Abstract
This book aims to offer its reader some of the elements required for a general theory of democratic tax law. The objective is to revisit some of the issues that have occupied tax law dogmatics (among them, special attention is paid to the general principles of taxation), by the hand of a critical citizen always ready to ask questions about the justification of her obligations, especially on what concerns her paramount burden, i.e., to pay certain amounts of money1. This is a sort of reversal of the basicintuition of legal realism. Instead of attempting to describe law as it looks to the eyes of the bad man who cares of nothing but prudential reasons, we will try to keep company with the reasonable citizen 2. This forces us to face the basic problem of the justification of the tax system. Answering this question requires us to move from the single to the plural. The argument goes that the main source of legitimacy is to be found in the fact that tax norms have been produced in a democratic way (in fashionable terms, by we the people), or to put it in slightly different words, that positive tax law is democratic and that makes it legitimate. This requires explaining in what sense and for which reasons only democracy fills the justificatory gap (or at the very least minimises it), due to the conflict between our will to autonomy and the need of partially heteronomously produced action-norms (i.e. law) in order to achieve cherished but complex social goals, like providing for public expenditure, that it is what taxation is mainly about.
If false, let [these] arguments [be] rejected: But no one ought to entertain a prejudice against them, merely because they are out of the common road.
David Hume, Of Commerce
Anything that involves human beings and money cannot be dull
Louis Eisenstein, The Ideologies of taxation
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References
Cf. Dworkin (1986, 93, 94, 400): “Our discussion about law by and large assumes, I suggest, that the most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld, no matter how useful that would be to ends in view, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified (…) Conceptions of law refine the initial, uncontroversial interpretation I just suggested, provides our concept of law. Each conception furnishes connected answers to three questions posed by the concept. First, is the supposed link between law and coercion justified at all? Is there any point to requiring public force to be used only in ways conforming to rights and responsibilities that ‘flow from’ past political decisions? Second, if there is a point, what is it? Third, what reading of ‘flow from’- what notion of consistency with past decisions- best serves it?(…) Our concept of law ties law to the present justification of coercive force and so ties law to adjudication: law is a matter of rights tenable in court”. For the relationship with democracy, see Nino (1991a, 232): “For the moment, I shall take up another intriguing feature of government: its authoritative character. What I want to analyse is the apparent capacity of some kinds of government to generate original reasons for action, that is, reasons not established by substantive moral principles. This is very important for grounding a moral obligation to obey government which is different from the mere moral obligation to do things- such as not killing or paying debts- which a just government must prescribe. But even a just government may sometimes prescribe something which, in the absence of that prescription, we would not have a moral obligation to do. It may do so because it commits a moral mistake or, as we saw, because there is moral indeterminacy. How can we have a moral obligation to obey the law in these cases?”. See also Habermas (1996a, 196): “Unlike philosophy, legal theory cannot afford to ignore those aspects that result from the internal connection between law and political power- primarily the question of the legal licensing of the government’s application of legitimate force”.
Holmes (1997, 992): “You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbours is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can”.
That means that the liberal principles of taxation which are enumerated in chapter 8 constitute a yardstick against which to determine that the tax system is sufficiently legitimate. Legitimacy is not understood as an ideal, but as a test which determines whether certain requirements are met. The main conclusion to be derived from the characterisation of a legal system as legitimate is that its addressees have a good reason to see its law as their law, and consequently, they have a (defeasible) obligation to obey the law. This explains why attention is paid in chapter 7 to constitutional adjudication on tax matters. Judicial review of legislation implies elaborating principles of taxation quite similar to those resorted to for the legitimacy test.
Habermas (1996c, 353–4).
Rawls (1980), Rawls (1993), Rawls (1997).
Habermas (1990), Habermas (1993).
Nagel (1997a).
Alexy (1989), Alexy (1994a, 131ff).
Nino (1989b).
Habermas (1996c, 353–4), Nino (1989b, 68–9), Nino (1991a, 105).
Habermas (1996a, 15) points that this basic insight was developed by Peirce and by pragmatics.
This constitutes an adaptation of Rawls’s definition of political constructivism. See Rawls (1993, 93): “[T]he principles of political justice (content) may be represented as the outcome of a procedure of construction (structure)”.
