PRESUNZIONE. — The term p. may be understood in several senses: in the realm of feeling, it denotes an exaggerated confidence in one’s own qualities and is therefore a form of pride; in the realm of the will, p. is a movement that impels a person to undertake more than he can actually accomplish, with the strength at his disposal or which he believes himself to possess. In the natural order, p. is magnanimity (v.), whose task is to moderate the tendency to embark upon difficult enterprises. In the supernatural order, p. comes to stand in direct opposition to the virtue of hope.
I. PRESUNZIONE, A SIN OPPOSED TO THE VIRTUE OF HOPE
It may be defined as a rash confidence of attaining eternal salvation without the means established by God. Grace and glory, goods belonging to the supernatural order, lie beyond the reach of man’s natural powers: whoever wished to attain them by his own means would be in direct opposition to the virtue of hope, since in practice he removes its proper motive, its formal object—namely, the divine goodness, which alone justifies in the creature the expectation of such goods, which can come only from God. Moreover, God ordinarily grants his supernatural goods in accordance with his promises and his attributes. To wish to obtain such goods by another path would mean «to vitiate the object of hope and thus sin against II. This is the case of the sinner who believes that he is forgiven without sincere repentance for his sins, or of one who believes he will be saved while continuing, obstinate in his sin, right to the end. It is an exaggerated confidence in God, contrary to the Providence established by him. Promises that are in fact conditional would be made absolute, or one would wish to emphasize God’s mercy to the detriment of his justice. Hence two forms of presumption, differing in cause and moral culpability. The first gives hope an illusory foundation. The second acknowledges God’s omnipotence, but expects supernatural assistance without acting to merit II.II. HERETICAL, COMMON, OR SIMPLE PRESUMPTION
Theologians call the presumption that places hope on a foundation that is not its proper one praesumptio contra spem or praesumptio haereticalis. It destroys the virtue of hope by opposing its motive: the goodness of God. It is based on a doctrinal error. The “Pelagian” form is based on Pelagian naturalism, which exalts human freedom to the point of attributing man’s sanctification to man alone. The “Lutheran” presumption, deriving from Luther’s doctrine, attributes individual sanctification and salvation solely to the merits of Christ, excluding every cooperation on the part of man. Calvinist predestinationism, which admits absolute predestination, gives rise to the “Calvinist” presumption. The Calvinist and Lutheran presumptions are more serious than the Pelagian, because they would attribute to God a power and a mercy at the expense of justice, thereby attacking divine holiness itself.Theologians call praeter spem the presumption which, without destroying the virtue of hope, introduces some disorder and temerity into its practice. It is right to hope from God for Paradise and for the means of attaining it, but it is temerity and the sin of presumption to hope for that degree of glory which he has reserved for one or another of his elect. God grants to all the graces he has promised; but to defer attending to one’s own salvation, counting on having time to repent at the moment of death, and to expect from him more than he has promised, is to sin through presumption. An act of presumption consists in abusing confidence in divine forgiveness in order to sin with greater frequency, gravity, and freedom; to persist longer in sin; to expose oneself without reason to temptation; or to demand divine graces without the ordinary means of prayer and personal effort.
III. MALICE OF P
Heretical p., that is, the kind that includes dogmatic error, is in itself (ex toto genere suo) a mortal sin because it opposes faith, hope, and the fear of God and causes grave injury to divine justice.Common or simple p. is by its nature (ex genere suo) a mortal sin because it too, in itself, causes grave injury to divine justice and brings great harm to man; but it admits of variations between mortal and venial sin. This sin is despair (v.): indeed, p. acts against divine justice, whereas despair destroys divine mercy; and according to our way of thinking, being merciful is attributed to God more properly than being just and avenging sins (Sum. Theol., 2ᵃ-2ᵃᶜ, q. 2, i a. 2).
