Abstract
In this chapter, attention is focused on the different kinds of criticism that are typically addressed to normative theories, and more specifically, on those criticisms that could be relevant to the project of formulating some elements for a normative theory of democratic tax law.
“The value of a tax or a tax system is not to be judged by the dollars and cents raised by the compulsory contribution imposed on a people by a public authority. This view of taxes, solely as a means of revenue, has had wide currency. The merit of one tax program as against another, however, is to be measured in terms of all its human consequences”
Sidney Ratner, Taxation and Democracy
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References
I am not claiming that taxes are the core of politics (which is probably an overstatement), but that any argument on taxation is connected with the basic political auestions.
Cf. Schumpeter (1954a, 202).
Cf. Bodin (1977, 855), already referred in chapter 1, fn. 90. The metaphor seems to have been coined by Roman lawyers (at least this is what Vanoni claimed. Cf. Vanoni (1961, 313). It can be found also in Considerations on the French Revolution by Burke: “To mortgage the public revenue implies the sovereign dominion, in the fullest sense, over the public purse”. Also in The Federalist, XXX: “A complete power therefore to procure a regular and adequate supply of [money], as far as the resources of the community will permit may be regarded as an indispensable ingredient in very constitution”. Cf. Hamilton, Jay and Madison (1987, 212). As of late, it has been “recycled” by Epstein (1986,49): “[T]axes are to the State as food is to the body”
McCaffery (1996, 90) considers that it is the most important determinant of private behaviour. Graetz (1997, 23) points that more people fill in a tax form than vote. A ranking minority member of the House Ways and Means Committee, Barber Conable, once said that “There is no issue more central to the relationship between government and people that taxation”; quoted in Jensen (1991, 369). Cf. Musgrave (1959, 17).
This idea is further explored in §163 by means of considering that the obligation to pay taxes is a partial institutionalisation of duties of solidarity.
Cf. Kronman (1980), Gerstenberg (1997) who try to show how the process of materialisation of law makes it possible to talk about a commonality of underlying principles of public and private law.
Given the almost constitutional constraints on some of these institutions within the Economic and Monetary Union, we do not even face a choice, but we run the serious risk of lacking the means with which to pay for public needs.
Cf. §§149ff.
The question of autonomy seems to have been introduced by Myrbach-Rheinfeld. The main doctrinal impulse came from the Scuola de Pavia. In legal terins, it was endorsed by the German Tax Code. A comparative study of the question of finance law’s autonomy can be found in Sainz de Bujanda (1964) and Valdés Costa (1992, 36–60); and update with special reference to the Spanish case in Ramallo (1996). Cf. also Sainz de Bujanda (1962a), Rodríguez Bereijo (1976, 120, 127, 193). An alternative foundation of autonomy is attemoted in §180.
Livingston (1998a, 374) and Palao Taboada (1976, 377, 419). On what concerns the definition of taxes, see Nabais (1998, 223). Jarach (1969, 187).
As a matter of fact, the movement towards a formalist or pure conception of law is associated with tax scholars. Authors such as Gerber and Laband are at the root of such approach. Cf. Gerber (1971, 34) argues that “Public law borrows from private law the pure form, the legal construction. All the set of formal legal concepts that Private Law considers in their essential purity and simplicity are also needed in Public Law (...) even where such concepts have a different sense or a more complex form (due to the different substantive content of Public Law) this mixture is valid if we follow the same fundamental principles of interpretation in exactly the same way as it is done in Private Law”. See also Laband (1979, 4). He draws a clear distinction between legal truth and partisan interests. The dogmatician should only be at the exclusive service of legal science. Even an author like Hensel (in Hensel 1956, 4) claims that the criticism of the adequacy of tax norms does not correspond to tax law but to public finance. The criticisms addressed by Herman Heller to the extreme formalism characteristic of Kelsen’s pure theory of law point in the same direction. The Austrian legal theorist is seen as the culmination of a legal method shared by Gerber, Laband and Jellinek. In Heller (1985, 30- originally published in 1929) we read that “Legal formalism was exported. The works of Gerber, Laband and Jellinek were diffused abroad, and were fundamental in French and Italian dogmatics. Its culmination is found in the work of Hans Kelsen, for whom all states are a Rechtsstaat, because law is, independently of its values and reality, an autonomous form that can be filled with any content”. See also Heller (1995, 89, fn 37- originally published in 1921), where he sees Kelsen as a doctrinal heir of Paul Laband.
Livingston (1998b, 1791).
Habermas (1984, 88) on the bracketing of essential political issues from the public debate.
Cf. Vogel (1979, 21). The author compares this kind of deference to the one implicit in the doctrine of the “acte politique”. Kruse (1991, 151) refers to the great extent of self-restrain in tax matters.
Habermas (1996a, 189): “If the legal statute is understood as a general norm that acquires validity from the approval of the people’s representatives in a procedure characterised by discussion and publicity, then it unifies two moments: the power an inter-subjectively formed will and the reason inherent in the legitimating procedure”.
