LESSON 4.

THE BURDEN OF PROOF, PRESUMPTIONS, AND REFUTATION

CONTENT

A. The Burden of Proof

The burden of proof (“onus probandi” in Latin) is the obligation to provide sufficient supporting evidence for
claims that you make.

Who has the Burden of Proof?

In a debate, the affirmative team always has the burden of proof. The team can uphold its view by
proving that:

a. there is a need for a change in the status quo (the current state of affairs, the present system) relative
to the proposition;

b. that the affirmative side has a plan for change and a proposal for implementation; and

c. that there are precise advantages and benefits to such a plan and proposal.

Burden of Proof Fallacy

The fallacy of shifting the burden of proof occurs when someone/affirmative side making a claim does
not respect their obligation to provide the needed evidence for it, but instead attempts to shift the burden
to their opponent/negative side.

Example
Fred: “Santa Claus is not a real person, only children believe that he is.”
Nick: “I believe he is real. Can you prove that he isn’t?”
Fred: “Do I really have to prove it to you?”
In a case like this, the burden of proof is seen to lie with Nick: his assertion of Santa Claus being real is
against common knowledge and should be justified first.

How to counter the burden of proof fallacy?

The following are several ways that you can do to respond to someone’s attempt to evade their
burden of proof:

• Point out that they have failed to fulfill their burden of proof. When doing this, you can
explain what burden of proof they have and why they have it, based on the claims that they have
made.

• Explain why they are the ones with the burden of proof. This is especially relevant in cases
where they attempt to shift their burden of proof to someone else, for example by asking
someone to disprove their claim, when they are the ones who should be proving it.

• Ask them to fulfill their burden of proof or retract their claim. When doing this, you can also
set conditions, such as that you would not continue the discussion until they have fulfilled their
burden of proof, while also explaining why it is important that they do so.

• Call out the attempted evasion of the burden of proof. This can involve pointing out the
specific way in which the person in question is evading their burden of proof, especially if
they’re doing it by using other fallacious patterns of reasoning.
 • Provide counter-proof. In some cases, it can be preferable to prove or disprove something
yourself, rather than focus on someone else’s inability to fulfill their burden of proof, for
example if the discussion won’t go anywhere otherwise. However, note that a failure to provide
counterproof on your part does not necessarily constitute evidence that can be used in order to
support their stance, especially if their claims are phrased in a way that makes them inherently
difficult or impossible to disprove.

• Focus on your own point. In some cases, it can be preferable to ignore the other person’s point,
given their evasion of their burden of proof, and to instead focus on presenting your own point.

• Move on with the discussion. In some cases, it can be beneficial to simply drop a certain point
and move on with the discussion. This might be the case, for example, when it’s clear that the
current line of discussion isn’t going anywhere given the evasion of the burden of proof, but you
believe that other parts of the discussion may be productive.

• Leave the discussion. In some cases, the best solution might be to simply leave a discussion
entirely. This might be the case, for example, when it’s clear that the other person isn’t going to
support any of their claims, and that consequently the discussion has no value for you.

B. The Presumptions
In debate, presumption is a predisposition favoring a given side in a dispute. It describes the
psychological predisposition of a listener or decision maker.
Presumption may be viewed from two perspectives:
• Judicial presumption always favors the status quo or keeping things the way they are currently.
Small changes can be made but the existing structure is not going to be different. In debates that
happen from the judicial perspective, the affirmative side that has the burden of proof must show
that the benefit of change outweighs the status quo.

• The policy form of presumption is used when change is necessary to the status quo. Example
would be replacing an employee. The status quo of keeping the worker is impossible and the debate
is now focused on who should be the replacement. A debate from a policy perspective is about
which of the new approaches is the best to adopt.
C. The Burden of Refutation
The affirmative side and the negative side have a burden of refutation — they have the obligation to refute,
or respond to, opposing arguments. Burden of refutation referred to as the burden of “clash” rests on the
advocate whose case is weakened by an argument advanced by an opponent. The advocate must refute that
argument or suffer damage to the case. Similarly, in debate, the affirmative must refute the negative’s
argument or face a serious loss.