IV. PRESUMPTION IN THE SPIRITUAL LIFE
From the dogmatic error on which heretical presumption is founded there derives a false conception of the life and progress of the soul, whereby man places himself outside the conditions of salvation and perfection.Although less radical, ordinary presumption likewise exercises an influence throughout the entire field of spiritual life. While self-confidence, when reasonable and prudent, strengthens the soul, stimulates its energies, and generates courage in initiatives, perseverance in effort, boldness in confronting the struggle and overcoming difficulties, presumption presenting itself as excessive self-confidence produces nothing but harm. Whoever has an exaggerated opinion of himself launches into disproportionate undertakings, considers it useless to seek advice and direction; his fear of danger diminishes to the point of neglecting the necessary precautions, particularly in temptations. If he desires perfection, he believes the virtues he does not in fact possess to have already been acquired, despising the ordinary paths of piety and Christian life.
Every asceticism and every mysticism not founded on humility is presumptuous and therefore ineffective and harmful.
PRESUMPTION (Canon Law). — Logical reasoning whereby, on the basis of the causal connection linking certain natural and human events, one may deduce the truth or, at least, the probability of the truth of an uncertain fact consequent upon a fact or other facts known to us.
It may be asked whether presumption, which is certainly one of the means of proof in a trial, is an institution of substantive or procedural law. As regards the CIC, it seems certain that the answer must be that proof, and consequently presumption, belongs to procedural law: in fact, De praesumptionibus appears in Book IV, Chapter 2 of Title X, De probationibus; and proof is considered in its various subcategories (including presumption) only when produced by the judge or evaluated by him. The Civil Procedure Code of the Vatican City State (Book I, Title III: Delle prove) seems partially to reproduce the concept of canon law explained above; it does not expressly include presumptions among the means of proof, but refers to them in various places (cf. Section 3ᵃ, cited title, art. 91 § 2 and art. 92 § 1: «La confessione fatta fuori del giudizio ad un terzo costituisce fonte di p. semplice», where the term presumption is expressly used and in this case indicates a p. hominis; just as § 1 contains a p. iuris tantum). The question could therefore be called merely doctrinal and not practical as regards canon and Vatican legislation, whereas this is not so with regard to Italian law: in fact, proof and, consequently, presumption are included both in the Code of 1865 and in the current Code, while the Code of Civil Procedure deals only with the taking of evidence. In substance, Italian law distinguishes between what proof is and what proof means in a trial: it therefore attributes to proof and presumption the character of institutions of substantive law.
Presumptions are divided into presumptions of law, or legal presumptions, and presumptions of man, or of the judge. Legal presumptions are in turn divided into p. iuris tantum and p. iuris et de iure. The difference among the three types of presumption is of the greatest importance: it is sufficient to bear in mind canon 1826 of the CIC: «Contra praesumptionem iuris simpli-
citer admittitur probatio tum directa tum indirecta; contra praesumptionem iuris et de iure, tantum indirecta, hoc est contra factum quod est praesumptionis fundamentum ». The assessment of p. hominis is left to the judge, who must ascertain the truth of the certain and determinate fact from which he derives his conviction. Proof against presumptions is called direct when the fact is not contested, but the consequences arising from that fact—that is, the presumption of law—are shown to be false. Proof is indirect, on the other hand, when the fact itself is shown to be false. It is extremely important to note that legal presumptions may reverse the burden of proof, which, theoretically, lies with the plaintiff; in fact, legal presumptions dispense the persons for whom they are established from any proof whatever; therefore, against an action brought on the basis of a legal presumption, the defendant may not merely raise an objection but must prove his case. Naturally, the presumption may also operate in favor of the defendant, who invokes it as an exception against the plaintiff’s claim. A clear example is found in canon 1015 § 2: « Celebrato matrimonio, si coniuges simul cohabitaverint, praesumitur consummatio, donec contrarium probetur. » Now, whoever requests a dispensation super rato et non consummato has the p. iuris against him, and the Defender of the Bond, defendant in these cases, may limit himself to invoking it as an objection.