Cf. Neumark (1974, 71); “I am under the impression that this principle is no longer (so) essential as it was in the States of Europe by the end of the XVIIIth century or the beginning of the XIXth or for some developing countries nowadays. Its substantial (material) content is already included in the old and venerable principle of security (that I fully endorse), which I describe as a principle of fiscal transparency. Moreover, this principle has become something natural in a modern democracy; even fascist or communist dictatorships respect it formally. This is another reason for which I do not deal with it” (my translation)
In Western Europe, we can refer to the German, Italian, Greek, Portuguese and Spanish Constitutions.
Lozano Serrano (1990, 146).”La Constitución no sólo ha incidido en el contenido material de los institutos y las normas de carácter jurídico, sino también en los modos de pensar y actuar el derecho, propiciando así una mejor adecuación de estas tareas a los obietivos generales del mismo”.
Fiss (1986). This a recurrent argument against presumptively anti-normativist theories. Cf. Pound (1942, 125): “A jejune jurisprudence which has cast out the ideal element of law and all consideration of what the precepts of what-ought-to-be ought to be simply invites the bringing of that element and the consideration back in unconsciously by side doors, and conscious or unconscious blundering, and the sort of judicial process which the self-styled realist of the moment takes to be significant”.
See §§ 179–80.
See§40.
See §§ 163ff, especially §178.
See §§184–6.
See §§167–8
See §§170ff.
See §§408.
/ See §§184–6.
Rodríguez Bereijo (1976).
On the problems of social rights, Cf. Nino (1993b), Habermas (1996a, 1997), La Torre (1998b), Fabrè (1998), Gargarella (1998).
Cf. §§ 225–6.
Cf. the arguments made by Villar Palasí (1957, 31), a public lawyer who became a minister of the Franco Regime: “The injustice of the tax system can be compensated by the administrative intervention on the economy”. The author proceeds to praise a series of interventionist measures contained in the law of 24 November 1939, of the like of “control” of markets, fixation of prices by the State, determination of “political” prices or coercive transfers of resources decreed by the administration. (that is, takings under other name).
See §9.
See chapter 5, fn 5.
For a more general analysis, see e.g. Williams (1972) or Nino (1991a, chapter 2). To give only two examples, we could also consider “descriptive” and “metaethical” scepticism. The former moves from the factual plurality of moral doctrines across time and space to the denial of any objectivity to moral argumentation. If the sceptic rests his case exclusively on this ground, she is in a very weak position. Not only it is based on a conceptual confusion between positive and critical morality, but there is a need of some extra premise to justify the jump from the description of a state of affairs to a normative conclusion. The latter distinguishes two different levels of moral argumentation. At a first level, we exercise positive moral judgment about concrete questions (for example, we say that proportional taxation is unjust, or that a higher degree of redistribution will be fair). At a second one, we express metaphysical or philosophical opinions about the nature of positive moral judgments. Metaethical sceptics will see a point in playing the moral language game at the first level, and will show their scepticism considering the second. Richard Rorty is one of the outstanding sceptics in this sense. Dworkin (l 996b) offers a thorough set of arguments against these sceptic claims. He argues that the splitting argument does not wash, since what they see as metaethical claims are in themselves substantive moral claims. Moreover, he adds that as a consequence, this kind of scepticism cannot claim to be so ecumenical: its adoption has consequences over our exercise of practical judgment.
This short analysis is indebted to Foot (1995, l-4) and Tasioulas (1998). Both articles offer a clear outline of the contents, origins and consequences of the doctrine.
Habermas (1996c, 349): “In fact, modern moral scepticism is based on the thesis that normative statements cannot be true or false, and hence cannot be justified, because there is no such thing as moral objects or facts. On this account, a traditional conception of the world as the totality of objects or facts is connected with the correspondence notion of truth and a semantic conception of justification”.
Dworkin (1996b, 104) has recently offered a very good and short description of such position: “The idea of a direct impact between moral properties and human beings supposes that the universe houses, among its numerous particles of energy and matter, some special particles- morons- whose energy and momentum establish fields that at once constitute the morality or immorality, virtue or vice, of particular human acts and institutions and also interact in some way with human nervous systems so as to make people aware of the morality or immorality of the virtue or vice”.
Dworkin (1985, 137) defines hard facts as physical facts and facts about behaviour (including the thoughts and attitudes) of people.
Kelsen (1992, 16) is a relativistic, while Ross (1993, 11 17) is a subiectivist.
Kelsen (1992, 16).
Kelsen (1973, 5). He adds “If the history of human knowledge can teach us anything at all, it is the futility of attempting to discover by rational means an absolutely valid norm of just conduct (Kelsen 1973, 22) “And in fact I do not know and cannot say what is justice is, justice in the absolute, the beautiful dream of mankind. I must be content with a relative justice, and can only say what justice is for me” (Kelsen 1973, 22). “If a legal order is reckoned unjust by the standard of one moral system, it can be reckoned just by the standard of another” (Kelsen 1973, 91). “The claim that law is essentially moral means not that it has a particular content, but that it is a norm, and a social norm indeed, which posits as obligatory a specific form of human behaviour. In this relative sense, then, all law is moral, all law constitutes a -relative- moral value. But this means that the question of the relation between law and morality is a question, not about the content of the law, but about its form. It cannot be said, as is sometimes done, that law is not only a norm (or command) but also constitutes or incorporates values (such claim would make sense only on the presupposition of an absolute and divine value). For law constitutes a value precisely through the fact that it is a norm, it constitutes legal value, which is at the same time a -relative- moral value; which says no more, however, than that law is a norm (Kelsen 1973, 89) “Supposing we admit that at different times, among different peoples, classes, and even within the same people among different ranks, professions, very diverse and mutually contradictory moral systems obtain (...) In the view of the extraordinary diversity of what men have actually held good or bad, just or unjust, at different times and places, it is impossible to establish any element common to the contents of the various moral orders” (Kelcen 1973 88)
Ross (1993, 24).