Habermas (1996a, 4–6) on the distinction between practical and communicative reason.
Cf. Nino (1989b).
Cf. Pavlakos (1999). The author argues that the pragmatic assumptions which we make every time that we enter into practical discourses are to be understood not only as mere procedural rules referring to the realm of speech, but as substantive moral norms which directly apply to human action. This is so because rational practical discourse departs from some substantive normative premises which reflect a certain conception of persons. See page 9: “[T]here is a minimum of normative content to be found at the starting point of any discourse, since discursive impartiality and objectiveness are in any case connected with a certain conception of the person: the discourse can only be impartial if it treats all participants as free and equal persons”. This is the only way to avoid a certain degree of circularity in discursive ethics, derived from the fact that demand for lightness presupposes the discourse (in which we anchor criteria of correctness) while the discourse operates according to rules which presuppose the validity of the claim for lightness. It is interesting to notice that Estlund (1998) argues that political liberalism cannot be procedural all the way down. It needs to have a substantive grounding which is related to the concept of the reasonable person. He had argued that this does not undermine the procedural character of the theory. Cf. Estlund (1993).
Cf. Nino (1991a, 113)”A decision is taken by someone, and this implies tracing some boundaries of the self who took the decision in order to determine, among other things, whether he was competent to take it, considering who was affected by it. This assumes, on the one hand, some continuity of the self, who must extend further than the subject of the choice, and, on the other, some separateness between different centres of decision. Of course it is very difficult to identify the criteria in ordinary moral discourse for the identity and independence of selves; but even without attempting to articulate those criteria, at least we know that selves are not sliced into thin units which correspond to single choices, nor are all selves submerged in an undifferentiated mass”.
Rawls (1993,19).
Rawls (1993,49).
Thomas Nagel has developed this through the powerful metaphor of impartiality as the nowhere. Cf., for example, Nagel (1991, 5): “Justification in political theory must address itself to people twice: first, as occupants of the impersonal standpoint and second as occupants of the particular roles within an impersonally acceptable system”.
Rawls (1993, 56).
La Torre (1998a) explores the relationships between theories of legal argumentation and the conceptualisation of law.
Alexy (1989), Aarnio, Alexy and Peczenik (1981), Alexy (1994a).
MacCormick (1978), MacCormick (1994a).
Finnis(1980).
Raz (1979), Raz (1986), Raz (1994).
Nino (1985), Nino (1989a), Nino (1994a).
Habermas (1988), Habermas (1996a).
It is summarily characterised in Nino (1980), MacCormick in MacCormick and Weinbeger (1986, 27–30), MacCormick (1994a) and Postema (1996, 82).
MacCormick (1994b, ix), La Torre (1994). Post-positivism is closely related to the institutional theory of law, as in the canonical statement of MacCormick and Weinberger (1986). However, the institutional theory of law is a wider legal theory than what I refer as post-positivism. The latter tries to focus on the relationship between law and morality, and does not aim at dealing with the “ontology” of law (a basic concern of the former). Of course, the distinction is far from being a neat one and of course the two questions are unavoidably intertwined. Footnotes are witness of the constant reference to the works of MacCormick and Weinberger.
Alexy (1989), Raz (1984, 131): “No system is a system of law unless it includes a claim of legitimacy, of moral authority. That means that it claims that legal requirements are morally binding, that is, that legal obligations are real (moral) obligations arising out of the law” (added italics); Habermas (1996a, 106): “[A]utonomous morality and the enacted law that depends on justification stand in a complementary relationship”. Cf. also Habermas (1996a, 111–8, especially at 117–8); Nino (1994a), MacCormick (1994a).
Nino (1991, 248): “[M]oral discussion is not only a method of moral knowledge but also a practical procedure for solving conflicts by means of shared access to that knowledge; it is a social practice oriented to achieving unanimous consensus on certain principles which provide the ultimate justification for actions and institutions. Often this consensus among those who may be affected by a course of action is achieved; when that happens, the practice of moral discussion facilitates moral knowledge but also fulfils its latent social function of avoiding conflicts and facilitating co-operation between individuals with competing interests”.
Habermas (1996a, 37): “[Under modern conditions] unfettered communicative action can neither unload nor seriously bear the burden of social integration”.
