


Hardcover
Published: 31st July 2001
ISBN: 9780792370529
Number Of Pages: 366
Justifying Taxes offers readers some of the elements of a democratic tax law, considered within its political and philosophical context in order to determine the extent of legitimate tax obligations. The objective is to revisit some of the issues in the dogmatics of tax law from the viewpoint of a critical citizen, always ready to ask questions about the justification underlying her obligations, and especially about her paramount burden, viz., the payment of certain amounts of money. Within this purview, special attention is paid to the general principles of taxation.
The argument is complemented by a detailed reconstruction of constitutional reasoning in tax matters, close attention being paid to the jurisprudence of the Spanish Tribunal Constitucional.
Readership: Legal scholars, political scientists and philosophers. Especially recommended to graduate and undergraduate students of Tax Law, Constitutional Law, Jurisprudence, Philosophy of Law and Political Theory.
Table of Contents | p. vii |
Acknowledgments | p. xvii |
The Project | p. 1 |
A Normative Theory of Democratic Tax Law | p. 1 |
Ethical Constructivism | p. 3 |
Discursive or Deliberative Democracy | p. 5 |
Post-positivism | p. 6 |
Conclusion: It's Legal Theory! | p. 14 |
Some Preliminary Questions | p. 15 |
A Working definition of taxes by reference to their institutional background | p. 15 |
Limits to Normative Justification | p. 21 |
Terminological Questions | p. 26 |
Plan of the Book | p. 27 |
Do We Need a Normative Theory of Democratic Tax Law? | p. 29 |
Introduction | p. 30 |
Objections to the Relevance or Importance of the Thesis | p. 32 |
Is the thesis relevant? | p. 32 |
Is the thesis redundant? | p. 34 |
Is it possible to consider tax law in an autonomous way? | p. 37 |
Scepticism About the Normative Project. The Challenge from Emotivism, Communitarianism and Rational Choice | p. 40 |
Moral emotivism | p. 41 |
Communitarianism as a form of Scepticism | p. 47 |
Hobbesian practical reason | p. 57 |
The Strong Autonomy Thesis and the Non-Law Objection | p. 67 |
Conceptual and normative reasons for keeping law and morality strictly separate | p. 67 |
Can a sound conception of law separate it from morality? | p. 69 |
Is it acceptable in normative terms to separate law from morality? | p. 72 |
The Potentiality and the Limits of a Normative Theory of Democratic Tax Law | p. 75 |
The Circumstances of Justice | p. 76 |
The Practical Character of the Theory | p. 78 |
Democratic Tensions | p. 82 |
The cumulative production of law | p. 83 |
The basis of hope | p. 83 |
Some Notes on the History of Taxation | p. 85 |
Introduction | p. 85 |
Before the Tax State | p. 87 |
Greece and Rome | p. 89 |
The Low Middle Ages and Feudalism | p. 90 |
The Rise of the Tax State | p. 91 |
The Liberal Tax State: Ad Rem Taxes | p. 93 |
The French Experience | p. 96 |
Liberists have the upper hand | p. 97 |
The Material Tax State: Personal Taxes | p. 101 |
The Tax Crisis: A Matter of Trust | p. 106 |
The Facts: the shrinking tax bases | p. 106 |
Theories of the Tax Crisis | p. 109 |
The tax crisis as a legitimacy crisis | p. 111 |
Some provisional conclusions: once again on the need for a normative theory of democratic tax law | p. 113 |
Towards a Procedural Paradigm of Tax Law? | p. 114 |
Justifying the General Obligation to Pay Taxes (1): the Structure of the Obligation | p. 117 |
Introduction | p. 117 |
The Peculiar Structure of the General Obligation to Pay Taxes | p. 120 |
Taxes as the institutionalisation of the obligation to share the burdens derived from the existence of the political community | p. 120 |
The Tax Subsystem | p. 133 |
Why the obligation to pay taxes is opaque towards the background duties it institutionalises | p. 135 |
Tax law as public and multilateral | p. 138 |
Moving Coercion from Core to Periphery | p. 140 |
Against prescriptivism | p. 141 |
Coercion as ensuring the factual conditions under which normative reasons to act apply | p. 144 |
Taking coercion seriously | p. 145 |
Some Implications | p. 146 |
Justifying the General Obligation to Pay Taxes (2): The Tasks Assigned to the Tax System | p. 149 |
Introduction | p. 149 |
To Redistribute or Not to Redistribute. Liberist vs. Liberal Ideas | p. 151 |
The Market in Search of a Justification | p. 154 |
The Liberist Strategy | p. 154 |
A too narrow set of things to be justified | p. 160 |
Tax Standards of Justification: What Generality? Whose Equality? Which Legal Security? | p. 166 |
The liberist understanding | p. 167 |
Counter-arguments | p. 169 |
A Positive Argument for Redistribution | p. 173 |
