The concern with reasoning was fundamental to the notion of presumption furthered by Menochio, and contributed to place presumptions and artificial proofs at the centre of the renewed figure of the professional jurist. If in the romano-canonical system of proof the judge was an automaton, as John Langbein wrote, with Menochio he turned into a reasoning automaton. Part II advances the thesis that the recourse to presumptions was a solution that counterbalanced a specific character that legal science assumed in the last decades of the sixteenth century.EThOS - Electronic Theses Online ServiceGBUnited Kingdo