Nino (1991a, 248) and Nino (1994b). Another way of characterising these situations is the following. They are those instances in which it is more important to adopt a roughly fair solution within a certain time-limit than the perspective of adopting a completely correct solution at some indefinite point in the future. In the absence of common action rules, we run the risk of a failure to achieve conflict-solving and social coordination.
It is necessary to notice that the disagreement between Alexy and Habermas concerning whether legal reasoning is a special case of general practical discourse depends on the contested character of the concept of general practical discourse. The latter claims that the combination of ethical, prudential and moral arguments can only take place in law. Cf. Alexy (1989), Alexy (1999), Habermas (1996a, 38).
Honoré (1992, 3,12) says that obligations that presuppose social co-operation for the achievement of a social goal cannot be spelled without having resort to law. Koller (1992, 155): “Although it is certainly true that every legal right should be compatible with morality, that does not mean that every legal right is founded on morality”. See also Habermas (1996a, 118, 246–7): “A principled morality whose effectiveness was based solely on socialisation processes and individual conscience would remain restricted to a narrow radius of action. Through a legal system with which it remains internally coupled, however, morality can spread to all spheres of action, including those systematically independent spheres of media-steered interactions that unburden actors of all moral expectations other than of a general obedience to law (…) Under conditions of high complexity, moral contents can spread throughout a society along the channels of legal regulation”.
Habermas (1996a, chapter 3).
Finnis (1980, 268–70, especially at 268): “[L]aw brings definition, specificity, clarity and thus predictability into human interactions, by way of a system of rules and institutions so interrelated that rules define, constitute and regulate the institutions, while institutions create and administer the rules, and settle questions about their existence, scope, applicability, and operation”.
Habermas (1996a, chapter 3).
Habermas (1996a, 116): “Moral demands that can be fulfilled only through anonymous networks and organisations first find clear addressees only within a system of rules that can be reflexively applied to itself and Habermas (1996c, 348) explains that de-transcendentalising ethics leads to the fact that we do not have a motivation equivalent to the one provided by salvation. “When we know what is morally right to do, we know that there is no good (epistemic) reason to act otherwise. But that does not prevent other motives from prevailing”.
Garzón Valdés (1986), Habermas (1996a). Cf. Also §§ 167–9.
This reformulates the major insights of Habermas (1996a, 113–118), taking into account Raz (1986), Honoré (1992) and Postema (1996).
Habermas (1996a, chapter 3), MacCormick (1997, 1068).
Habermas (1996a, chapter 3), Finnis (1980), Nino (1991a, 248).
Habermas (1996a, chapter 3).
Coercion is to be seen as a technique for offering additional incentives to comply, to the extent that its main goal is not to tackle the problem posed by individuals who want to enjoy the benefits of social cooperation without sharing the burdens (the so-called free-riders) but the just mentioned issues of weakness of will (technically known as akrasia) and lack of insurance that collective behaviour will conform to the pattern established by the law (the state of hopelessness). Further reflections on this, from the point of view of the conception of law, see chapter 2, §§77–79 and chapter 4, §§193ff. Raz (1994, 328): “By addressing the self-interest of those who fail to be properly moved by moral considerations, the law reassures the morally conscientious. It assures him that he will not be taken advantage of, will not be exploited by the unscrupulous” Raz (1994, 103) The law is said to play an occasional role as the enforcer of moral duties (for example, it enforces such duties on people who refuse to comply with them).
Habermas (1996a), Garzón Valdés (1986).
Hart (1982, 253): Legal reasons are presented as requirements which should guide the subject’s action and which are to “preclude or cut off any independent deliberation by the hearer of the merits pro and con of doing the act”. Cf. also Raz (1985, 299,304): “The fact that an authority requires performance of an action is a reason for its performance, which is not to be added to all other relevant reasons when assessing what to do, but should replace some of them (…) A decision is serviceable only if it can be identified by means other than the considerations the weight and outcome it was meant to settle. [The added value of the authoritative decision is only available] if we can establish its existence and content in ways which do not depend on raising the very same issues which the authority is there to settle”. The positivist claim is described by Postema (1996, 82) in the following terms: “reasons in law’s limited domain operate in practical reasoning as pre-emptive reasons for action; that is, reasons which preclude acting for certain other reasons (falling outside the domain)”.