The CIC establishes only two p. iuris et de iure: the inability to offer direct contrary proof is an exceptionally serious matter, and therefore the legal provision establishing a p. iuris et de iure must likewise be exceptional. Canon 1904 § 1 reads: « Res iudicata praesumptionem iuris et de iure habetur vera et iusta nec impugnari directe potest ». Thus, while maintaining the principle that res iudicata does not admit direct contrary proof, the legislator has granted an extraordinary challenge to a judgment that has become res judicata (restitutio in integrum), which may be invoked only if new documents contrary to the fact on which the judgment itself is based have been discovered; or if the documents submitted in the trial and which determined the judge’s decision are recognized as false; or if the judgment is the result of fraud by one of the parties; or if legis praescriptum evidenter neglectum fuerit. It is evident that in all these cases the judgment itself is not attacked directly, but rather the premises on which it rests; that is, the facts supporting the p. iuris et de iure of the truth of the judgment that has become res judicata must be shown to be false. The second p. iuris et de iure is found in canon 1971: « Matrimonium quod, utroque coniuge vivente, non fuerit accusatum, post mortem alterutriae vel utriusque coniugis ita praesumitur validum fuisse, ut contra hanc praesumptionem non admittitur probatio, nisi incidenter oriatur questio ».
Naturally, p. iuris tantum are far more numerous. In addition to the one cited above, established by canon 1015, there are others, both expressly stated and deducible from the wording of the law. Most important of all is the presumption established in canon 1086 § 1: « Internus animi consensus semper praesumitur conformis verbis vel signis in celebrando matrimonio adhibitis », which signifies that a marriage is presumed valid until proof of its nullity is furnished. Another important presumption is that of canon 1814: « Documenta publica sive ecclesiastica sive civilia genuina praesumuntur, donec contrarium evidentis argumentis evincatur ». Canon 9 § 2 further provides: « Lex non praesumitur personalis, sed territorialis, nisi aliud consitet ». And again: whoever is elected to an ecclesiastical office « Recepta confirmatione, electus obtinet plenum ius in officio, nisi aliud in iure caveatur » (canon 177); consequently, the person elected is presumed to have full right to the office until it can be shown that a specific legal provision prevents this full right. Likewise, in a criminal trial, once the investigative phase has been completed, proceedings may be brought only when the accused is presumed guilty (canon 1946).
As mentioned, p. hominis, on the other hand, are not and cannot be cited in the CIC; it is the judge who must draw from certain facts those necessary deductions that must guide him in judging. Naturally, rules are also established in the field of p. hominis, but not by the law, which is instead foreign to this matter, but by doctrine and jurisprudence. Indeed, it is possible, by studying many similar facts, to determine the consequences that derive from the facts themselves and to establish p. that are almost stable, or at least applicable, to a certain group of questions. If matrimonial cases are considered, it may be observed, for example, that in cases ex capite vis et metus the existence of metus is presumed from the aversion toward the other spouse shown by the spouse who has suffered coercion; a greater probability of the existence of metus is presumed if the metum patiens is female and young, and so forth; it is observed that in cases of simulation ob exclusum bonum prolis, the tenacious will manifested post-matrimonium gives rise to the p. that such a tenacious will also existed during the premarital period. These p., together with many others, have by now become established facts in matrimonial cases, to such an extent that they may be considered something more than the simple p. hominis deduced case by case by the judge.
In civil law too, p. are of the utmost importance, and Italian law contains a great many legal p.: a p. iuris et de iure is that established by art. 232, whereby a child conceived during marriage is to be considered the husband’s child: in this case, the p. is overcome not by demonstrating the falsity of the premise, but the material and physical impossibility of the premise itself. A p. iuris tantum is that of art. 1141: « Possession is presumed in the person who exercises de facto power, when it is not proved that he began to exercise it merely as detention »: in this case, therefore, contrary evidence is admissible.