Reasons internal to the tax system to include some progressive taxes in the tax mix | p. 173 |
The general concept of tax as insurance premium | p. 175 |
Insurance against full deprivation and the legitimacy of politics | p. 177 |
Brute bad luck: genetic lottery and serious handicaps | p. 180 |
Insurance against force as the determining factor in social relationships; the initial allocation of goods and the rules of transfer in market systems | p. 183 |
Some Very Brief Remarks on the Management and Steering of the Economy | p. 185 |
Justifying the General Obligation to Pay Taxes (3): An Argument for the Legitimacy of the Obligation to Obey the Law | p. 189 |
Introduction | p. 190 |
Discourses of Justification in Tax Literature | p. 190 |
Legitimacy through participation: Knut Wicksell's approximate unanimity model | p. 191 |
Legitimacy through content: The causal doctrine | p. 193 |
Legitimacy through guaranteed implementation: Distinguishing the creation and the application of taxes | p. 195 |
The General Obligation to Obey the Law | p. 197 |
A Moral, not a Legal Obligation | p. 198 |
A Basic Assistant to Practical Reason | p. 199 |
A general but defeasible obligation | p. 200 |
Is there really a difference between the question of the obligation to obey the law and the issue of legitimate authority? | p. 205 |
For and Against the General Obligation to Obey the Law | p. 206 |
Philosophical Anarchism: Morality and the Subject | p. 207 |
Avoiding the problem: Communitarian theories of the Obligation to obey the law | p. 214 |
A Positive Argument | p. 216 |
Two Preliminary Questions | p. 217 |
The positive grounds | p. 223 |
Conclusion: A Complex Theory of the Legitimacy of Law as the Basis of the Obligation to Obey the Law | p. 243 |
Reconstructing Constitutional Reasoning on Tax Matters. The Spanish Tribunal Constitucional | p. 245 |
Introduction | p. 246 |
The Spanish Transition to Democracy and the Materialisation of Taxes | p. 246 |
Spain's troubled modernity and the Ad Rem tax system | p. 246 |
The coming of democracy. Tax reform as a symbolic measure | p. 249 |
The 1978 Constitution | p. 250 |
The Constitutional Court at work: tax norms | p. 251 |
Legitimacy Through Participation | p. 254 |
The rationale for the principle of legality of taxation | p. 254 |
Statute vs. statutory instruments | p. 256 |
Statute vs. the derivative power to tax of local councils | p. 257 |
Statute vs. decree-laws | p. 258 |
The division of labour between ordinary tax statutes and the Budget Act | p. 260 |
A Flexible understanding of the principle of legality | p. 267 |
Legitimacy Through Substantive Correctness | p. 268 |
The general understanding of the principle of equality in tax matters | p. 268 |
Assessing the objective tax base | p. 270 |
From monetary standards to subjective standards of ability to pay | p. 279 |
Limits to the retroactivity of tax laws | p. 282 |
Legitimacy Through Guaranteed Implementation | p. 288 |
The General Approach of the Constitutional Court to the privileges granted to the tax administration | p. 289 |
The Application to tax assessment procedures of the guarantees characteristic of penal procedures | p. 291 |
Calibrating the right to privacy: undermining banking secrecy and entrenching the right to home inviolability | p. 294 |
The unequal position of the taxpayer and tax authorities concerning the terms of payment of debts | p. 295 |
The General Understanding of the Relationship | p. 299 |
A materialised understanding | p. 299 |
A procedural understanding | p. 300 |
The Liberal Principles of Taxation | p. 303 |
Legitimacy Through Participation | p. 304 |
The Principle of Legality of Taxation | p. 305 |
Beyond the principle of legality | p. 309 |
Legitimacy Through Substantive Correctness | p. 311 |
Principles concerning the definition of tax bases | p. 312 |
Principles concerning the allocation of the tax burden according to distributive justice | p. 315 |
Tax Security (stability and certainty of the tax system) | p. 317 |
Legitimacy Through Guaranteed Implementation | p. 319 |
The Nature of tax norms and their interpretation | p. 320 |
Specific problems of application of tax law: the role of tax authorities | p. 321 |
As a Sort of Conclusion | p. 323 |
Bibliographical References | p. 335 |
Table of Cases | p. 349 |
Name Index | p. 357 |
Table of Contents provided by Syndetics. All Rights Reserved. |
ISBN: 9780792370529
ISBN-10: 079237052X
Series: Law and Philosophy Library
Audience:
Professional
Format:
Hardcover
Language:
English
Number Of Pages: 366
Published: 31st July 2001
Publisher: Springer
Country of Publication: NL
Dimensions (cm): 24.13 x 15.88
x 2.54
Weight (kg): 0.75