Postema (1996, 89).
Notice that any serious of natural law may accept this second claim. Cf. Finnis (1980, 290): “The tradition of ‘natural law’ theorising is not characterised by any particular answer to the questions: ‘Is every ‘settled’ legal rule and legal solution settled by appeal exclusively to ‘positive’ sources such as a statute, precedent and custom? Or is the ‘correctness’ of some judicial decisions determinable only by reference to some ‘moral’ (‘extra-legal’) norm? And are the boundaries between the settled and the unsettled law, or between the correct, eligible, and the incorrect judicial decision determinable by reference only to positive sources or legal rules? The tradition of natural law theorising is not concerned to minimise the range and determinacy of positive law or to the general sufficiency of positive sources as solvent of legal problems”. Raz (1987, 81): “Authoritative reasons cannot be considered just as ordinary reasons with (prima facie) force to be added to the balance of reasons when considering what is to be done”
Hart (1961, 124), MacCormick in MacCormick and Weinberger (1986, 203) and MacCormick (1994b, ix). The former focuses on general rules vis a vis commands; the latter on rules vis a vis principles.
Alexy (1989) and Alexy (1999): “What is authoritatively fixed and what fits into it (…) [LJegal argumentation is bound to statutes and precedents and has to observe the system of law elaborated by legal dogmatics”.
Reference to chapter 2, section 2.
Alexy (1989); Alexy (1994a, 40): “The relevant question is that in the praxis of any system of dominion there is an implicit claim to correctness, which must be redeemed to anybody. A normative system which does not raise a claim to correctness explicitly or implicitly is not a legal system”. Cf. also Habermas (1988, 243): “Legality can produce legitimacy only to the extent that the legal order reflexively responds to the need for justification that originates from the positivisation of law and responds in such a manner that legal discourses are institutionalised in ways made pervious to moral argumentation” and Habermas (1996a, 106): “In virtue of the legitimacy components of legal validity, positive law has a reference to morality inscribed within it”. MacCormick (1992, 112): “Judges, if anyone, take the law as it claims that it should be taken. They, more than anyone, acknowledge the law at its own estimation. To understand legal statements we should interpret them as meant by those who take them and accept them at face value, those who acknowledge the law in the way it claims a right to be acknowledged. The decisive argument concerning the meaning of statements of legal duties is that the law claims for itself moral force. No system is a system of law unless it includes a claim of legitimacy, of moral authority. That means that it claims that legal requirements are morally binding, that is that legal obligations are real (moral) obligations arising out of the law”. Also Raz (1985, 300–1) who considers that the claim to correctness might also be an intrinsic character of law.
Alexy (1994a), MacCormick (1992), Nino (1994a).
Alexy (1994a).
Alexy (1994a).
Alexy (1989, 16).
See §§264.
Nino (1994b).
Nino (1991a, 248): “Moral discussion is not only a method of moral knowledge but also a practical procedure for solving conflicts by means of shared access to that knowledge; it is a social practice oriented to achieving unanimous consent on certain principles which provide the ultimate justification for actions and institutions”. The limited conceptualisation of moral argumentation by Habermas makes him stress the practical orientation of law vis à vis morality. Cf. Habermas (1996a, 107): “morality and law differ prima facie inasmuch as post-traditional morality represents only a form of cultural knowledge, whereas law has, in addition to this, a binding character at the institutional level. Law is not only a symbolic system, but an action system as well”
Kelsen (1992, 7): “It characterises itself as a ‘pure theory of law’ because it aims at cognition focused on the law alone, and because it aims to eliminate from this cognition everything not belonging to the object of cognition, precisely specified a the law. That is, the Pure Theory aims to free legal science of all foreign elements”. Later on, his characterisation of norms as hypothetical judgments and not as commands is based on the same reasons. Hart (1994, 240); “My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law, though a clear understanding of these is, I think, an important preliminary to any useful criticism of law”.
