The allocation of the burden of proof in mixed disputes in legal and non-legal contexts

In this paper the problems pertaining to the allocation of the burden of proof in mixed disputes in legal and non-legal contexts are addressed. First the traditional view on the allocation of the burden of proof based on Whately’s legal conception of ‘presumption’ is discussed. Whately’s proposal is not adequate for the solution of problems related to the allocation of the burden of proof in everyday mixed disputes where there is no presumption of status quo. Using the pragma-dialectical perspective it is explained how practical questions regarding the division of the burden of proof are solved in a legal context. It is shown that for argumentation theory, the combination of material and procedural rules for the allocation of the burden of proof offer an instrument for the allocation of the burden of proof in both legal and non-legal discussions.