Cf. Habermas (1996c, 352): “The discourse principle tries to resolve a predicament in which the members of any moral community find themselves when, in making the transition to a modem, pluralistic society, they face the dilemma that, while they still argue about moral judgments and beliefs with reasons, an encompassing value-consensus on basic moral norms has been shattered”.
Nagel (1997a, 119).
Nagel (1997a, 118).
Ota Weinberger has convincingly argued that all social sciences must take on board the perception of participants. Cf. Weinberger in MacCormick and Weinberger (1986, chapter 3). This is also a central insight of Hart’s legal theory.
Nagel (1997a, 117).
Habermas (1996c, 336–7): “We judge actions and intentions to be ‘good’ or ‘bad’, whereas our terms for virtues refer to personal qualities and agents. The claim that moral judgments admit of justification also betrays itself in these moral feelings and evaluations, for they differ from other feelings and evaluations in being tied to obligations that function as reasons. We do not regard those utterances as expressions of mere sentiments and preferences”.
Nagel (1997a, 117): “If we go on trying to make up our minds about what to do on the basis of the best reasons, we implicitly reject the hypothesis of an ultimately non-rational determination of what we do”.
Madry and Richeimer (1998. 211).
Nino (1985, 126) and Weinberger in MacCormick and Weinberger (1986, 158).
Atienza (1991, 22–6).
Pinocchio’s nose might provide a similar and more entertaining example.
After all, if we were presented with a correlation between solar eclipses and the business cycle, we could think that either facts are tangled up randomly or that the econometrician had an excellent ability to torture nature and make it confess.
Rawls (1993, 110).
Or she contradicts herself. Cf. Tasioulas (1998, 195): “If we are compelled to adopt a certain belief or viewpoint in our practical activity, then it makes no sense to subscribe to the claim that that belief or viewpoint is fallacious or delusive”.
Cf. Dworkin (1982), Dworkin (1986), Dworkin (1996b, 88): “Even Archimedeans [sceptics] need some place to stand, as their progenitor conceded. They must assume that some of what they think (at an absolute minimum, their beliefs about good reasoning) are not just their own or their culture’s invention but are true or valid -indeed ‘objectively’ so. Otherwise they could only present their views as ‘subjective’ displays in which we need take nothing but a biographical interest. Scepticism, in the sense of disbelief, must be built upon belief of some kind; it can’t be sceptical, as we might put it, all the way down”. In relation to the problem of scepticism in moral matters, see Klug (1992, 11). Nagel (1997a, 128): “The powerful consequence is this. Morality is a distinct, independent dimension of our experience, and it exercises its own sovereignty. We cannot argue ourselves free of it except by its own leave, except, as it were, by making our peace with it. We may well discover that what we now think about virtue or vice or duty or right is inconsistent with other things we also think, about cosmology or psychology or history. If so, we must try to re-establish harmony, but that is a process whose results must make moral sense as well as every other kind of sense. Even in the most extreme case, when we are offered grounds for scorching doubt, we still need moral judgment at some deep level to decide whether that doubt is justified and what its consequences for virtue and vice, duty and right, really are. No matter what we learn about the physical or mental world, including ourselves, it must remain an open question, and one that calls for a moral rather than any other kind of judgment, how we ought to respond. If morality is to be destroyed. it must preside over its nwn destnuctinn”
Alexy (1996).
Dworkin (1982, 175).
Ackerman (1983, 387), La Torre (1997b).
A brief disclaimer. The term communitarianism is a generic label applied to several authors who have addressed a number of variegated criticisms to liberal political theory. This makes the term a negative one, defined to a certain extent by reference to the target of criticism, namely the work of John Rawls and other liberals such as Ackerman, Dworkin, Nagel or Habermas. For our present purposes, the main representatives of communitarianism are Michael Sandel, Alisdair Maclntyre, Charles Taylor, David Miller and to a certain extent, Michael Walzer.
Wagner (1909), Neumark (1974), Blum and Kalven (1952).
Palao Taboada (1976, 420, fn 131), probably influenced by the argumentation of Viehweg, claims that there is a robust agreement among legal theorists concerning the impossibility of aiming at a rational determination of what justice requires. Cf. also Casado 011ero (1981).
Wagner (1909), Del Vecchio (1951). A recent claim in Davies (1986, 61): “[T]his preference by electorates [for progressive taxation] (...) is purely subjective”. Casado 011ero (1981, 559) stresses the relative character of justice in historical terms. Palao Taboada (1976, 420, fn 131) goes as far as claiming that there is “wide agreement” among legal theorists on the unfeasibility of offering a rational definition of what is just.