For the German Constitutional Court, cf. references by Alexy (1994a). For the Spanish Constitutional Court, cf. STC 224/92, of 14 December, that claims that the right to effective judicial protection implies a right to have our case decided by a judgment decided according to reason: “a judgment grounded on the Law, that is, which one could properly qualify as sufficiently argued, by no means arbitrary, and for which reasons are provided, thus excluding caprice or naked will”
Nino (1974).
Cf. Hart (1958, 609, 614) on the discretion of judges in the area of penumbra. Cf., for a detailed analysis, chapter 2.
Dworkin (1986, 90): “Legal philosophers are in the same situation as philosophers of justice and the philosophers of courtesy we imagined. They cannot produce useful semantic theories of law. They cannot expose the common criteria or ground rules lawyers follow for pinning legal labels onto facts, for there are no such rules. General theories of law, like general theories of courtesy and justice, must be abstract because they aim to interpret the main point and structure of legal practice, not some particular department of it. But for all their abstraction, they are constructive interpretations: they try to show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. So no firm line divides jurisprudence from adjudication or any other aspect of legal practice. Legal philosophers debate about the general part, the interpretative foundation of any legal argument must have. We may turn that coin over. Any practical legal argument, no matter how detailed and limited, assumes the kind of abstract foundation jurisprudence offers, and when rival foundations compete, a legal argument assumes one and rejects others. So any judge’s opinion is itself a piece of legal philosophy, even when the philosophy is hidden and the visible argument is dominated by citation and lists of facts. Jurisprudence is the general part of adjudication, silent prologue to any decision at law”.
Dworkin (1986, 102): “[U]seful theories of law are not semantic theories of this kind (…) but are instead interpretative of a particular stage of a historically developing practice”. Dworkin (1987a, 13): “I said that orthodox theories go wrong in this way because they fail to realise that propositions of law make interpretive claims, and that any useful account of the truthful conditions of such propositions must therefore be normative rather than simply descriptive”. Dworkin (1984, 148): “Theories of law cannot sensibly be understood a (…) neutral accounts of social practice”.
Alexy (1989, 14): “Should we conclude from this that in the last analysis it is after all the non-intersubjectively testable value-judgments of the decision-maker that are the decisive factor, value-judgments which can perhaps be explained in sociological or psychological terms but cannot be justified any further? This is certainly not a desirable conclusion as far as concerns the legitimacy of judicial decision-making and the scientific character of legal dogmatics in its concern with normative questions”. Cf. also MacCormick (1978, 262) and MacCormick in MacCormick and Weinberger (1986, 203).
This can be explained with the help of different metaphors. We can say that there is an opposition between the factual and the normative (reflecting the positive character of law and its search for normative legitimacy). Law moves between facts and norms (Habermas). Or we can claim that there is a gap between its effective heteronomy and its aspiration to autonomy (the first results from its authoritative and institutional characters; the last is inscribed in its own claim to be a complement of morality) (this is an image dear both to Nino and MacCormick).
See §85.
See §§86–8.
Cf. §§89–93.
See §§94–5.
Cf. Alexy (1999, 375, 383): “Legal reasoning remains deeply connected with what can be called the free, discursive or ideal side of law (…) Hence the law is not only open to moral criticism from the outside. The critical dimension is replaced right into the law itself.
E.g. Ackerman (1997, 308).
Rawls (1971)
Raz (1986, 63–66) combines a descriptive and normative approach in order to define the concept of authority.
Nino (1991a, 9): “[In this chapter we undertake] a rational reconstruction of the notion of human rights. There is a process of mutual adjustment between conceptual elucidation and the construction of a theory in the framework of which the concept operates. The process begins with a provisional characterisation of the notion in question, taking into account features which are assumed a priori to be theoretically relevant. This allows us to articulate a substantive evaluative theory of the phenomena identified through the conceptual scheme. The articulation of the theory makes it possible, in turn, to reformulate more precisely the concepts involved. This includes reference to features whose relevance may not have been apparent at the beginning of the process, and excludes reference to others which appear insignificant in the light of the theory”. Thoroughness is not risk-free.
Cf. Webber and Wildavsky (1986) or Adams (1993).
See Polanyi (1977). The second introduction by the author is especially enlightening in this respect.
