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Justifying Taxes : Some Elements for a General Theory of Democratic Tax Law - Agustin Jose Menendez

Justifying Taxes

Some Elements for a General Theory of Democratic Tax Law

Hardcover Published: 31st July 2001
ISBN: 9780792370529
Number Of Pages: 366

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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 Contentsp. vii
Acknowledgmentsp. xvii
The Projectp. 1
A Normative Theory of Democratic Tax Lawp. 1
Ethical Constructivismp. 3
Discursive or Deliberative Democracyp. 5
Post-positivismp. 6
Conclusion: It's Legal Theory!p. 14
Some Preliminary Questionsp. 15
A Working definition of taxes by reference to their institutional backgroundp. 15
Limits to Normative Justificationp. 21
Terminological Questionsp. 26
Plan of the Bookp. 27
Do We Need a Normative Theory of Democratic Tax Law?p. 29
Introductionp. 30
Objections to the Relevance or Importance of the Thesisp. 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 Choicep. 40
Moral emotivismp. 41
Communitarianism as a form of Scepticismp. 47
Hobbesian practical reasonp. 57
The Strong Autonomy Thesis and the Non-Law Objectionp. 67
Conceptual and normative reasons for keeping law and morality strictly separatep. 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 Lawp. 75
The Circumstances of Justicep. 76
The Practical Character of the Theoryp. 78
Democratic Tensionsp. 82
The cumulative production of lawp. 83
The basis of hopep. 83
Some Notes on the History of Taxationp. 85
Introductionp. 85
Before the Tax Statep. 87
Greece and Romep. 89
The Low Middle Ages and Feudalismp. 90
The Rise of the Tax Statep. 91
The Liberal Tax State: Ad Rem Taxesp. 93
The French Experiencep. 96
Liberists have the upper handp. 97
The Material Tax State: Personal Taxesp. 101
The Tax Crisis: A Matter of Trustp. 106
The Facts: the shrinking tax basesp. 106
Theories of the Tax Crisisp. 109
The tax crisis as a legitimacy crisisp. 111
Some provisional conclusions: once again on the need for a normative theory of democratic tax lawp. 113
Towards a Procedural Paradigm of Tax Law?p. 114
Justifying the General Obligation to Pay Taxes (1): the Structure of the Obligationp. 117
Introductionp. 117
The Peculiar Structure of the General Obligation to Pay Taxesp. 120
Taxes as the institutionalisation of the obligation to share the burdens derived from the existence of the political communityp. 120
The Tax Subsystemp. 133
Why the obligation to pay taxes is opaque towards the background duties it institutionalisesp. 135
Tax law as public and multilateralp. 138
Moving Coercion from Core to Peripheryp. 140
Against prescriptivismp. 141
Coercion as ensuring the factual conditions under which normative reasons to act applyp. 144
Taking coercion seriouslyp. 145
Some Implicationsp. 146
Justifying the General Obligation to Pay Taxes (2): The Tasks Assigned to the Tax Systemp. 149
Introductionp. 149
To Redistribute or Not to Redistribute. Liberist vs. Liberal Ideasp. 151
The Market in Search of a Justificationp. 154
The Liberist Strategyp. 154
A too narrow set of things to be justifiedp. 160
Tax Standards of Justification: What Generality? Whose Equality? Which Legal Security?p. 166
The liberist understandingp. 167
Counter-argumentsp. 169
A Positive Argument for Redistributionp. 173
Reasons internal to the tax system to include some progressive taxes in the tax mixp. 173
The general concept of tax as insurance premiump. 175
Insurance against full deprivation and the legitimacy of politicsp. 177
Brute bad luck: genetic lottery and serious handicapsp. 180
Insurance against force as the determining factor in social relationships; the initial allocation of goods and the rules of transfer in market systemsp. 183
Some Very Brief Remarks on the Management and Steering of the Economyp. 185
Justifying the General Obligation to Pay Taxes (3): An Argument for the Legitimacy of the Obligation to Obey the Lawp. 189
Introductionp. 190
Discourses of Justification in Tax Literaturep. 190
Legitimacy through participation: Knut Wicksell's approximate unanimity modelp. 191
Legitimacy through content: The causal doctrinep. 193
Legitimacy through guaranteed implementation: Distinguishing the creation and the application of taxesp. 195
The General Obligation to Obey the Lawp. 197
A Moral, not a Legal Obligationp. 198
A Basic Assistant to Practical Reasonp. 199
A general but defeasible obligationp. 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 Lawp. 206
Philosophical Anarchism: Morality and the Subjectp. 207
Avoiding the problem: Communitarian theories of the Obligation to obey the lawp. 214
A Positive Argumentp. 216
Two Preliminary Questionsp. 217
The positive groundsp. 223
Conclusion: A Complex Theory of the Legitimacy of Law as the Basis of the Obligation to Obey the Lawp. 243
Reconstructing Constitutional Reasoning on Tax Matters. The Spanish Tribunal Constitucionalp. 245
Introductionp. 246
The Spanish Transition to Democracy and the Materialisation of Taxesp. 246
Spain's troubled modernity and the Ad Rem tax systemp. 246
The coming of democracy. Tax reform as a symbolic measurep. 249
The 1978 Constitutionp. 250
The Constitutional Court at work: tax normsp. 251
Legitimacy Through Participationp. 254
The rationale for the principle of legality of taxationp. 254
Statute vs. statutory instrumentsp. 256
Statute vs. the derivative power to tax of local councilsp. 257
Statute vs. decree-lawsp. 258
The division of labour between ordinary tax statutes and the Budget Actp. 260
A Flexible understanding of the principle of legalityp. 267
Legitimacy Through Substantive Correctnessp. 268
The general understanding of the principle of equality in tax mattersp. 268
Assessing the objective tax basep. 270
From monetary standards to subjective standards of ability to payp. 279
Limits to the retroactivity of tax lawsp. 282
Legitimacy Through Guaranteed Implementationp. 288
The General Approach of the Constitutional Court to the privileges granted to the tax administrationp. 289
The Application to tax assessment procedures of the guarantees characteristic of penal proceduresp. 291
Calibrating the right to privacy: undermining banking secrecy and entrenching the right to home inviolabilityp. 294
The unequal position of the taxpayer and tax authorities concerning the terms of payment of debtsp. 295
The General Understanding of the Relationshipp. 299
A materialised understandingp. 299
A procedural understandingp. 300
The Liberal Principles of Taxationp. 303
Legitimacy Through Participationp. 304
The Principle of Legality of Taxationp. 305
Beyond the principle of legalityp. 309
Legitimacy Through Substantive Correctnessp. 311
Principles concerning the definition of tax basesp. 312
Principles concerning the allocation of the tax burden according to distributive justicep. 315
Tax Security (stability and certainty of the tax system)p. 317
Legitimacy Through Guaranteed Implementationp. 319
The Nature of tax norms and their interpretationp. 320
Specific problems of application of tax law: the role of tax authoritiesp. 321
As a Sort of Conclusionp. 323
Bibliographical Referencesp. 335
Table of Casesp. 349
Name Indexp. 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