Maclntyre (1984, 10): “It is in general only within a community that individuals become capable of morality, are sustained in their morality and are constituted as moral agents by the way in which other people regard them and what is owed to and by them as well as by the way in which they regard themselves”.
MacIntyre (1981, 56).
Sandel, who seems to have popularised the term, refers in his last book not to Rawls but to some airport blockbusters of the 70’s as the authorised source representing the liberal spirit on the matter.
This is the case of John Stuart Mill. For a brilliant consideration of the distinction between education and self-education as two different stages in moral maturity in Mill, see Donner (1991).
Rawls (1993, 14): “In a democratic society, there is a tradition of democratic thought, the content of which is at least familiar and intelligible to the educated common sense of citizens generally. Society’s main institutions, and their accepted forms of interpretation, are seen as a fund of implicitly shared ideas and principles”
Kymlicka (1989, 254). Cf. also MacCormick (1997, 1057): “The telos of moral development is the fully responsible moral agent who takes responsibility for his or her judgments at all levels, and whose volitional commitment to some ideal rationally willed order, and seeking to realised the willed order in action, can fully grasp the concept of ‘wrong’ action, and therefore, the concept of right-asnot wrong-action. Only such a being can make full sense of auxiliary verbs as ‘ought’ or `should”‘.
See Weinberger in MacCormick and Weinberger (1986, 220) and Waldron (1995).
Nino (1991a, 114): “That function is overlooked by the communitarian movement, which, in its celebration of particularism, disregards the fact that basic moral principles are aimed at the convergent behaviour of different people and groups, which are usually in conflict because of their particularism”.
Nino (1989b, 85–86).
Nino (1991a, 103): “This practice, which Rawls calls that of ‘free public reason’ and Nagel calls `public justification’, is, of course, historically conditioned so that it has evolved through time and spread through different societies. (...)All this implies, of course, the possibility that the practice is not universal: we must accept that there may be some people or societies which do not follow the same practice of moral discourse; that is, that they follow a practice of moral reasoning and discourse which differs in relevant respects from ours. This usually provokes the question ‘What can we do to convince those people’ My answer is `Nothing’. If there are people who refuse to listen to our reasons- depending on what we understand by the word `reasons’- it is as if they covered their ears. We can induce them or compel them, but we cannot convince them”. Cf. also MacCormick (1978, 5).
Alexy (1994a, 143, fn 44). Dworkin (1996b, 117): “No sceptical argument can succeed, for anyone, unless it brings him sceptical conviction, and that means that none of us can accept such an argument unless we find its premises convincing even when we grasp their sceptical import. We must find these premises more plausible than what they require us to abandon (...) I mean that any reason we think we have for abandoning a conviction is itself just another conviction, and that we can do no better for any claim, including the most sophisticated sceptical argument or thesis, than to see whether, after the best thought we find appropriate, we think it so. If you can’t help believing something, steadily and wholeheartedly, you’d better believe it. Not, as I just said, because the fact of your belief argues for its won truth, but because you cannot think any argument a decisive refutation of a belief it does not even dent. In the beginning, and in the end, is the conviction”
Alexy (1994a, 142 fn 42). In similar terms, Rehg (1996, 140). Nino (1989a, 183) makes a connection between this claim and a substantively based conception of tolerance.
Alexy (1989), Alexy (1994a, 144–6).
Alexy (1996, 217): “Whoever never in his life makes an assertion and never puts forward an argument does not take part in the most general form of life of human beings”.
Alexy (1994a, 148).
Rehg (1996).
Nino (1989a, chapter III), Nino (1989b).
Any attempt at classifying legal theories in such broad terms is rather vain. However, by traditional legal positivism I refer to variants of legal positivism which do not take into account the basic insights of the institutional theory of law. In nominal terms, I am thinking to positivists writing before Hart. The classic book on the insights of institutional theory of law is, of course, MacCormick and Weinberger (1986). In substantive terms, the key question is that traditional positivists fail to recognise that law is a normative affair. This implies that legal reasoning belongs and is somehow connected to general practical reasoning.
But cf. Weinberger in MacCormick and Weinberger (1986, 153): “The traditional positivist teaching reduces the problem of justice to a matter of the conformity of conduct to rules as enacted or at any rate to the formally equal decision of cases according to its rules in force. Such conformity of conduct to a rule (or the validity of the relevant judgment subsuming the conduct under the rule) can be objectively tested, without any evaluation or justification of the rule in question, which is simply taken for granted as a given feature of society. Relativisation in respect to the positive system of norms brings about objectivisation of the problem of justice, but at the price of excluding from consideration the very being and substance of what lies at the core of an analvsis nf istice”
See Hall and Rabushka (1995). For readers unconvinced by arguments imported from the other side of the Atlantic, Cf. Moreno Seijas (1995) who, on the basis of an attack on the political definition of what are public goods, tries to do two things: first, to bring back to life the principle of taxation according to benefit, and second, to extend the earmarking of tax revenue for the funding of concrete public goods and services.
By the way, a claim that shares the same philosophy of history as resort to the blind hand of the market on the side of liberists.
MacCormick (1999, 23) addresses to Kelsen the criticism that the purity of his theory is purchased at the price of rendering the whole theory too austere. The Scottish philosopher argues that “Law is not only an object of study for legal science, but it is in some form an element in the lives and actions of citizens and officials”. A similar argument was put forward before by Nino (1974) and Nino (1979).