Liberal revolutions aimed at transforming not only political institutions but also political language. See e.g. Garcia de Enterria (1994, 34–42). This is clear in tax matters. Revolutionary programs aimed at changing institutional structures and the jargon of public finance itself (mainly, to put it in line with the new political arrangements. For example, reference to “tax” -a term loaded with authoritarian overtones- was to be substituted by the word “contribution”, with a certain democratic flavour. Change was slow and complex on what regards the institutional structure, and moreover, the new way of talking about taxes did not take root.
Nino (1989a, 15) refers to this as the phenomenon of persuasive definitions. Màiz (1998) reminds us that political terms are selected not only on the basis of conventional past use, but also in order to shape the institutional debate on the basis of the overtones and prejudices carried over by words.
This pragmatic basis of political issues is explored by Dewey in The Public at its Problems. Cf. especially Dewey (1984, 252).
Habermas (1996a, 139).
Rawls (1971, 268–9): “That political rule is founded solely on men’s prosperity to self-interest and injustice is a superficial view. For, even among just men, once goods are indivisible over large numbers of individuals, their actions decided upon in isolation from one another will not lead to the general good. Some collective arrangement is necessary and everyone wants assurance that it will be adhered to if he is willingly to do his part. In a large community the degree of mutual confidence in one another’s integrity that renders enforcement superfluous is not to be expected. In a well-ordered society the required sanctions are no doubt mild and they may never be applied. Still, the existence of such devices is a normal condition of human life even in this case”. Cf. Habermas (1989a, 145).
This is the idea that sustains the justification of the state (and the obligation to obey the law) in theories of the “common good” a la Hobbes. We would have an obligation to obey, even a wicked legal system, because such legal system is to be preferred to anarchy. Put in such terms, the argument seems sound. However, it could be argued that it is not. What is termed as anarchy by “state of nature” theorists can be seen complex patterns of non-institutionalised co-operation (anthropology has made us wiser and more sensitive to non-institutionalised forms of social organisation; we might also remember that the denial of the character of political communities to non-Western peoples, was not fully unrelated to the justification of the right of conquest and the takings of indigenous property). See Arneil (1996). In such a case, we could say that in normal cases, we do not face the option between the state of nature and some political order, but between two political orders (and one based in spontaneous co-operation, however deficient, might be preferred to be a wicked institutionalised system). Anarchy, as defined by Hobbes, corresponds more to the state of affairs following the social implosion of corrupted legal systems, like the one that took place in Albania in the spring and summer 1996.
Habermas (1996a, 150): “Politics cannot coincide as a whole with the practice of those who talk to one another in order to act in a politically autonomous manner. The exercise of political autonomy implies the discursive formation of a common will, not the implementation of the laws issuing therefrom. The concept of the political in its full sense also includes the use of administrative power within the political system, as well as the competition for access to that system”. Cf. also Christiano (1996).
See the judgments of the Spanish Constitutional Court STC 4/81, dissenting opinion of judge Diez-Picazo and STC 1/82. par. 1.
See Honoré (1987), Waldron (1988).
Samuelson (1954, 387).
Cf. Alexy (1992b, 167): “A good is collective for a class of individuals if it is conceptually, actually or legally impossible to break up the good into parts and assign shares to individuals (…) Collective goods are non-distributive goods”.
The image was already coined by Jean Bodin. Cf. Bodin (1977, 855). For readers confronting different editions, the relevant paragraph is to be found in book V, section VI, chapter II. The role of the state in the redistribution of income and resources and in the regulation of the economy are very connected. In fact, it might be possible to argue that there is an inverse relationship between the intensity with which each of them is resorted to by modern states.
Schumpeter (1954b, 17ff) claimed that there is a necessary connection between the market organisation of the economy, the state as the political form and taxation as the interface between the two. See p. 19: “The individual now runs his economy for himself, and anything that is not in some individual’s interests as a rule remains, both in principle and in fact, denuded of all economic means-unless, as is the case of the church, it can place itself on a separate economic basis. This is why fiscal demands are the first sign of life of the modern state. This is why ‘tax’ has so much to so with ‘state’ that the expression ‘tax state’ might almost be considered a pleonasm”
This idea of guaranteeing it with the revenue yielded by future taxation makes of public debt a different form of taxation.
