PRESUMPTION. – The term *presumption* can be understood in several senses: in the order of feeling, it indicates an exaggerated confidence in one’s own qualities; it is thus a form of pride; in the order of the will, *presumption* is a movement that impels a person to undertake more than he can actually accomplish with the strength at his disposal or believes himself to possess. In the natural order, *presumption* is opposed to the virtue of magnanimity (q.v.), which has the task of moderating the tendency to embark upon difficult enterprises. In the supernatural order, *presumption* comes into direct opposition to the virtue of hope.
I. PRESUMPTION, A SIN OPPOSED TO THE VIRTUE OF HOPE
It can be defined as a rash confidence in obtaining eternal salvation without the means established by God. Grace and glory, goods of the supernatural order, are beyond the reach of man’s natural powers: whoever would seek to attain them by his own means would be in direct opposition to the virtue of hope, inasmuch as he practically 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. On the other hand, God normally bestows His supernatural gifts in conformity with His promises and attributes. To seek such goods by another path would signify a deviation from the object of hope and hence a sin against II. This is the case of the sinner who believes himself lost without sincere repentance of his sins, or of him who believes himself saved while persisting obstinately in his sin until the end. It is an exaggerated confidence in God, contrary to the Providence He has established. One would render absolute promises that are in fact conditional, or one would seek to emphasize the mercy of God to the detriment of His justice. Hence there are two forms of *presumption*, differing in cause and malice. The first places an illusory foundation beneath hope. The second respects the omnipotence of God but awaits supernatural aids without acting to merit them.II. HERETICAL, COMMON, OR SIMPLE PRESUMPTION
Theologians call *presumption* that places hope upon a foundation other than 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 founded upon a dogmatic error. The “Pelagian” form is based upon Pelagian naturalism, which exalts human freedom to the point of attributing to man alone his own sanctification. The “Lutheran” *presumption*, deriving from the doctrine of Luther, attributes individual sanctification and salvation solely to the merits of Christ, excluding all cooperation on the part of man. Calvinist predestinarianism, which admits absolute predestination, gives rise to “Calvinist” *presumption*. The Calvinist and Lutheran forms of *presumption* are more grave than the Pelagian, because they would attribute to God a power and a mercy at the expense of justice, thus violating the divine holiness itself.Theologians term *praeter spem* that form of *presumption* which, without destroying the virtue of hope, introduces into its practice some disorder and some rashness. It is right to hope from God for Paradise and the means to attain it, but it is rash and sinful *presumption* to hope for that degree of glory which He has reserved to one or another of His elect. God gives to all the graces He has promised, but to defer concern for one’s salvation by relying upon having time at the moment of death to repent and to expect from Him more than He has promised is to sin by *presumption*. An act of *presumption* is to abuse the confidence in divine forgiveness in order to sin more frequently, more gravely, and with greater freedom; to persevere longer in sin; to expose oneself without cause to temptation; to claim divine graces without the normal means of prayer and personal effort.
III. MALICE OF PRESUMPTION
Heretical *presumption*, that is, that which includes dogmatic error, is a sin in itself (*ex toto genere suo*) mortal, because it opposes faith, hope, and the fear of God and does great injury to divine justice.Common or simple *presumption* is by its nature (*ex genere suo*) a mortal sin, because in itself it likewise does grave injury to divine justice and causes great harm to man; yet it admits of variations between mortal and venial sin. This sin is less grave than that of despair (q.v.): for *presumption* is against divine justice, whereas despair destroys divine mercy; and according to our manner of thinking it is more proper to attribute to God the quality of being merciful than that of being just and avenger of sins (*Sum. Theol.*, II-II, q. 21, a. 2).
IV. PRESUMPTION IN SPIRITUAL LIFE
From the dogmatic error upon which heretical *presumption* is founded there derives a false conception of life and of the progress of the soul, by which man places himself outside the conditions of salvation and perfection.Even though less radical, common *presumption* likewise exercises an influence throughout the whole field of spiritual life. Whereas a reasonable and wise confidence in oneself strengthens the soul, stimulates its energies, and generates courage in enterprises, perseverance in effort, and boldness in facing and overcoming difficulties, *presumption* which presents itself as an excessive confidence in oneself produces only evils. He who has an exaggerated esteem for himself launches into enterprises disproportionate to his strength, judges it useless to take counsel and direction, diminishes in himself the fear of danger to the point of neglecting necessary precautions, particularly in temptations. If he is desirous of perfection, he believes himself already to possess virtues which in fact he does not, despising the ordinary ways of piety and the Christian life.
Every asceticism and every mysticism that are not founded upon humility are presumptuous and hence ineffective and harmful.
PRESUMPTION (Canon Law). – A logical argument by which, on the basis of the bond of causality uniting 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 known fact or facts.
One may ask 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 *Codex Iuris Canonici*, it seems certain that the answer must be that proof, and consequently *presumption*, belongs to procedural law: indeed, the treatise *De praesumptionibus* is found in Book IV, chapter 2 of Title X, *De probationibus*; and proof is considered in its various subspecies (among which is *presumption*) only insofar as it is made by the judge or evaluated by him. The Code of Civil Procedure of the State of the Vatican City (I, I, Title III: *On Proofs*) seems partially to echo the concept of canon law outlined above; it does not expressly include *presumption* among the means of proof, but it speaks of it in various places (cf. Section 3, cited title, art. 91 § 2 and art. 92 § 1: “A confession made outside of judgment to a third party constitutes a source of simple *presumption*,” where the term *presumption* is expressly used and in this case indicates a *praesumptio hominis*; as in § 1 there is contained a *praesumptio iuris tantum*). The question, therefore, may be said to be merely doctrinal and not practical with regard to canon and Vatican legislation, whereas it is not so with regard to Italian law: indeed, proof and hence *presumption* are included both in the Code of 1865 and in the present one, whereas in the Code of Civil Procedure it is a matter solely of the taking of proofs. In substance, Italian law distinguishes what constitutes proof from what is meant by proof in judgment: it thus attributes to proof and to *presumption* the character of institutions of substantive law.