Cf. Nino (1994b, 28).
See next section.
Posner (1998, 1642): “If moral relativism means that the criteria for pronouncing a moral claim valid are local, that is, are relative to the moral code of the particular culture, so that we cannot another culture ‘immoral’ unless we add ‘by our lights’, then I am a moral relativist”.
Posner (1998, 1644).
Posner (1998 1697): “Judges are expected to give reasons for what they do, and the reasons cannot always be found neatly packaged in the authoritative sources of law. From the reasons a judge gives across a range of cases can be stitched, if the judge is consistent, a`theory’ that he might be called upon to defend. It would not follow that he would be helped by reading or thinking about moral theory (...) Moral theory (...) has a long history of false starts and inconclusive debate (...) Considerations drawn from moral theory and designed to illuminate moral issues are only a subset of the normative considerations that are potentially relevant to adjudication. Moral issues can be elided, or recast as issues of interpretation, institutional competence, practical politics, the separation of powers, or stare decisis- or treated as compelling reason for judicial abstention”.
This derives from paragraphs like the following, Posner (1998, 1644–5), that associate moral right or wrong with positive law at the relevant time: “My belief that moral theory lacks the necessary resources for resolving moral controversies enables me to reconcile my qualified acceptance of moral subjectivism with my qualified rejection of moral scepticism. A person who murders an infant is acting immorally in our society (..) It was right to try the Nazi leaders rather than to shoot them out of hand in a paroxysm of disgust. But it was politically right. It created a trustworthy public record of what the Nazis had done. And it exhibited “rule of law” virtues to the German people that made it less likely that Germany would again embrace totalitarianism. But it was not right because a trial could produce proof that the Nazis really were immoralists; they were, but according to our lights, not theirs”. For Dworkin’s criticism see Dworkin (1997) and Dwnrkin (2000)
It is interesting to read Hayek’s Road to Serfdom and Polanyi’s The Great Transformation side by side. The two books were published the same year (1944) and constitute alternative explanations of the state of affairs that led to Second World War by two authors from the same cultural background (Vienna), whose ideas had clashed before.
Cf. Hayek (1994, chapters 5, 6 and 7). The whole book is that argument.
This is already said in Road to Serfdom, Hayek (1994, 121): “There is no social agreement about which ideals of justice should be promoted; the only circulating idea is improving equality, which at most points towards taking from the rich as much as possible. The only social standards of distributive justice which can elicit some sort of agreement are those related to the competitive regime we have known”. A clear restatement in Hayek (1973).
It must be said that the first Hayek was less radical in this point than the late Hayek. Cf. Hayek (1994, 133, fn 1): “some minimum of food, shelter and clothing sufficient to preserve health and capacity to work”, if extended universally, could be provided without endangering the general scheme of liberties and freedoms.
Hayek (1976, 44): “[W]e can still maintain that the further development of rules of just conduct is not a matter of arbitrary will but of inner necessity, and that solutions to open problems of justice are discovered, but not arbitrarily decreed (...) We may still be bound by justice to develop the system in a particular way, and be able to demonstrate that we must alter particular rules in a certain way to e11m1nate ininstice”
Cf. La Torre (1997a, 326ff). He makes the same claim against Hayek that Nino (1994b) makes against legal positivism: “It should be stressed that behind this evolutionism there emerges a sort of descriptivist fallacy, that is, one of reducing the ‘normative’ to the `descriptive’, of rules to descriptions of states of affairs.
This is recurrent in Hayek (1973). Cf., for example, pp. 72–74
Hayek (1976, 25)
I follow Alexy’s terminology in Alexy (1994a, 133).
See Becker (1976, 14): “All human behaviour can be viewed as involving participants who maximise their utility from a stable set of preferences and accumulate an optimal amount of other inputs in a variety of markets”.
This exacerbated and self-standard proceduralisation is not to be confused with procedural theories of justice as justice as fairness (Rawls) or discourse ethics (Habermas).
Cf. Buchanan and Tullock (1962, passim), Olson (1965, 15–6): “No large organisation can support itself without providing some sanction, or some attraction distinct from the public good itself, that will lead individuals to bear the burden of maintaining the organisation itself’; Buchanan (1975, 66): “In a large social group “many persons can be predicted to default and the whole agreement becomes void unless the conditions of individual choice are somehow fixed”.
The classic statement is Puviani (1903, first chapter, section 2) who talks about the spinta contributiva or willingness to pay taxes as the “moral force which moves us to pay taxes”. He argues that such willingness overcomes the contrary one to evade taxes when, overall, the individual expects more benefits from paying than from evading.
Cullis and Jones (1998, 195).
This is constant since the premier on tax evasion, Cf. Allingham and Sandmo (1972) and Yitzhaki (1974).
For example, Bordignon and Zanardi (1997) claim that the high rate of tax fraud in Italy is related to the tax structure which gives many opportunities to evade taxes. The reader might be so generous as to allow me not to be surprised by the fact that they also blame evasion on the progressiveness of the tax system.
