Justifying Taxes

Some Elements for a General Theory of Democratic Tax Law

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By: Agustin Jose Menendez

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Published: 31st July 2001

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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