Presumptions are distinguished into legal presumptions and presumptions of fact (presumptiones iuris and presumptiones hominis). Legal presumptions are further divided into presumptions *iuris tantum* and presumptions *iuris et de iure*. The difference between these three types is of the utmost importance; it suffices to consider can. 1826 of the CIC:
"Against a presumption of law alone, both direct and indirect proof are admitted; against a presumption *iuris et de iure*, only indirect proof is admitted, that is, against the fact which is the foundation of the presumption."
The assessment of presumptions of fact is left to the judge, who must ascertain the truth of a certain and determinate fact from which he derives his conviction.
A direct proof against presumptions is said to occur when the fact is not contested, but instead the consequences that arise from this fact—namely, the legal presumption—are demonstrated to be false. Indirect proof, on the other hand, occurs when the fact itself is demonstrated to be false.
It is of great importance to note how legal presumptions can invert the burden of proof, which, in theory, lies with the plaintiff; indeed, legal presumptions dispense from any proof those persons for whom they are established. Therefore, against an action brought on the basis of a legal presumption, the defendant cannot merely raise an exception but must prove. Naturally, the presumption can also favor the defendant, who may raise it as an exception against the plaintiff’s claim.
A clear example is found in can. 1015 § 2: "Once a marriage has been celebrated, if the spouses have lived together, the consummation is presumed until the contrary is proven." Now, whoever requests a dispensation *super rato et non consummato* is faced with the presumption *iuris*, and the Defender of the Bond, who is the defendant in such cases, may simply raise this presumption as an exception.
The CIC establishes only two presumptions *iuris et de iure*: the inability to provide direct contrary proof is a matter of exceptional gravity, and therefore the legal provision establishing a presumption *iuris et de iure* must be exceptional. Can. 1094 § 1 states:
"A res iudicata is held to be true and just by a presumption *iuris et de iure* and cannot be directly impugned."
Thus, while the principle that a res iudicata does not admit direct contrary proof remains firm, the legislator has granted an extraordinary means of impugning a judgment that has become res iudicata (restitutio in integrum), which may be invoked only if new documents are discovered that contradict the facts on which the judgment is based; or if the documents produced in court are recognized as false and were decisive for the judge’s decision; or if the judgment was the result of fraud by one party; or if the law’s prescription was evidently neglected. It is evident that in all these cases, the judgment itself is not directly attacked, but rather the presuppositions on which it is based; that is, the facts on which the presumption *iuris et de iure* of the truth of the res iudicata rests must be demonstrated to be false.
The second presumption *iuris et de iure* is found in can. 1071:
"A marriage that, while both spouses were alive, was not accused of invalidity is presumed to have been valid after the death of one or both spouses, in such a way that no proof is admitted against this presumption, unless a question arises incidentally."
Naturally, presumptions *iuris tantum* are far more numerous. In addition to the one cited above from can. 1015, there are others, both expressly stated and deducible from the wording of the law. Among the most important is the presumption established in can. 1086 § 1:
"The internal consent of the mind is always presumed to conform to the words or signs used in the celebration of marriage," which means that the marriage is presumed valid until proof of its nullity is given.
Another important presumption is that of can. 1814:
"Public documents, whether ecclesiastical or civil, are presumed genuine until the contrary is proven by evident arguments."
Can. 9 § 2 also states:
"A law is not presumed to be personal but territorial, unless the contrary is established."
Similarly, one who is elected to an ecclesiastical office:
"Upon receiving confirmation, the elected person obtains full right to the office, unless the law provides otherwise" (can. 177); therefore, the elected person is presumed to have full right to the office until it can be demonstrated that a particular legal provision prevents this full right.
Likewise, in criminal proceedings, once the inquisitorial phase is concluded, an accusation may proceed only when the accused is presumed guilty (can. 1946).
As noted, presumptions of fact (*praesumptiones hominis*) are not and cannot be cited in the CIC; it is the judge who must draw from certain facts the necessary inferences to guide his judgment. Naturally, even in the realm of presumptions of fact, norms are established, but not by the law, which is indeed extraneous to this matter, but by doctrine and jurisprudence. Indeed, by studying many similar cases, it is possible to determine the inferences that arise from such facts and to establish presumptions that are almost fixed, or at least applicable, to a certain group of issues.
If one considers matrimonial causes, for example, it can be observed that in causes arising from force and fear (*ex capite vis et metus*), the existence of fear (*metus*) is presumed from the aversion of the spouse who suffered coercion toward the other spouse; a greater probability of the existence of fear is presumed if the person suffering the fear (*metum patiens*) is female and of young age, and so on. It is observed that in cases of simulation *ob exclusum bonum prolis*, the tenacious will manifested after marriage gives rise to the presumption of the existence of such a tenacious will even in the premarital period. These presumptions and many others are now fixed data in matrimonial causes, to the point of being considered something more than mere presumptions of fact, deduced case by case by the judge.
Presumptions are also of great importance in civil law, and in Italian law there are countless legal presumptions. A presumption *iuris et de iure* is established by art. 232, according to which a child conceived during marriage is presumed to be the child of the husband: in this case, the presumption is overcome not by demonstrating the falsity of the presupposition but by demonstrating the physical impossibility of the presupposition itself. A presumption *iuris tantum* is that of art. 1141:
"The possession is presumed in the person who exercises factual control, when it is not proven that he began to exercise it merely as detention."
In this case, therefore, contrary proof is admitted.