See Puviani (1903). Chapter Two constitutes a resume of the detailed arguments contained in the rest of the book.
l0 The latter kind of exploitation is seen at work in taxes like the corporate tax, in which high nominal tax rates come hand in hand with generous tax breaks. Such benefits are prey of pork barrel politics, and can be used to create competitive advantages and even get rid of economic rivals.
A paradigmatic example is Rose and Karran (1987).
Slemrod (1986). Cf. Weiss and Hobson (1995) for an application of such doctrine
See Buchanan and Congleton (1998).
For a general criticism on the behavioural assumptions, see Jolls, Sunstein and Thaler (1998). They put forward an alternative conception of human beings as displaying bounded rationality, bounded will-power and bounded self-interest. It seems to me that under such assumptions, normative theory is a viable enterprise.
Sen (1978).
Downs (1957) introduced the rational voter hypothesis. The individual would consider how much better off she will be if her vote leads to the preferred result. This implies considering the overall impact of his vote, which tends to be quite low.
Lewin (1991, chapter II) or Sanders (1996). Evans (1999) goes further and claims that in order to explain the defeat of the Conservative Party in the 1996 British general elections one needs to consider political factors (for example, party perceptions) and political preferences. The empirical evidence he refers seems to show that the latter were much more relevant than even the economic competence of Major’s government in objective (not subjective) terms.
Slemrod (1986).
Webley and Hessing (1992, 517), in a review of the literature on the psychology of taxation, argue that theories have focused on theoretical models of taxpayers, neglecting the differences between national traditions (tax culture) and legal systems.
Cf. Confalonieri and Newton (1995, 144), which shows that people realise that having more public goods implies more taxes, and explaining that they are doubtful that within the existing institutional structures an increase in taxation leads to an improvement on the public services’ side. Cf. also Hansen (1998, 562b): “Citizens’ preferences over the public budget are remarkably well structured. Most people have no difficulty determining their views. Most have no difficulty recognising tradeoffs. And most have no difficulty maintaining consistency. The preferences of ordinary Americans are strikingly coherent”
See §§53–9.
Cf. §53 in fine.
Slemrod and Bakija (1996, 60) find that the US tax system tends to be reputed to be more regressive than what it actually is. This kind of cognitive mistake points in the opposite direction than Puviani’s illusion.
For example, Edward J McCaffery offers at least two examples. First, a tax incentive to contribute to charities results in donations well over and above the direct economic benefit derived from the tax break (1994a, 1912). Moreover, the tax shelter mania which hit the American population in the 1970s led many taxpayers to economic transactions which made no sense in economic terms, and thus, to accumulate losses well beyond the eventual tax liability (1994a, 1917).
Suspicion is always corrosive, and dietrologists could always claim that VAT was introduced in order to foster weightier economic interests (for example, it constitutes a major guarantee of a levelled playing field within single markets arrangements) or that it constitutes a poor alternative to fairer taxes like the Income Tax. It seems to me that the record is more mixed. See, for example, Lynch (1997). At any rate, this only proves that there could be systemic requirements working for tax transparency, and not only for tax opacity.
See §§183–9.
For these reasons, tax institutions such as the Value Added Tax, that have in-built mechanisms reducing the chances of evaders getting away with it, constitute major contributions to tax technology. Similar devices are tax breaks in the Income Tax that allow for cross-checking of fiscal data
As already pointed, the chance that an individual decision to evade might undermine the spontaneous motivation to comply by all taxpayers is a remote one. Only evidence of tax fraud committed by the high public officials in charge of monitoring tax compliance could erode dramatically the propensity to pay taxes on the part of citizens.
“The existence of reasons for action, and their weight, depends on , g p general conformity, or the likelihood of it” Raz (1994, 333, and also at 336). Finnis (1980, 261): “The authority of law depends (...) on its justice or at least its ability to secure justice”.
See §§152ff.
See §§152ff.
See §§183ff.
A general argument on the opaqueness of the legal provisions concerning the Welfare state in Sajo (1996, 1193).
Di Pietro (1995, 11).
Postema (1996, 82 and 95) describes the claim in the following terms: “membership in law’s limited domain is determined by criteria which are defined exclusively in terms of non-evaluative matters of social fact (about their sources), such that the existence and content of member norms can be determined entirely without appeal to moral or evaluative argument”.
Quite to the contrary. As is further argued in this same section, the normative claim of the strong autonomy thesis is that it is precisely because of the need of critical morality to check, among other things, positive law, that we should differentiate the two social orders. Moreover, resort to moral argumentation is necessary in the kind of discourses that are situated either before law as a positive norm (that is, in explicit legislative activities) or at the margins of the hard core of settled law (like judicial reasoning dealing with penumbra cases). Though some versions of positivism tend to be associated with moral scepticism (we have already made some reference to the fact that Kelsen seemed to deny any inter-subjective standard of moral), this is not the case with the version articulated in the strong autonomy thesis, that is endorsed by authors like Hart, Honoré, Raz or MacCormick (the latter only in his early writings). On the categorical force of moral reasons, cf. Raz (1998, 8).
Hart (1958, 599).
See §13.