All OECD countries obtain revenue from the exploitation of natural resources. Historically, the US derived a good deal of its revenue in the XlXth century from the sale of vacant lands, making difficult at some points to determine whether it was a tax state (at least for what concerned the federal state). More recently, we can notice that countries like Norway and Chile obtain sizeable resources from oil or cooper exploitation. This are less controversial cases, as the revenue from taxation clearly exceed those derived from this natural resources.
Within market economies, public ownership tends not to be based on fiscal or revenue purposes. If ownership is clearly related to the goal of obtaining revenue, then we can doubt whether that is a tax state. German states at the turn of the century derived large parts of their revenues from railways; they probably did not fit into the pattern of the tax state. The same is true of small states that have peculiar sources of revenue, like Macao (gambling) or some minor states in Oceania, that hire their vacant telephone lines or sell their rights to Internet dominions.
See Albert and Hannel (1991). They keep a web site on the project, which includes articles and lectures at http://www.zmag.org/parecon/aboutparecon.htrn. The complete text of his book Looking Forward, a popularising version of the referred work, can be found at http://www.zmag.org/parecon/lookingfoi-ward/toc.htm
In fact, it is necessary to insist on the need of justification, if only to avoid giving any power structure the “priceless gift of invisibility”. Cf. Ackerman (1980, 19).
Cf. §§225.
The famous article by Coase (1937) reflects the troubled condition of corporations within classic liberal economics.
Both issues boil down to the same problem, though they reflect the different standpoints of the individual taxpayer and the ensemble of them acting as a political community.
See Seligman (1927) and Einaudi (1928).
Most bilateral treaties tend to be inspired in the OECD Model Convention of 1977, amended in 1992. Such model convention deals with income taxes and recurrent taxes on net wealth. Mention should be made of the Draft US Model Income Tax Treaty, prepared by the American Treasury.
See Frenkel, Razin and Sadka (1992), Vogel (1997).
Cf., among others, Picciotto (1992), Tanzi and Parthasarathi (1993).
This requires spelling out the implications to be derived from the existence of a plurality of institutions, the practical need of reducing them to only a handful and the convenience of preferring territorial criteria to such effect.
It is a long time since the idea that only nationals and all nationals were to pay taxes. This is reflected in the tax liability of permanent residents and those related to the community through economic links, and the general tendency not to tax nationals that are abroad and have no economic link with their state.
This was already hinted at by Griziotti (1929, 166).
The classical arguments against recognising tax judgments can be found in the English cases Government of India vs. Taylor [1955] AC 491 and Buchanan vs McVey [1955] AC 156. A recent restatement in Aps v Frandsen [1999] 1 WLR 2269. See also Mann (1954) and Johnson, Nirenstein and Wells (1980) .The principle is not without force even within federations. See Local Enforcement of Foreign Tax Laws (1985). A moderate indirect revision in Smart (1986) and Chapman (1999). Openly against, Lowenfield (1996, 117). He argues that the phenomenon of taxation is universal, all states do collect them. The basic forms of taxation are accepted almost everywhere. Some Western European countries are parties to conventions aimed at the avoidance of double taxation. In the 1987 Restatements, American courts are not required to recognise the tax judgments, but there is indication that no US law or international treaty would be violation in case that recognition was granted (see also Bullen v HM Government 553 So 2d B44 Florida District Appeal 1989).
This seems to be the direction in which things are evolving. In its report on Harmful Tax Competition, the OECD concludes that “countries be encouraged to review the current rules applying to enforcement of tax claims of other countries and that the Community pursues its work on this area with a view to drafting tax provisions that could be included in tax conventions for that purpose. See OECD (1998, 69, recommendation 14).
Radaelli (1998).
See, among others, Weizsaecker and Jesinghaus (1992).
Taylor (1995).
Lewinsohn-Zamir(1998, 384).
The term was subject to considerable reflection in a famous exchange of letters between Benedetto Croce and Luigi Einaudi. See Croce and Einaudi (1957). A recent analysis with a brief historical sketch and bibliography can be found in Faucci (1998).
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© 2001 Springer Science+Business Media Dordrecht
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Menéndez, A.J. (2001). The Project. In: Justifying Taxes. Law and Philosophy Library, vol 51. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9825-5_1
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