The claim was hammered in by analytic jurisprudence, and especially by Herbert L. A Hart
Hart (1958, 614). The argument is elegantiv reconstructed in Raz (1979 and 1986)
Its more powerful argumentation is due to Neil MacCormick. In his classic monograph on Hart he wrote that “when evil is done in the name of the law, the greatest evil is that, whatever is done in the name of the law is also inevitably done in the name of a public morality”, something which could only be prevented if “every order of positive law or positive morality [is always subject] to the critical judgment of an enlightened morality”. Cf. MacCormick (1981, 161, 162). This argument was latter on presented in a more articulated form in the widely read article A moralistic case for a non-moralistic law: “The practical argument is that states, governments, wielders of power in general, will in practice be able to manipulate the idea of ‘law’. If we insist that nothing is really ‘law’ unless it passes a substantive moral test as well as a`formal sources’ test, we risk enhancing the moral aura which states and governments can assume, even if our true hope is to cut out from the real of ‘law’ evil and unjustifiable acts of legislation and of government. The argument of last resort here is an argument for the final sovereignty of conscience, and how best to preserve it (..)[A] powerful case, and perhaps a sufficiently powerful case, can be made out for the positivist position on purely practical and moral grounds. For my own part, I do not believe that any sufficient case can be made out which does not at least include these moral and practical grounds, these arguments for conceptually buttressing the sovereignty of moral conscience”. Cf. MacCormick (1985, 10–1).
Hart (1963).
Hart (1958, 599) attributes such risks to any non-positive conceptualisation of law: “[I]t could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law (...) it could not follow from the mere fact that a rule was desirable that it was a rule of law”.
Cf. Raz (1985, 306): “An income tax statute is meant to decide what if the fair contribution of public funds to be borne out of income. To establish the content of the statute all one need to do is to establish that the enactment took place and what it says. To do this one needs little more than knowledge of English (including technical English) and of the events which took place in Parliament on a few occasions. One need not come to any view one fair contribution to public funds”.
MacCormick in MacCormick and Weinberger (1986, 140): “The issue of justice in taxation is an issue of critical morality, not one of legal exposition”.
Cf. Alexy (1994a, 40).
Take for example the argument of one of the outstanding advocates of the Fascist regime, Attilio Garino Canina. In his book on the problems of Fascist Public Finance, he says that tax reforms approved by the Fascists aimed at reintroducing an ethical element at the core of tax law, at the same time that they rendered the system production-friendly. Cf. Canina (1930, 16). This amounts to a claim to correctness on the side of a wicked legal system, which I hope will be agreed was not redeemed at all. However, it enough to consider Fascist law as a legal system (in the specific case, as a tax system).
MacCormick (1992, 120–1); “Every system of positive law necessarily contains non-positive norms. These are the norms of sound reasoning”.
Alexy (1989, 284–5).
See, for example, MacCormick (1981, 161), MacCormick in MacCormick and Weinberger (1986, 139).
Alexy (1989, 284–6).
See, for example, Alexy (1998, 70).
MacCormick (1978, 238): “Does this involve drawing a sharp distinction between principles of law and moral and political principles? Yes and no. It involves asserting that there is really a difference between principles which are and those which are not legal, subject to an intermediate terra incognita of principles struggling for legal recognition (...) It does not involve the assertion that a principle which is a legal principle thereby stops being a moral or political principle, on which again we are indebted to Dworkin for vigorous statement of neglected truth”. Habermas (1988, 230). Sousa Brito (1996, 5) “The kinds of reasoning that are used in constitutional law to obtain the rules are no less important than the rules themselves, since most of the rules are not expressed in a formal way, they are implicit in the sources and obtained through reasoning, they are premises or conclusions of constitutional reasoning”. From this statement, he derives that constitutional comparative analysis must be developed with the help of the yardstick provided by public reason, or what is the same, ethical reason with legal constrains. Public reason will be a specific variant of general practical reasoning, the kind of reasoning which operates accepting the framework provided by the positive legal system.
Cf. Fuller (1942, 89); “such pressing problems as the proper attitude of judges towards statutes and previous decisions are left without answer”. See also MacCormick and Weinberger (1986, 19ff).
Raz (1998, 4).
Raz (1998, 4).
Postema (1996, 99–102).
s8 Postema (1996. 110).
Pound (1942, 125). Cf. this chanter. fn 19.
See §9.
This is explained by Ronald Dworkin with the help of the concept of “paradigms” of law. See Dworkin (1986, 88): “Every community has paradigms of law, propositions that in practice cannot be challenged without suggesting either corruption or ignorance” and Dworkin (1986, 72): “For the paradigms will be treated as concrete examples any plausible interpretation must fit, and argument against an interpretation will take the form, whenever this is possible, of showing that it fails to include or account for a paradigm case”.
The most famous interpretation of these constrains is to be found in Dworkin’s “dimension of fit” or integrity. See Dworkin (1986, chapter 6).
Hart (1958, 609).
Günther (1993). The term was coined by Holmes. See also the critical remarks by Ackerman (1984, 73).
Alexy (1997, 105). Cf. also Fiss (1984, 216): “The authority of the judiciary to do what it is doing (...) does not turn on the success of its intervention, but rather on the special integrity of its processes, the willingness of the judiciary to engage into dialogue over the meaning of public values and to remain independent from the parties and the body politic” and Dworkin (1997, 375, fn 6): “We have no choice but to ask [judges] to confront issues that, from time to time, are philosophical. The alternative is not avoiding moral theory, but keeping its use dark”.
See Alexy (1994a).
Alexy (1994a, 45).
Alexy (1994a, 45ff) and Weinberger in MacCormick and Weinberger (1986, 220).
On these questions, see Nino (1996b).
This is part of the plot in Marlowe’s The Jew of Malta. Cf. Act One, Scene Two.
Chapters 6, 7 and 8.
Rawls (1999a, 13): “[T]he problem of justice arises whenever it is the reasonably foreseeable consequence of the satisfaction of two or more claims of two or more persons that those claims, if given title, will interfere and conflict with one another. Hence the problem of the justice of actions, as a theoretical question, is essentially the problem of formulating reasonable principles for determining to which interests of a set of competing interests of two or more persons it is right to give preference”. D’Agostino (1996, 24): “All that I require for the dispute to be political is that existing empirical techniques of the usual kind are incompetent to settle the matter without residual controversy”.
It might not be a coincidence that D’ Agostino (1996, 24) confronts the question of tax distribution to the sown of seeds to contrast political and technical questions.
Forexample, see Habermas (1996c, 352), D’Agostino (1996, 25).
Habermas (1996a, 130): “The emergence of legitimacy from legality admittedly appears as a paradox only on the premise that the legal system must be imagined as a circular process that recursively feeds back into and legitimates itself. This is already contradicted by the evidence that democratic institutions of freedom disintegrate without the initiatives of a population accustomed to freedom. Their spontaneity cannot be compelled simply through law; it is regenerated from traditions and preserved in the associations of a liberal political culture”.
Of course, this is a controversial statement. All sorts of nationalism (including liberal nationalists such as Yael Tamir or Neil D. MacCormick) ground politics in a sort of prepolitical commitment. For example, MacCormick (1999, 184) argues that political stability is provided by “some perception of common and mutual loyalty such that a momentary minority can reasonably accept to go along with a majority choice (...) This suggests that there must be some ground of belonging other than the mere existence of a legally constituted constitution that confers power to vote and rules about the establishment and working of a legislative assembly” [my italics]. He had previously argued, in page 167, that “Where there is a sense of local or national community, this is of value to the end of sustaining the kind of mutual solidarity that trust in democratic institutions presupposes”. The main focus of loyalty is said to be the nation. See also p. 186: “A nation is constituted by a sense in its members of important (even if internally diverse) cultural community with each other, based in a shared past, a heritage of common ways and tradition, including at least some of a family of items such as language, literature, legend and mythology, music, educational usages, legal tradition and religious traditions (..) This gives them a possibility of mutual loyalty and a common patriotism of the kind that seems essential to any form of long-run viable democracy”. MacCormick offers a general liberal framework within which some of the risks implicit in such characterisation are tamed, but it seems to me that this does not imply that he manages to get rid of the pre-political definition of politics. It seems to me that Rawls’ reference to civic friendship and mutual trust as the basis of political stability (see for example Rawls, 1999a, 104) or Habermas’ constitutional patriotism (cf. Habermas, 1996a, 455) -notwithstanding some pre-political shadows, cf. (Markell, 2000)- are more convincing. Of course, there is an implicit democratic optimism at play -not so dissimilar from Godwin (1976, 490)-, but that cannot be avoided. Cf. §110.
Rawls (1993, 55).
It seems that Hume was the first author to consider them in a systematic way. Cf. Hume (1978, book III, part II. For a contemporary treatment, see Hart (1961, 189–95) Rawls (1971. §, 22 pp.12630)
This paraphrases MacCormick (1997 1054).
o See §§1–3.
Cortina (1985, 194 and 196).
Rawls (1971, 30): “It should be noted that deontological theories are defined as non-teleological ones, not as views that characterise the rightness of institutions and acts independently from their consequences. All ethical doctrines worth our attention take consequences into account in judging rightness. One which did not would simply be irrational, crazy”.
Dworkin (1978), Alexy (1992, 129ff), Alexy (2000).
Cf. §400, where the argument of the Spanish Constitutional Court in judgment STC 110/84, par. 3 is explored. A similar reasoning way of reasoning can be found in Eldridge vs. Matthews, 424 US 319 (1976).
Think about major tax reform under way in several Western countries. The importance of this role of legal theory is stressed by Habermas (1997, 133). For radical blueprints of tax reform, see also Hall and Rabushka (1995).
Rawls (1993), Benhabib (1996), Michelman (1997, 150). The idea is that we have to elucidate the already implicit principles and logic of historic and contemporary constitutional democratic thought and practice.
Nino (1996a, 222).
MacCormick in MacCormick and Weinberger (1986, chapter 2)
Ackerman (1991).
Nino (1990) and Nino (1996a, 33ff).
Cf. Chomsky (1996).
Cf Rawls (1999b, 11 ff) for the concept of a realistic utopia
Cf. Cohen (1997b).
Cohen (1997, 93).
Alexy (1994a, 148), Alexy (1996). See §§312ff.
Dunn (1996, 84). Cf. also Dunn (1996, 13).
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Menéndez, A.J. (2001). Do We Need a Normative Theory of Democratic Tax Law?. In: Justifying Taxes. Law and Philosophy Library, vol 51. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9825-5_2
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